Maria - need some help can't seem to get any sense from my lawyer

Hi all

am new to the forum and have a problem. I'm going to try and put down here in order, what happened to me and then the questions at the end. It''s a long story, but the lawyers I am using are confusing me, and now being on the third lawyer(who I haven't even met yet) since my last two lawyers have both left the company, is shaking my confidence in them. There are other things which they have told me which also which have also caused me to lose faith, but let us start from the beginning - it;s easier.

 I have been sued by my old landlord .

 He is trying to say that I never returned him the keys to his apartment when I left.

I rented his apartment for 22 months, and paid very monthon time all bills. I left the apartment end of July 2006 , as we bought our own place. I advised the owner(verbally) and he came the day I left the apartment to inspect it.It was then he informed he would be keeping my bond(some made up reasons such as damage to apartment and because he couldnt rent it out in August. etc - he invented them on the spot). He then left saying he would denounce me - I was angry but could do nothing and left it at that.

After this time he began sending me a Burofax but to the address of his apartment where I no longer  was living, plus he then sent it to my girlfriend where she works twice. He was basically saying that we  were still living in his apartment and not paying the rent. Since this was a pack of lies and he knew it, we ignored them. (she

He never renewed the contract with me whilst living there once it expired after the first 11 months, he simpy said it automatically renewed even though the contract actually states no-prorrogable (non renewable)

His only hold on me is that there was never a record that the keys were given back. He had them when he left the apartment so I just closed the door behind me and left.  Then 5 months later we received court papers and a date for the hearing, surprised...I was!

We then found a lawyer (number 1)who said he could help but that the case was a hard one, as even though we could prove we had bought an apartment, that there was no electric or water usage in the landlords apartment for the last 5 months etc etc, since we had no proof to show we handed him the keys,to pardon the pun, was the key to his case and important. Since we had no record of having given it back we couldnt say we had terminated the contract with him.

I had many witnesses  who could vouch for me saying that I have been living elsewhere plus a witness who helped me move house. I even later discovered a witness from the office of the urbanisation who told me that she also knew that the apartment was clean and empty as the landlord had asked her to arrange cleaners to go in after we left, proving he had the key and knew it was empty.

We subpoened her for court as even though I begged her to come as a witness she would not, since she could lose her job for upsetting the owners. Laughably, in Spain a subpoena means nothing and unlike the UK where you must turn up, here it is optional and she didnt bother coming to the courts on the day of the case.The funny thing was that when the landlord heard of me trying to get her as a witness he immediately called his lawyer to say that if we gave him 1500 euros he would drop the case., fishy...?

The day came and we went to court and a few months later we won, I was ecstatic, the righteous conqeour over the bad, just like in the films...or was it.

He's appealing, says my lawyer,  We get the date, 16th September. Another strange thing in Spain is that unlike in the UK where everyone that was in the original case must show up again, over here it's just some judges in a room overlooking the original case with no witnesses or lawyers present to argue the case. Even if you want to have witnesses there you have to ask first, and even then the judge can say no.

Well guess what, 18th December we get the decision, the bad guy wins, we owe him 7 months rent pus his court costs. No appeals as this decision is final. Apparently the judge sees it that even the the contract was non renewable and no new contract was signed, it automatically turned into a permanent contract (no actual hard evidence of this just his opinion) and that the fact we never returned the key means we lose, he is in the right.

Now if that was not injustice enough, now I get to meet lawyqer number 2, who I actually know from before. He tells me there is nothing we can do. He can embargo my wages, and any goods I have, bank accounts etc to get the money, and the worst and most heartbreaking is that he can also embargo my 50% of the house, and try sell it at public auction. I am on benefits to due to the current situation which end in May, so he cant get any money there. I have some money in my bank accounts which is used to keep paying the mortgage, but that is only dole money so it's not gonna last long. We also have the joint mortgage account which only has enough for one mortgage payment in it.

The best thing to do says mr laywer is empty my account of any money and change the mortgage account into my girlfriends name. This all happened just before Christmas when I recevied the sentencing. Mr lawyer says he will call the other lawyer to see what the situation is and how it can be resolved, The fact that my mortgage is worth more than the house doesnt go well for an embargo ,but seeing what this guy has already done i wouldnt put it past him.

So off we go for christmas, and I am awating news from my laywer, but seeing as I still had heard nothing as of yesterday, I called to speak to number 2, but he's now also left teh company which leaves me with number 3 lawyer. He immediately advises me that I shouldnt be doing any of the things that number 2 lawyer has said to do! Now this is why Im very confused. Lawyer number 3 doesnt seem all there, even though he runs the office, as I had to keep suggesting things to him instead of the other way around. He then tells me that we only had 20 days in which to pay of this debt or the other guy can start proceedings to find out what I have and where he can get his money. NOW he tells me, why didnt they mention this when they got the sentencing I ask?How am I supposed to know how it works if they dont tell me?Plus if he goes to find out what I have and hwere, I also have to pay for these costs too! I am fuming with this guy. And if I hadnt called him, when was he going to call me? "The other lawyer only left a week ago" he says.

So now I am left not knowing what to do. Now the questions.

1.Is there a process or procedure that the other guy has to follow in order to get his monies, or can he just decided where to start first i.e. the house?

2.How likely is it that a judge will put up my house at auction if the guy did decide to do it, seeing as the debt is about 7000-8000 euros ( I calculate - my lawyer hasnt even found out how much I owe and its been 5 weeks)

3. If it did go up for auction, and the mortgage currently is at least 30000 more than the value of the property, how would that work if someone did buy 50% of my house? Would they have to pay a minimum of 50% of the mortgage which corresponds to my 50% of the house plus the monies owed to this guy?If so, surely noone would would even consider such a bad deal?

4. If that was the case and it didnt sell, whats his next move?

5. Is there a process like in the UK where you go to court and show how much you can afford to pay before a judge, they then stamp it and you continue to pay one pound a week like some people seem to do in the UK?Or is it just a matter between me and him, and even if I make an offer he can turn it down and that;s that?

6.Basically what are my options, what can I do, what can't I do?PLEASE HELP

If anything needs clarification or anyone has any views please let me know.

Thanks for your time.

Hi,

I am very sorry for you as I have also had a bad experience with a couple of landlords, one in the UK and one in Spain. First, I would like to say that the Justice system in Spain is not to be qualified as "strange" because it is different from that of the UK. Simply, each country has their own rules. Or I could say then that the one of the UK is "strange" by the same measure.

Regretfully, as there is no written proof of you letting the owner know that you are vacating the property or a receipt signed by the owner of the handing over of the keys, it is a case of your word against your landlady. Your only witness able to provide some kind of proof of the flat being empty (but not of you having left the house for good or having finished the rental contract) refuses to go: there are penalties if you are called as witness and you don't go, and your lawyer should tell you which are they. Your 1st lawyer seems quite useless because if in the contract it says "non extendable" then the fact of "automatically renewed" does not apply. He should have used that.

You cannot apply to the Judge for the instalments or the amount to be paid, in any case once he rules your solicitor has to appeal and fight your own terms. But in the end it is what the Judge decides, however obviously your lawyer has to make himself hear about what your income is and your assets, presenting paperwork, so that the Judge can effectively see how much could you pay without having you living in the street (there is a limit to what they can ask or seize depending on the income and assets).

To protect your money you should take all out of the bank account on your name and put it in your girlfriend's, however with the house you can't do anything unless you want to modify the Deeds and put the house on the name of your girlfriend only, but that is going to cost you in Notary, Transfer tax, etc... and maybe it is not worth it.

Generally it is the landlord who loses with tenants, but in some cases like yours it is the tenant who is not protected. All should always be in writing and kept for several years.

Good luck.

Hi Distintive,

thank you for your reply.

I just want to go through a few things you mentioned there.

1.there are penalties if you are called as witness and you don't go, and your lawyer should tell you which are they.  DO YOU KNOW WHAT THESE ARE AND IS THERE A SET TIME PERIOD BETWEEN THE DATE OF THE CASE AND NOW IN WHICH I COULD DO SOMETHING?

2.Your 1st lawyer seems quite useless because if in the contract it says "non extendable" then the fact of "automatically renewed" does not apply. MY LAYWER IN THE FIRSAT CASE DID ARGUE THIS. THEIR LAWYER ACTUALLY CHANGED HIS ARGUMENT AS BEFORE THE CASE YOU MUST PRESENT WHAT IS YOUR ARGUMENT, HOWEVER ON THE DAY HE CHANGED IT TO THIS ABOUT CHANGING TO A PERMANENT CONTRACT. MY LAWYER DID MENTION THIS IN THE CASE AND ACTUALLY MADE THE OTHER LAYWER LOOK STUPID. THE PROBLEM IS THAT IN THE APPEAL OBVIOUSLY THIS COULD NOT BE ARGUED AS NOONE WAS PRESENT, A CONTENTIOUS ISSUE FOR ME, BUT NOW NOTHING APPARENTLY CAN BE DONE.

3.You cannot apply to the Judge for the instalments or the amount to be paid, in any case once he rules your solicitor has to appeal and fight your own terms. But in the end it is what the Judge decides, however obviously your lawyer has to make himself hear about what your income is and your assets, presenting paperwork, so that the Judge can effectively see how much could you pay without having you living in the street (there is a limit to what they can ask or seize depending on the income and assets). BIT CONFUSED HERE, CAN WE GO TO THE JUDGE OR NOT AND PRESENT WHAT WE EARN?MY LAWYER SAYS NO SINCE IT IS A CIVIL CASE AND IS ONLY BOUND TO THE GOODWILL OF THE TWO PARTIES, THAT I CANNOT PLEASE POVERTY AS SUCH.

4.To protect your money you should take all out of the bank account on your name and put it in your girlfriend's, . I WAS TOLD BY MY LAWYER (NUMBER 2)TO TAKE OUT MY MONEY FROM MY ACCOUNT BUT ALSO TO CHANGE THE ACCOUNT OF OUR MORTGAGE INTO MY GIRLFRIENDS NAME ONLY INSTEAD OF BOTH OUR NAMES BUT NOW NUMBER 3 LAWYER SAYS I CAN BE CHARGED WITH CONCEALMENT OF GOODS AND THAT I SHOULD NOT HAVE DONE IT.

5. Another question which has just popped into my head. If the other guy manages to put my 50% up for auction, and my half of the house only values at 90,000 euros, but I have a mortgage which the 50% that corresponds to me is valued at 105,000 euros. Plus the monies that are owed to this guy, which my lawyer has said can double if he goes down this route, so let's say they are 14,000 euros. Does a potential buyer have to bid a minimum of 105,000 plus 14,000 to be able to buy the 50%, equalling 119,000 euros for a 90,000 value. Or can they buy at any price?

If you or anyone else can throw any light on this that would be great.

Thanks again

Dear Spainy:

I am sending a PM to you.

Best,

Maria

Hi Maria

Spainy won't be able to access PMs yet.

Well, he can always use my email address. She can find it in the contact data below.

Thanks for informing More. You are an angel.

Best wishes,

Maria

You are now in the hands of María so she will be able to answer all the legal points, I just know some because of my experiences with landlords but I am no lawyer myself so I can't answer specifically. Maria will help you more that I can. But, on your point 5 about concealing of goods, that's what everybody with money does everywhere, in case they have to go to Court: house in the name of the spouse, holiday home in the name of the son, cars in the name of the daughter, one bank account in the names of several relatives... And, the mortgage account you say, do you refer to a bank account where you deposit the money monthly for the bank to take it from there? You can call the bank and tell them that you want them to take the money from such account (on the name of your girlfriend). Then, the bank account would still be open but you just don't put any money on it and you can say that you had been thinking of doing that for the past year, who can prove that you were not?

Regarding the money to pay and deadlines, It is obvious that the Judge cannot tell you to pay €1000 a month if your income is €1100. However, if it is €1500 he might. He will not probably care about the fact that you are paying a mortgage or your other fixed expenses, he will see it that with €500 a month you can live.

I understand your last question. By logic, nobody will buy a house with a mortgage on it. The landlord will try to sell it for the mortgage amount plus the owed to him, or he will not sell it at all.. It is going to be mighty difficult to have somebody buying half a house only (and not knowing the person owner of the other half...). But, the buyer might take the morgage as well (subrogate to it, specially if the conditions are good, subrogating is cheaper that doing a new mortgage or so they say). I think the landlord will establish instalments to be paid in cash from your income (salary) because if he waits for the share of the house to be sold he will die before getting anything, real estate is not what it was. And I still think that the Judge will be fair in the instalments, and he will consider your income and fixed expenditure, he has ruled against you because the hard and cold facts of the case leaned towards the landlord but I believe he will be more considerate towards you for this. Sure and it seems that your landlord was a brother of my landlady from hell. A devilish breed.

Thanks again Distintive, and yes Maria you are right, I am still waiting to access messages so please be patient.

With regards speaking to the judge, can this actually be done then re what I earn and what I can afford?My laywer says no.

What does subrogate mean?You lost me a bit there.

Re taking it from my wages, I am on benefts which end in May and there is really nothing to take from them anyway, so unless I get another job (ha ha crisis!) what chance realistically does he have of getting any monies from me at all, except by me paying him 50 euros a month , forever, as I cannot see any other way he can get it, especially when you take into consideration the house part I mentioned earlier combined with a terrible housing market, someone would have to be mad to pay over the odds for half a house , surely?

Subrogate is take the mortgage, so, the buyer of your half would take your mortgage: then you would have no mortgage because the bank would give you the money, and take the buyer as "mortgagee".

The more you tell me about your story the sorrierI feel for you. But surely things will pick up sometime soon, one cannot have bad luck eternally.

Sorry, being a bit thick here.

I realise this might never happen but I am trying to cover every eventuality so need to go through everything thoroughly.

What money would I get from the bank? If the buyer was to take over the mortgage what money would he have to give seeing as he is still having to pay off the 105,000 via monthly payments.

Does that make sense to you? I wouldnt get anything surely?

I am very sorry about what it has happened to you and well I would need to see the Appeal decission to see if there are higher appeals and if you can go to a higher Court.

If not, yes, the  best  thing is to offer  to the judge your willingness to pay and try to settle an agreement for the payment so you can keep going with mortgage payments and life.

Best,

Maria

Well, in those 105.000 he was paying there are the 7.000 for the landlord and the rest for the bank to pay for your mortgage. So you would not receive anything in cash, you would not have a mortgage any more but no share on the house either.

HI Distintive thanks again for the reply.

Maria...is there no answer to any of the questions I have made here that you can help with, or is your advice just to pay??????