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FINCA PARCS ACTION GROUP vs CLEYTON GES SL & CAJA DE AHORROS DEL MEDITERRÁNEO
Today (Friday 8 June) we received the judgment from the First Instance Court In Hellín:
The Judge found the developer Cleyton GES SL and the Bank – Caja de Ahorros del Mediterráneo (CAM) jointly and severally liable for the repayment in full of the deposits paid (1,494,710 Euros) under the 55 Sales Contracts which were the subject of the Lawsuit, together with legal interest and costs.
This is a significant judgment as none of the buyers received the Bank Guarantees as required by Spanish Law, LEY 57/1968.
The Finca Parcs Action Group are represented by Costa Luz Lawyers and De Castro Gabinete Jurídico. We are truly grateful for their dedication, hard work and support during the past 4 years. Special thanks go to María de Castro – back in 2008 she was one of the only Lawyers who believed in my view that the Banks had a liability in such cases and to Jaime de Castro, our litigator, with whom I have worked very closely during the past 2 years.
We are currently studying the Judgment in more detail and further information will follow soon.
As in every First Instance Court judgment the defendants have the right of appeal.
Kind regards
Keith
FINCA PARCS ACTION GROUP -
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Jaime de Castro, the lawyer for the Finca Parcs Action Group said he was pleased with the ruling yesterday, and stressed that:
“It is technically flawless; it analyzes all the points, leaving no gaps and has forceful arguments that make it difficult to challenge. So I think that ultimately my clients will receive their refund in this case”
He noted that it is a decision which because of the significance of the case will be an important precedent for similar cases, and is also:
“Good for the image of Spain , its Justice System and even the financial system. Given the sensitivity of this type of issue in the United Kingdom , and the situation we are currently facing in Spain , it is good to convey the message that the system works and solves these issues fairly and expeditiously”.
Regarding the personal view of the buyers, after the group coordinator, Keith Rule was informed of the decision, he said they were elated, but commented that “it has been a very stressful process and we have endured many years of struggle and effort to defend our rights”
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@Keith110, I am delighted for all concerned and the effort, energy, determination that you had shown.
Let us hope that legal, just & fairness prevails & it does not get appealed. Knowing the Spanish ego, bloody mindedness & mentality. I am not to sure that they will let it go specially if it will set a precedence for all & sundry. I am watching this space and request Keith to keep us updated with events..
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Congratulations on the outcome. Hope it will not be a hollow victory and the only winner will turn out to be the Lawyer. The forums are full of people who have money in CAM bank and their accounts have been frozen.
Example here:
http://www.torreviejaforums.com/viewtopic.php?f=2&t=14329&start=300 -
PRESS / MEDIA RELEASE – FOR IMMEDIATE RELEASE
FINCA PARCS ACTION GROUP vs CAJA DE AHORROS DEL MEDITERRÁNEO (CAM BANK) & SPANISH DEVELOPER, CLEYTON GES SL
VICTORY FOR THE FINCA PARCS ACTION GROUP IN THE FIRST INSTANCE COURT
JUDGMENT CONDEMS CAM BANK & CLEYTON GES SL, JOINTLY AND SEVERALLY, TO RETURN THE DEPOSITS PAID BY THE GROUP MEMBERS WITH INTEREST AND LEGAL COSTS
FINCA PARCS ACTION GROUP – TIMELINE OF THE LAWSUIT
● No legally required Bank Guarantees for Off-Plan deposits totalling 1.5 million Euros
● Lawsuit against CAM Bank & developer Cleyton GES SL filed in February 2011
● First Instance Court Preliminary Hearing held on 12 January 2012
● Trial held on Monday 21 May 2012 & Tuesday 22 May 2012
● Judgment released in favour of Finca Parcs Action Group on Friday 8 June 2012
● CAM Bank and Cleyton GES SL must return deposits amounting to almost 1.5 million
euros to the buyers with the addition of legal interest and costsJUSTICE
Justice was delivered in an overwhelming manner on Friday 8 June 2012 when the Judge in the First Instance Court in Hellín found in favour of 47 buyers who make up the Finca Parcs Action Group.
The court convicted jointly and severally both defendants, the developer Cleyton GES SL and the sole financial entity of the project, Caja de Ahorros del Mediterráneo (CAM), to return the off-plan deposits paid by group members totalling almost 1.5 million euros for houses that were never built at the abandoned Las Higuericas, Finca Parcs development close to Agramón, Albacete.
Furthermore, the judgment orders the payment of interest and costs.
The Judge declared the 55 sales contracts terminated due to “serious breaches” by the developer, in particular, “the long and indefinite delay in delivery of the properties, the failure to obtain the First Occupation Licences and the lack of Bank Guarantees for deposits paid by the buyers”. The Judge also stated that CAM Bank “failed in its legal obligations to control the use of off-plan deposits paid in advance for this development”.
STRONG SENTENCE
The sentence is strong and fully in favour of the buyers.
The decision of Consuelo Romero, Judge of the First Instance Court No.2 in Hellín was announced on Friday 8 June 2012 and concludes that both the developer and financial entity failed to fulfil their legal obligations.
The ruling requires CAM and Cleyton GES, jointly and severally, to return 1,494,710 Euros in off-plan deposits paid by 47 Finca Parcs Action Group members for 55 Sales Contracts, plus interest and costs.
The costs may represent a significant amount considering that the case was started in February 2011 and has accumulated over 5,000 pages in the Courts records. In addition 70 members of the Finca Parcs Action Group were forced to travel to Spain following the request to the Court by CAM Bank for all buyers to appear in person at the trial.
In the sentence the Judge states that, “this is not just a simple delay in the delivery of the housing but in this case it can be considered as an excessive delay that has obstructed the very purpose of the contract and broken mutual good faith”.
The Judge quotes the testimony of Keith Rule, who himself paid over 53,000€ in off-plan deposits to CAM Bank, during which Mr Rule when questioned by Cleyton GES said that under no circumstances would the buyers now be willing to accept a property from the 50 completed, but unlicensed houses on Phase 1, as the delay for the buyers already amounted to between 5 and 7 years from the signing of each individual contract and completion cannot be left to the discretion of the developer indefinitely.
The Judgment states expressly that “the lack of the First Occupation Licence is attributable exclusively to the developer” and that the lack of Bank Guarantees is also “cause for termination of the contract, since it is an obligation of legal and mandatory character”.
MISMANAGEMENT, NEGLIGENCE & MALPRACTICE
Regarding the involvement of CAM Bank, which claimed it has no relationship with the buyers, the detailed and comprehensive judgment also rules in this area. The Judge quotes extensively from the preamble of LEY 57/1968 and from the Law itself and says in this regard, “we cannot ignore the testimony of the purchaser who when interrogated said that the buyers were encouraged to pay reservation deposits at the development due to the promise of Bank Guarantees from CAM and because of the intense involvement of CAM as a financial partner not only in the promotional material but also in the contract”.
CAM maintained in their defence that it was oblivious to transactions in the two ‘current accounts’ into which the buyer’s money was paid. However, in view of the documents submitted as evidence and the testimonies of those who managed the transactions in CAM and Cleyton GES, the judgment states that, “The fact is that CAM knew that the payments into Cleyton GES accounts opened at the CAM branches were payments by buyers on account of off-plan real estate purchases and CAM failed in its obligations as a financial institution under LEY 57/1968 and this behaviour can be described as malpractice”. The Judge noted that “it is clear the off-plan deposits were used in a manner contrary to the requirements of Spanish Law, LEY 57/1968”.
The Judgment also refers to the ‘special account’ and notes that, “documents submitted corroborate that the value of Bank Guarantees issued by CAM to other buyer, not party to these proceeding, amounts to approximately 6.5 million Euros, however the total payments into the ‘special account’ amount to significantly less”. Furthermore, the Judge says that “other documents submitted during the course of the trial are of importance and very interesting items are the copies of CAM Bank Guarantees issued to other buyers, not party to these proceedings, as they describe as ‘Special’ the 2 accounts, that CAM maintained throughout the trial were just ‘ordinary’”.
CONCLUSION
The Judgment concludes:
“The truth is that CAM knew that the payments made by buyers into accounts at their branches were on account of real estate purchases and CAM showed absolute disregard to the obligations imposed on financial institutions by LEY 57/1968.
We must not forget that the obligation to deposit the amounts advanced to an account opened specifically for that purpose is that of the financial institution as not only does it receive the premium of the guarantees but also benefits by way of profit from the project. In fact, CAM was the only financial entity involved in the project as it demanded exclusivity.
The claimant questioned at the trial clearly demonstrated that the buyers contacted both the developer and Bank through multiple means urging them to grant the Bank Guarantees for the deposits paid”.
APPEAL
As in any First Instance Court decision the defendants have the right of appeal.
COMMENTS FROM FINCA PARCS ACTION GROUP
JAIME DE CASTRO – LAWYER
Jaime de Castro, the lawyer for the Finca Parcs Action Group said he was pleased with the ruling yesterday, and stressed that:
“It is technically flawless; it analyzes all the points, leaving no gaps and has forceful arguments that make it difficult to challenge. So I think that ultimately my clients will receive their refund in this case”
He noted that it is a decision which because of the significance of the case will be an important precedent for similar cases, and is also:
“Good for the image of Spain, its Justice System and even the financial system. Given the sensitivity of this type of issue in the United Kingdom, and the situation we are currently facing in Spain, it is good to convey the message that the system works and solves these issues fairly and expeditiously”.
KEITH RULE – COORDINATOR – FINCA PARCS ACTION GROUP
After the group coordinator, Keith Rule was informed of the decision, he said the group members were elated, but commented that “it has been a very stressful process and we have endured many years of struggle and effort to defend our rights”
Keith continues: “For us this is a great judgment. It is a credit to the work and determination of all those involved. This is an important judgment as none of the buyers received the Bank Guarantees as required by Spanish Law, LEY 57/1968. The wider significance of this judgment should not be underestimated.
I really think this case and Judgment will be studied far and wide. As the news spreads there will be many very interested observers.
Unfortunately it does not mean that every other buyer of off-plan property in Spain without the legally required Bank Guarantees will be able to follow the same course of action against the Bank. There were several specifics in this case and the volume of evidence gathered, in our opinion, is probably unprecedented. However, parallels can be drawn between this case and similar cases on other developments and undoubtedly this First Instance Court Judgment will be used, not as a precedent, as Case Law is only established by an Appeal Court or Higher Court, but as an argument in many other future Lawsuits.
KEITH RULE’S COMMENTS ON THE LIABILITES OF THE BANKS ACCORDING TO LEY 57/1968
The Finca Parcs Action Group is represented by Costa Luz Lawyers and De Castro Gabinete Jurídico. We are truly grateful for the professionalism, dedication, hard work and support of our legal team during the past 4 years. Special thanks go to María de Castro whom I first contacted in 2008 and to Jaime de Castro, our litigator, with whom I have had the pleasure of working with very closely on this case during the past 2 years.
It now seems strange to think that in 2007 when we first realised there was a problem with the Finca Parcs project I was unable to find a single Lawyer who shared my view that the Banks had a liability in these type of cases. That was until 2008 when I found María de Castro and Costa Luz Lawyers via the Eye on Spain internet forum. If a little sceptical at first María soon realised that I was not going give up and there was only one way forward – legal action against the developer and Bank. We encountered many hurdles along the way, not least from other Lawyers who, for various reasons, did not share our philosophy.
FAIR AND TIMELY JUSTICE
As I have said many times before, the Spanish Law which grants inalienable rights to protect off-plan purchasers is not new. It was introduced in 1968; the problem is that it has been conveniently ignored by the developers and financial institutions over the past decade. The Bank of Spain and Spanish Government failed to enforce the Law and many Court Judgments over the past few years have failed to apply LEY 57/1968 correctly. The ‘spirit’ of LEY 57/1968 and its preamble are of vital importance if one is to truly understand the purpose of the Law and the reasons for its introduction.
The Finca Parcs Judgment quoted extensively not only from the Law itself but from the preamble of LEY 57/1968 and it shows that when the Law is applied correctly the Spanish Justice System works and that fair and timely justice can be delivered.
For far too long Spain has alienated the very people who once helped the country prosper.
Now the Spanish Government must learn important lessons from this case and from the Bank Guarantees in Spain Petition (http://www.bankguaranteesinspain.com). If these types of Bank Guarantee cases are dealt with in a fair and speedy manner then maybe some of those people who have been the victims of negligence and malpractice may once again have the confidence to invest in Spanish property. After all that is what Spain wants and more importantly, desperately needs.
Right now as the Finca Parcs Action Group we are enjoying the moment and focussing on the positives. But we are realistic and understand that although we have made a massive leap forward in our fight for justice we are not yet over the finishing line. We will be making a preliminary enforcement of the Judgment but also preparing ourselves for any appeal that may be submitted by either defendant.
Should an appeal be forthcoming then it will be heard by the Appeal Court in Albacete and the decision of that court would then set a precedent and may be used as Case Law in other Lawsuits.
NOTE: BANK GUARANTEES AT LAS HIGUERICAS, FINCA PARCS
Other buyers at Las Higuericas, Finca Parcs who did receive the legally required Bank Guarantees from CAM, have during the past 3 years been able to execute their Bank Guarantees and receive refunds. However, some of these buyers also encountered problems and were forced into taking individual legal action to execute their Bank Guarantees as CAM initially refused to honour the Bank Guarantees in many cases.
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Thanks Shakeel, Katy, Mark and Marios.
Our fight is not yet over – we are realistic – there may well be an appeal from the Bank and/or Developer.
But we could not have had a better result from the First Instance Court – it was a very strong Judgment.
The date of the judgment was Friday 8 June 2012. However, the Judge issued a small clarification to the Judgment on Monday 11 June 2012. This was just to confirm that ALL costs were imposed on the defendants.
So the time for appeal starts from Monday 11 June 2012. The bank and developer have 20 working days from Monday 11 June 2012 to pay the principal amount of the deposits to the Court. They also have 20 working days from Monday 11 June 2012 to submit an appeal if they so wish.
So the date for payment and/or appeal will be Tuesday 10 July 2012 14:30 CET.
If they have not submitted an appeal by that date then they will have lost the opportunity to appeal.
If they have not paid the 1,494,710€ to the court by that date we will then enforce the Judgment which will mean significant extra court costs on the defendants.
We hope that our success will help other people with Bank Guarantee issues on other Off-Plan developments in Spain.
Lets hope that many other Lawyers now see that the Courts do recognise that in certain circumstances Banks do have liabilities and obligations according to LEY 57/1968.
It is of little use just winning a case against a developer who is bankrupt, has asset stripped or is in Administration – in most cases this will not result in a return of your money as it will be almost impossible to enforce the Judgment.
If you have a strong case with evidence to back it up then file a joint Lawsuit against the Developer and Bank.
As we have shown the Banks do have liabilities and obligations according to LEY 57/1968.
I will continue to post updates here and to answer any questions.
Kind regards
Keith
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You can now download a PDF copy of the Las Higuericas Finca Parcs Full Sentence or a PDF copy of the Summary version of the Sentence by clicking the links below:
CASO LAS HIGUERICAS – FULL SENTENCE – IN SPANISH
http://www.fincaparcsactiongroup.com/Sentencia.pdf
CASO LAS HIGUERICAS – SUMMARY SENTENCE – IN SPANISH
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Sabadell CAM has filed an appeal.
We expected an appeal and so were prepared for this situation. We are still in a good position having a very strong First Instance Court Judgment against both defendants. I would much rather be in our current position than if we had lost …in the First Instance and it was us having to submit an appeal!!
With regards to the payment …………..we do not currently have any news regarding the payment. It may just be that the payment information has not yet been notified to our Procurator.
If no payment is made then we will file an enforcement application later this week.
I am aware that there is a great deal of interest in this case and that is why I am making the information available to all immediately we have it.
This is a high profile case and we do have a very strong First Instance Judgment based on the substantial evidence we presented to the court.
It will continue to remain a high profile case – I will make sure of that!
The Sabadell CAM tactic of calling all of us to appear in person at the trial really backfired on them. The Judge got to see real people in front of her and we got a lot of interest from the Spanish media – TV, Radio, Newspapers etc. So we must thank CAM for that exposure!!
Now let us hope that CAM’s latest tactic of filing an appeal will also backfire on them. It is now our chance to gain an Appeal Court Judgment against them, which will make the case even more high profile and allow others to use our success as Case Law and a precedent in their own cases!!
I am remaining very positive. Whatever the outcome I know we could not have done anymore. We have, what I believe is one of the strongest cases for buyers without Bank Guarantees – if we do not win in the Appeal court then I don’t know who can!!!!
Everyone should stay positive – this is just another hurdle on the long road to justice.
The result of the appeal will be of great interest to many people. It will be good for the image of Spain if the Appeal Court upholds the First Instance decision. Spain has a lot to gain or a lot to lose from the result of this case!!
We are aware that even after the Appeal court there is the possibility of the Case going to the Supreme Court – but let’s not entertain that thought right now!!
One step at a time.
Kind regards
Keith
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Thanks Shakeel.
Keith Rule, co-ordinator of Finca Parcs Action Group was on the BBC Radio 4 Consumer Affairs Programme ‘You and Yours’ at 12 noon – 11 July with Gerard M Vazquez – Lawyer from Vazquez Estudio Juridico
Listen here:
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PRESS / MEDIA RELEASE – FOR IMMEDIATE RELEASE
FINCA PARCS ACTION GROUP vs CAJA DE AHORROS DEL MEDITERRÁNEO (CAM BANK) & SPANISH DEVELOPER, CLEYTON GES SL
APPEAL SUBMITTED BY BANCO CAM
BANCO CAM (SabadellCAM) FILES AN APPEAL AGAINST THE FIRST INSTANCE COURT JUDGMENT WHICH SENTENCED IT TO REPAY 1.5 MILLION EUROS OF PURCHASERS DEPOSITS AT FINCA PARCS
FINCA PARCS ACTION GROUP – TIMELINE OF THE LAWSUIT
● No legally required Bank Guarantees for Off-Plan deposits totalling 1.5 million Euros
● Lawsuit against CAM Bank & developer Cleyton GES SL filed in February 2011
● First Instance Court Preliminary Hearing held on 12 January 2012
● Trial held on Monday 21 May 2012 & Tuesday 22 May 2012
● Judgment released in favour of Finca Parcs Action Group on Friday 8 June 2012
● CAM Bank and Cleyton GES SL sentenced to return deposits amounting to almost 1.5
million Euros to the buyers with the addition of legal interest and costs
● CAM Bank appeals the First Instance Court JudgmentCAM BANK APPEAL
CAM Bank, recently rebranded as SabadellCAM, has filed an appeal against the Judgment of the First Instance Court in Hellín which sentenced it along with the developer Cleyton GES SL to refund buyers deposits in the case of the Las Higuericas Finca Parcs development near Murcia, Spain.
In the First Instance Judgment CAM Bank was sentenced, jointly and severally, with Cleyton GES SL to refund almost 1.5 million Euros plus interest and costs relating to 55 sales contracts for 47 members of the Finca Parcs Action Group.
The deadline for the submission of an appeal and payment of the deposits to the Court was Tuesday 10 July 2012 and the CAM Bank Appeal was dated 9 July.
The developer, Cleyton GES SL, did not appeal the First Instance Court Judgment.
RESPONSE TO THE APPEAL
The Appeal filed by CAM Bank was admitted into the Court system on 13 July and the Finca Parcs Action Group now has 10 working days to file their opposition to the appeal.
Jaime de Castro, Lawyer for the Finca Parcs Action Group, expects a favourable decision from the Albacete Appeal Court considering “the strength of the First Instance Judgment against CAM Bank and the available Case Law relating to Banks liabilities and obligations according to Spanish Law, LEY 57/1968”
PAYMENT OF 1.5 MILLION EUROS
De Castro also announced that payment of 1,494,710 Euros had not been made to the Court by either defendant; therefore he has now “requested the provisional execution of the Judgment while the appeal process continues”.
As for the timescales for reaching a Judgment in the Appeal, De Castro said that the Albacete Appeal Court normally resolves these cases in a reasonable time, which can be between two months and one year depending on the characteristics of each case.
Throughout the trial in May, CAM Bank maintained it was not responsible for the situation and that all irregular actions and illegalities were committed only by the developer.
MISMANAGEMENT, NEGLIGENCE & MALPRACTICE
However, regarding the involvement of CAM Bank, which claimed it has no relationship with the buyers, the judgment of the First Instance Court states that:
“The truth is that CAM knew that the payments made by buyers into accounts at their branches were on account of real estate purchases and CAM showed absolute disregard to the obligations imposed on financial institutions by LEY 57/1968 and this behaviour can be described as banking malpractice. It is clear the off-plan deposits were used in a manner contrary to the requirements of Spanish Law, LEY 57/1968.
We must not forget that the obligation to deposit the amounts advanced to an account opened specifically for that purpose is that of the financial institution as not only does it receive the premium of the guarantees but also benefits by way of profit from the project”
SabadellCAM
CAM Bank was taken over by the Bank of Spain in July 2011 and then sold to Banco Sabadell for One Euro at the end of 2011. The report produced for the Bank of Spain by the FROB described the many irregularities committed by the former CAM managers, especially the reckless real estate lending and the granting of annuities and pensions to senior management.
In March 2011 CAM reported profits of 38.9 million Euros, however just 3 months later its accounts showed losses of 1,136 million Euros.
In 2011 the Bank of Spain described CAM as ‘Scandalous’ and called the Bank ‘The Worst of The Worst’.
The CAM senior managers to whom the Finca Parcs Action Group took their complaint in 2009 are currently appearing in the High Court accused of committing corporate crime, price manipulation, embezzlement, fraud and misappropriation.
Last week CAM Bank was liquidated after 137 years as a Savings Bank (Caja) and the CAM business is now incorporated under the Banco Sabadell brand as SabadellCAM.
APPEAL WAS EXPECTED
Keith Rule, coordinator of the Finca Parcs Action Group said:
“We expected an appeal from CAM and were therefore prepared to respond accordingly. We are in a good position with a high profile case and a very strong First Instance Judgment against both defendants.
Our fight is not yet over; this is just another hurdle that CAM is putting in our way on the long road to Justice. However, we remain positive and I believe we have one of the strongest cases of its type – that of buyers without Bank Guarantees.
The First Instance Judgment was a landmark ruling and therefore the result of the appeal will be eagerly awaited by many thousands of buyers of off-plan property in Spain.
It is clear from the First Instance Judgment that Banks do have liabilities and obligations according to Spanish Law, LEY 57/1968. This law was introduced in the public interest in 1968 specifically to protect purchasers’ deposits when purchasing off-plan properties in Spain. It was even strengthened by the Building Act of 1999 but has been largely ignored by the developers and Banks over the past decade.
If the Law had been adhered to and properly enforced during the real estate boom then the Banks would not have lent so recklessly to builders and developers as they would have been restricted by the liabilities imposed on them by LEY 57/1968.
Let’s hope that many other Lawyers now see that the Courts do recognise that in certain circumstances Banks do have liabilities and obligations according to LEY 57/1968”
BBC RADIO 4 INTERVIEW
Keith Rule, coordinator of the Finca Parcs Action Group was interviewed by Radio 4 on Wednesday 11 July. You can listen to that interview on the link below:
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PRESS / MEDIA RELEASE – FOR IMMEDIATE RELEASE
FINCA PARCS ACTION GROUP vs CAJA DE AHORROS DEL MEDITERRÁNEO (CAM BANK) & SPANISH DEVELOPER, CLEYTON GES SL
APPEAL SUBMITTED BY BANCO CAM
BANCO CAM (SabadellCAM) FILES AN APPEAL AGAINST THE FIRST INSTANCE COURT JUDGMENT WHICH SENTENCED IT TO REPAY 1.5 MILLION EUROS OF PURCHASERS DEPOSITS AT FINCA PARCS
FINCA PARCS ACTION GROUP – TIMELINE OF THE LAWSUIT
● No legally required Bank Guarantees for Off-Plan deposits totalling 1.5 million Euros
● Lawsuit against CAM Bank & developer Cleyton GES SL filed in February 2011
● First Instance Court Preliminary Hearing held on 12 January 2012
● Trial held on Monday 21 May 2012 & Tuesday 22 May 2012
● Judgment released in favour of Finca Parcs Action Group on Friday 8 June 2012
● CAM Bank and Cleyton GES SL sentenced to return deposits amounting to almost 1.5
million Euros to the buyers with the addition of legal interest and costs
● CAM Bank appeals the First Instance Court JudgmentCAM BANK APPEAL
CAM Bank, recently rebranded as SabadellCAM, has filed an appeal against the Judgment of the First Instance Court in Hellín which sentenced it along with the developer Cleyton GES SL to refund buyers deposits in the case of the Las Higuericas Finca Parcs development near Murcia, Spain.
In the First Instance Judgment CAM Bank was sentenced, jointly and severally, with Cleyton GES SL to refund almost 1.5 million Euros plus interest and costs relating to 55 sales contracts for 47 members of the Finca Parcs Action Group.
The deadline for the submission of an appeal and payment of the deposits to the Court was Tuesday 10 July 2012 and the CAM Bank Appeal was dated 9 July.
The developer, Cleyton GES SL, did not appeal the First Instance Court Judgment.
RESPONSE TO THE APPEAL
The Appeal filed by CAM Bank was admitted into the Court system on 13 July and the Finca Parcs Action Group now has 10 working days to file their opposition to the appeal.
Jaime de Castro, Lawyer for the Finca Parcs Action Group, expects a favourable decision from the Albacete Appeal Court considering “the strength of the First Instance Judgment against CAM Bank and the available Case Law relating to Banks liabilities and obligations according to Spanish Law, LEY 57/1968”
PAYMENT OF 1.5 MILLION EUROS
De Castro also announced that payment of 1,494,710 Euros had not been made to the Court by either defendant; therefore he has now “requested the provisional execution of the Judgment while the appeal process continues”.
As for the timescales for reaching a Judgment in the Appeal, De Castro said that the Albacete Appeal Court normally resolves these cases in a reasonable time, which can be between two months and one year depending on the characteristics of each case.
Throughout the trial in May, CAM Bank maintained it was not responsible for the situation and that all irregular actions and illegalities were committed only by the developer.
MISMANAGEMENT, NEGLIGENCE & MALPRACTICE
However, regarding the involvement of CAM Bank, which claimed it has no relationship with the buyers, the judgment of the First Instance Court states that:
“The truth is that CAM knew that the payments made by buyers into accounts at their branches were on account of real estate purchases and CAM showed absolute disregard to the obligations imposed on financial institutions by LEY 57/1968 and this behaviour can be described as banking malpractice. It is clear the off-plan deposits were used in a manner contrary to the requirements of Spanish Law, LEY 57/1968.
We must not forget that the obligation to deposit the amounts advanced to an account opened specifically for that purpose is that of the financial institution as not only does it receive the premium of the guarantees but also benefits by way of profit from the project”
SabadellCAM
CAM Bank was taken over by the Bank of Spain in July 2011 and then sold to Banco Sabadell for One Euro at the end of 2011. The report produced for the Bank of Spain by the FROB described the many irregularities committed by the former CAM managers, especially the reckless real estate lending and the granting of annuities and pensions to senior management.
In March 2011 CAM reported profits of 38.9 million Euros, however just 3 months later its accounts showed losses of 1,136 million Euros.
In 2011 the Bank of Spain described CAM as ‘Scandalous’ and called the Bank ‘The Worst of The Worst’.
The CAM senior managers to whom the Finca Parcs Action Group took their complaint in 2009 are currently appearing in the High Court accused of committing corporate crime, price manipulation, embezzlement, fraud and misappropriation.
Last week CAM Bank was liquidated after 137 years as a Savings Bank (Caja) and the CAM business is now incorporated under the Banco Sabadell brand as SabadellCAM.
APPEAL WAS EXPECTED
Keith Rule, coordinator of the Finca Parcs Action Group said:
“We expected an appeal from CAM and were therefore prepared to respond accordingly. We are in a good position with a high profile case and a very strong First Instance Judgment against both defendants.
Our fight is not yet over; this is just another hurdle that CAM is putting in our way on the long road to Justice. However, we remain positive and I believe we have one of the strongest cases of its type – that of buyers without Bank Guarantees.
The First Instance Judgment was a landmark ruling and therefore the result of the appeal will be eagerly awaited by many thousands of buyers of off-plan property in Spain.
It is clear from the First Instance Judgment that Banks do have liabilities and obligations according to Spanish Law, LEY 57/1968. This law was introduced in the public interest in 1968 specifically to protect purchasers’ deposits when purchasing off-plan properties in Spain. It was even strengthened by the Building Act of 1999 but has been largely ignored by the developers and Banks over the past decade.
If the Law had been adhered to and properly enforced during the real estate boom then the Banks would not have lent so recklessly to builders and developers as they would have been restricted by the liabilities imposed on them by LEY 57/1968.
Let’s hope that many other Lawyers now see that the Courts do recognise that in certain circumstances Banks do have liabilities and obligations according to LEY 57/1968”
BBC RADIO 4 INTERVIEW
Keith Rule, coordinator of the Finca Parcs Action Group was interviewed by Radio 4 on Wednesday 11 July. You can listen to that interview on the link below:
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For those who are interested:
APPEAL UPDATE
Banco CAM filed a 44 Page Appeal (Recurso de Apelacíon) to the First Instance Court judgement on 10 July 2012.
On 26 July we submitted our 57 Page Opposition (Oposición al Recurso de Apelación) to the Banco CAM Appeal and this was delivered to the Court and stamped/sealed the same day.
Three Magistrates will preside over the Appeal at the Audiencia Provincial de Albacete (Albacete Appeal Court). We expect a decision within one year.
The developer Cleyton GES SL did not appeal the First Instance judgement.
We remain confident and are very optimistic of a successful outcome to the Appeal. This is a high profile case and will continue to receive a great deal of media coverage. If we gain a successful outcome in the Appeal then this will create Case Law which can be used by others as a precedent in other similar cases.
PAYMENT OF 1,494,710€ – THE PRINCIPAL AMOUNT OF THE DEPOSITS CLAIMED
On 18 July 2012, we filed a DEMANDA DE EJECUCIÓN PROVISIONAL (Provisional Execution Demand) to the court for the amount of 1,494,710 Euros plus interest and costs.
This was admitted by the Court on 19 July 2012 and on the same day the Court issued an ‘assets seizing/freezing order’ against both defendants – Banco CAM S.A.U and Cleyton GES SL.
The ‘freezing order’ was also sent to the following Banks:
Banco CAM S.A.U
Banco Bilbao Vizcaya Argentaria S.A
Banco Santander S.A
Banco Pastor S.A
Banco Popular Español S.A
Bankinter S.A
Banca March S.A
La Caixa (Caixabank S.A)
Ciaxa Catalunya
UnicajaThese banks are instructed by the Court to freeze any account(s) in the name of Cleyton GES SL or Banco CAM S.A.U with sufficient funds (combined or otherwise) to cover the 1,494,710€ principal amount plus a sum which has tentatively been set as the provisional amount for interest & costs. The interest and costs will be calculated and confirmed at a later date by the court.
Both defendants had 5 working days to oppose the ‘freezing order’.
To date we have not been notified of any opposition to the freezing order having been filed to the Court by either defendant.
More information to follow…………..
Kind regards
Keith
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Hi Keith,
I am curious that they have not appealed against the freezing order !!!! The accounts may not have any significamt amounts in them and further if they had appealed it. It would have given them time to drag this in the Courts for months/years.Another question that comes to mind why did your group not ask for embargoes onto their property portfolio’s in addition to the Bank accounts. I appreciate that that the property values would/could be decreasing in value at least you all had a tangible asset to embargo !!!!
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Hi Shakeel
Neither Banco CAM (SabadellCAM) or Cleyton GES – the developer, opposed the freezing order. It was a freezing order covering assets as well as bank accounts. Cleyton GES, the developer, does not have any assets and I doubt they have any money in any account in their name. Banco CAM has interim possession of the Finca Parcs site as they are the single largest creditor.
Last week the Ayuntamiento in Hellín cancelled/withdrew the licence to build from Cleyton GES as they failed to complete the project in the time allowed under the original contract signed with the Town Hall in 2005. Cleyton GES abandoned the development in May 2009. The Town Hall has exectued the security/bond that was lodged by Cleyton GES when the contract to build was signed in 2005. Banco CAM now owns the 50 or so properties (out of 617) that were completed but if they wish to continue with the Urbanisation at anytime in the future then Banco CAM or any other developer must first submit a new draft plan to the Town Hall for approval and must apply for a new building licence.
Banco CAM (SabadellCAM) certainly does have accounts with other Banks which contains funds – overnight clearing accounts etc.
That is why the vital part of our action was to include the Bank in the Lawsuit………….and to gain a judgment against the Bank and Developer – jointly & severally.
Kind regards
Keith
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UPDATE – BANCO CAM (SabadellCAM) PAYS 1,494,710€ TO THE COURT BANK ACCOUNT
We have just been informed that following the filing of our Provisional Execution/Enforcement Demand on 18 July 2012 in relation to our Lawsuit, Banco CAM has today paid the 1,494,710€ to the Court Bank account. This is the principal amount of the deposits claimed in our Lawsuit.
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Thanks: Keith your explanation now makes sense. Whilst what cleyton GES done is expected and wuld have happened in most Countries.
The Council could not be given a pat on the back as Cancellation of their licence was a natural course and I cant see what else they could have done.
Please to read that the amount excluoding cost etc is now been deposited. I suppose this is with the Courts !!!!!!!!!!!.
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PRESS / MEDIA RELEASE – FOR IMMEDIATE RELEASE – 10 AUGUST 2012
FINCA PARCS ACTION GROUP vs CAJA DE AHORROS DEL MEDITERRÁNEO (CAM BANK) & SPANISH DEVELOPER, CLEYTON GES SL
LEGAL PROCESS FORCES CAM BANK TO REFUND OFF-PLAN DEPOSITS
CAM BANK PAYS FULL AMOUNT OF THE BUYERS DEPOSITS PLUS LEGAL INTEREST AND COSTS TO THE COURT FOLLOWING THE FILING OF A PROVISIONAL ENFORCEMENT ORDER BY FINCA PARCS ACTION GROUP
FINCA PARCS ACTION GROUP – TIMELINE OF THE LEGAL ACTION
● 2006 – No legally required Bank Guarantees for Off-Plan deposits totalling 1.5 million
Euros
● February 2011 – Lawsuit against CAM Bank & developer Cleyton GES SL filed to Court
● 12 January 2012 – First Instance Court Preliminary Hearing
● 21 & 22 May 2012 – Trial held in First Instance Court – Hellín
● 8 June 2012 – Judgment released in favour of Finca Parcs Action Group
● CAM Bank and Cleyton GES SL sentenced to return deposits amounting to almost 1.5
million Euros to the buyers with the addition of legal interest and costs
● July 2012 – CAM Bank appeals the First Instance Court Judgment
● July 2012 – Finca Parcs Action Group submits Opposition to the CAM Appeal
● July 2012 – Finca Parcs Action Group file Provisional Enforcement Order to the Court
● August 2012 – CAM Bank pays full amount of deposits plus legal interest and costs
to the Court
● Appeal to be heard by the Albacete Appeal Court – decision expected within 1 yearPROVISIONAL ENFORCEMENT ORDER
Following the Finca Parcs trial in May of this year Spanish property developer Cleyton GES SL and CAM Bank (now SabadellCAM) were convicted jointly and severally by the First Instance Court to repay in full the off-plan deposits paid by members of the Finca Parcs Action Group plus interest and costs. Cleyton GES SL did not appeal the First Instance Court Judgment; however neither defendant paid the funds to the Court within the time limit set by the Judgment. Therefore the Finca Parcs Action Group filed a Provisional Enforcement Order with the Court which resulted in CAM paying the full value of the deposits plus the amount tentatively set for interest and costs to the Court.
Keith Rule coordinator of the Finca Parcs Action Group comments:
“We continue to make progress in this case and it shows that the Provisional Enforcement Order can work in a timely and efficient manner if you are enforcing a judgment against a solvent entity. Our case differs to other similar cases due to the fact that we also included the Bank in our Lawsuit. We filed our Provisional Enforcement Order with the Court on 18 July, it was admitted and enforced by the Court against both defendants on 19 July and on 1 August CAM paid the full amount to the Court. In due course the Court will transfer the funds to our Lawyers client account and we will have ‘interim’ possession of our funds pending the result of the Appeal”.
OPPOSITION TO THE CAM BANK APPEAL
Finca Parcs Action Group filed their Opposition to the CAM Bank Appeal on time and the Appeal will now be heard by the Albacete Appeal Court.
Keith explains, “The Appeal is not a physical hearing so we will not be called to appear in person again. Three magistrates in the Albacete Appeal Court will preside over the Appeal reviewing all the evidence and the first instance Judgment. Based on the timescales of other appeals in the Albacete jurisdiction, we expect the appeal decision to be released within one year”.
Jaime de Castro, Lawyer for the Finca Parcs Action Group comments, “After reviewing the Banco CAM appeal and submitting our Opposition to that Appeal, I feel confident of a successful outcome in this case given the strength of the First Instance Judgment against CAM and the available Case Law relating to Banks liabilities and obligations according to Spanish Law, LEY 57/1968”
Maria de Castro, Director of Costa Luz Lawyers, one of the two legal teams that have been working on this and other similar cases over the past few years adds, “The success of this appeal will enhance confidence in our judicial and banking systems abroad which have been severely weakened during these years of crisis. We are confident that the precise interpretation of LEY 57/1968 by the courts will help to encourage future real estate investment by ensuring that these abuses do not occur again”
Despite its actions being described by the First Instance Judge as ‘banking malpractice’ CAM Bank continues to maintain that it is not responsible for the situation and that all irregular actions and illegalities were committed only by the developer.
APPEAL DECISION EAGERLY AWAITED BY OTHER OFF-PLAN VICTIMS
Other buyers of off-plan property who were not issued with the legally required bank guarantees will be awaiting the outcome of this appeal with interest as an Appeal Court decision can be used as a Case Law precedent in other similar cases.
Keith says; “During the past few years buyers without Bank Guarantees were advised to take legal action only against the developer. They win the case, but enforcing the judgment proves very difficult as on most occasions the developers have asset stripped, gone missing, declared bankruptcy or entered Administration.
For buyers in that situation it is important their cases are now reviewed by their legal teams to see if they have the necessary evidence required to file a Lawsuit against either the Bank who knowingly accepted the off-plan deposit and failed in its legal obligation to issue or verify the existence of the corresponding Bank Guarantee or against a Bank who may have issued a Generic or Collective Bank Guarantee to the developer”.
LICENCE TO BUILD AT LAS HIGUERICAS, FINCA PARCS EXPIRES
The Ayuntamiento de Hellín (Hellín Town Hall) has issued a Resolución de la Adjudicación
del Programa de Actuación Urbanizadora en el sector de Las Higuericas.The result of this is that Finca Parcs developer Cleyton GES SL has had the contract for the licence to build the Las Higuericas Finca Parcs development cancelled after they failed to complete the urbanisation within the time limit set according to the Contract signed with the Town Hall.
The Town Hall has now claimed the funds under the security bond that was given by Cleyton GES SL at the time of signing the contract.
Cleyton GES SL abandoned the Las Higuericas Finca Parcs project in May 2009 completing only 10% of the planned 617 detached villas and none of the properties were granted a First Occupation Licence.
CAM Bank (SabadellCAM) as the single largest creditor now owns the properties that were constructed but they or any other developer or promoter cannot continue with the Urbanisation without first submitting a new draft plan to the Town Hall and requesting a new licence.
HUGE FOREST FIRE ALMOST DESTROYS LAS HIGUERICAS, FINCA PARCS
In July a huge forest fire burned out of control for 2 days in the mountains of the Sierra de los Donceles. The fire came very close to the Las Higuericas Finca Parcs site and although the infrastructure was not affected, much of the forest area at the back of the site was destroyed.
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PRESS / MEDIA RELEASE – FOR IMMEDIATE RELEASE – 10 OCTOBER 2012
FINCA PARCS ACTION GROUP vs CAJA DE AHORROS DEL MEDITERRÁNEO (CAM BANK) & SPANISH DEVELOPER, CLEYTON GES SL
APPEAL COURT DECISION DUE IN MARCH 2013
FINCA PARCS ACTION GROUP – TIMELINE OF THE LEGAL ACTION
● 2006 – No legally required Bank Guarantees for Off-Plan deposits totalling 1.5 million
Euros
● February 2011 – Lawsuit against CAM Bank & developer Cleyton GES SL filed to Court
● 12 January 2012 – First Instance Court Preliminary Hearing
● 21 & 22 May 2012 – Trial held in First Instance Court – Hellín
● 8 June 2012 – Judgment released in favour of Finca Parcs Action Group
● CAM Bank and Cleyton GES SL sentenced to return deposits amounting to almost 1.5
million Euros to the buyers with the addition of legal interest and costs
● July 2012 – CAM Bank appeals the First Instance Court Judgment
● July 2012 – Finca Parcs Action Group submits Opposition to the CAM Appeal
● July 2012 – Finca Parcs Action Group file Provisional Enforcement Order to the Court
● August 2012 – CAM Bank pays full amount of deposits plus legal interest and costs
to the Court
● Appeal to be heard by the Albacete Appeal Court
● Appeal to be decided on 4 March 2013
● Appeal decision will be announced by the end of March 2013APPEAL BY CAM BANK
Following the Finca Parcs trial in May of this year involving 47 buyers at the Las Higuericas Finca Parcs development near Murcia, Spanish property developer Cleyton GES SL and CAM Bank (now SabadellCAM) were sentenced jointly and severally by the First Instance Court to repay in full the off-plan deposits paid by members of the Finca Parcs Action Group plus interest and costs. Cleyton GES SL did not appeal the First Instance Court Judgment; however CAM Bank did Appeal.
DATE ANNOUNCED FOR APPEAL DECISION
Finca Parcs Action Group filed their Opposition to the CAM Bank Appeal and the Appeal was admitted into the Albacete Appeal Court on 3 September 2012.
4 March 2013 is the date that has recently been announced by the Court as the day that the Appeal Court Magistrates will make their decision. The decision will be notified to all parties by the end of March 2013.
Coordinator of the Finca Parcs Action Group, Keith Rule explains;
“Three magistrates from the Albacete Appeal Court have been appointed to this case and will preside over the Appeal. They will make their decision on 4 March 2013. The decision will be released and notified to all parties by the end of March 2013 at the latest”.
CONFIDENCE
Keith says that both he and their legal team are very confident that the appeal court will dismiss CAM’s appeal and uphold the First Instance Court sentence in full.
He says;
“We have a very strong First Instance Sentence and our opposition to CAM’s Appeal included a significant amount of Case Law on the issue of banks liabilities according to Spanish Law, LEY 57/1968”
Jaime de Castro, Lawyer for the Finca Parcs Action Group comments;
“The most important steps have been taken and I have confidence that we will win primarily by the strength of the First Instance judgment and due to the number of favourable case law examples that already exist today which outline the responsibilities and obligations of the banks with respect to buyers who have large sums of money at risk on these off-plan purchases, all in accordance with Law 57/68”
Maria de Castro, Director of Costa Luz Lawyers, one of the two legal teams that have been working on this and other similar cases over the past 4 years adds;
“We are confident that the correct and accurate interpretation of Law 57/68 by the courts will be of interest to many people and families who bought off plan and are currently affected by similar problems. We look forward to the Albacete Appeal Court Judgment due next March”.
Despite its actions being described by the Judge as ‘banking malpractice’ CAM Bank continues to maintain that it is not responsible for the situation and that all irregular actions and illegalities were committed only by the developer.
APPEAL DECISION EAGERLY AWAITED BY OTHER OFF-PLAN VICTIMS
Other buyers of off-plan property in Spain who were not issued with the legally required bank guarantees to protect their deposits are awaiting the outcome of this case with interest as an Appeal Court decision can be used as a Case Law precedent in other similar cases.
Keith says;
“There is great interest in our Finca Parcs case from thousands of other off-plan buyers who did not receive the legally required Bank Guarantees many of whom have their life savings at risk. We have always believed that according to LEY 57/1968 banks have a liability in these types of cases. We have worked tirelessly since 2008 to highlight this issue in the media and amongst buyers of off-plan properties in Spain. As a result we are seeing successful judgments against Banks in other similar cases as victims of Bank Guarantee abuse begin to benefit from sentences now being released by many Courts.
Keith concludes;
“We are confident that in March our landmark First Instance Sentence against CAM Bank will be upheld in full by the Albacete Appeal Court”
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PRESS / MEDIA RELEASE – FOR IMMEDIATE RELEASE – 27 FEBRUARY 2013
FINCA PARCS ACTION GROUP vs CAJA DE AHORROS DEL MEDITERRÁNEO (CAM BANK) & SPANISH PROPERTY DEVELOPER, CLEYTON GES SL
ALBACETE APPEAL COURT DECISION DUE IN MARCH & SECOND LAWSUIT FILED IN THE FIRST INSTANCE COURT
FINCA PARCS ACTION GROUP – TIMELINE OF THE LEGAL ACTION – LAWSUIT 1
● 2006 – No legally required Bank Guarantees for Off-Plan deposits totalling 1.5 million
Euros
● February 2011 – Lawsuit 1 against CAM Bank & developer Cleyton GES SL filed to Court
● 12 January 2012 – First Instance Court Preliminary Hearing
● 21 & 22 May 2012 – Trial held in First Instance Court – Hellín
● 8 June 2012 – Judgment released in favour of Finca Parcs Action Group
● CAM Bank and Cleyton GES SL sentenced to return deposits amounting to almost 1.5
million Euros to the buyers with the addition of legal interest and costs
● July 2012 – CAM Bank appeals the First Instance Court Judgment
● July 2012 – Finca Parcs Action Group submits Opposition to the CAM Appeal
● July 2012 – Finca Parcs Action Group file Provisional Enforcement Order to the Court
● August 2012 – CAM Bank pays full amount of deposits plus legal interest and costs
to the Court
● Appeal to be heard by the Albacete Appeal Court
● Appeal to be decided on 4 March 2013
● Appeal decision will be announced by the end of March 2013APPEAL BY CAM BANK (BANCO SABADELL)
Following the Finca Parcs trial in May 2012 involving 47 buyers at the Las Higuericas Finca Parcs development near Murcia, Spanish property developer Cleyton GES SL and CAM Bank (now SabadellCAM) were sentenced ‘jointly and severally’ liable by the First Instance Court to repay in full the off-plan deposits amounting to just under 1.5 million Euros paid by members of the Finca Parcs Action Group plus interest and costs. Cleyton GES SL did not appeal the First Instance Court Judgment; however CAM Bank did Appeal.
APPEAL DECISION TO BE ANNOUNCED MARCH 2013
The Albacete Appeal Court Magistrates will make their decision on the CAM Bank Appeal on 4 March 2013. The decision will be notified to all parties by the end of March 2013.
CONFIDENCE
Coordinator of the Finca Parcs Action Group, Keith Rule says that both he and their legal team at Costa Luz Lawyers/De Castro remain confident that the appeal court will dismiss CAM’s appeal and uphold the First Instance Court sentence in full.
He says;
“We have a very strong First Instance Sentence and our opposition to CAM’s Appeal included a significant amount of Case Law on the issue of banks liabilities according to Spanish Law, LEY 57/1968. The number of examples of Case Law confirming the responsibilities and obligations of the banks according to LEY 57/1968 is increasing each month”
Despite its actions being described by the First Instance Judge as ‘banking malpractice’ CAM Bank continues to maintain that it is not responsible for the situation and that all irregular actions and illegalities were committed only by the developer.
APPEAL DECISION EAGERLY AWAITED BY OTHER OFF-PLAN VICTIMS
Other buyers of off-plan property in Spain who were not issued with the legally required Bank Guarantees to protect their deposits are awaiting the outcome of this case with interest as an Appeal Court decision can be used as a Case Law precedent in other similar cases.
Keith says;
“There remains great interest in our Finca Parcs case from other buyers of off-plan property in Spain who did not receive the legally required Bank Guarantees many of whom have their life savings at risk. We have always believed that according to LEY 57/1968 banks have a liability in these types of cases. We have worked tirelessly since 2008 to highlight this issue in the media and to the Spanish & British Governments.
Keith concludes;
“We are confident that in March our landmark First Instance Sentence against CAM Bank will be upheld in full by the Albacete Appeal Court”
SECOND LAWSUIT FILED ON BEHALF OF 13 MORE GROUP MEMBERS
In December 2012 Finca Parcs Action Group filed a second Lawsuit against the developer Cleyton GES SL and CAM Bank for another 13 group members who were not members of the group at the time Lawsuit 1 was filed in February 2011. This second Lawsuit was admitted into procedure at the First Instance Court in Hellín on 2 January 2013 and was recently served on both defendants.
The value of deposits claimed by the 13 buyers in the second Lawsuit is just under 500,000 Euros.
CAM Bank & Cleyton GES must now submit their defence to the second Lawsuit and then the First Instance Court in Hellín will set a date for the Preliminary Hearing with a full trial to follow thereafter should a settlement not be reached in the meantime.
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It’s so sad to read of this and similar cases, all stretching back years and years, with the banks and developers using all sorts of foul tactics to avoid repaying what they owe.
I hope the final outcome won’t be affected by the banks and developers having gone bust – long ago.
I walked past a former CAM bank earlier, now renamed Sabadell/Sol, which had a large advertisement in their window to attract expat customers It said, in English, something like ‘we are on your side’.
They must be joking.
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FINCA PARCS ACTION GROUP v BANCO CAM – IN THE ALBACETE APPEAL COURT
THE BANCO CAM APPEAL HAS BEEN DISMISSED.
VICTORY FOR FINCA PARCS ACTION GROUP IN THE ALBACETE APPEAL COURT!!!
AUDIENCIA PROVINCIAL DE ALBACETE SECCION PRIMERA
Apelación Civil 272/12
SENTENCIA NUM. 76
IN THE NAME OF THE KING
In Albacete 11 April 2013
DECISION
We dismiss the appeal filed by the representation of BANCO CAM S.LU. against the judgment of 8 June 2012 in ordinary procedure 182/11 issued by the Lady Judge of the First Instance Court No. 2 of Hellin. We CONFIRM that decision and order the appellant (BANCO CAM S.L.U.) to pay the costs of this appeal.
Congratulations to all!!!!
Kind regards
Keith
FINCA PARCS ACTION GROUP -
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FINCA PARCS ACTION GROUP vs BANCO CAM & CLEYTON GES SL – LAWSUIT 1
We have just received information from our Procurator to confirm that CAM Bank is NOT appealing to the Supreme Court for Finca Parcs Action Group Lawsuit 1.
So the Sentence issued by the First Instance Court in Hellín (8 June 2012) and confirmed by the Provincial Appeal Court in Albacete (11 April 2013) is now FIRM and FINAL.
FPAG Lawsuit 1 – CASE CLOSED.
The First Instance Court in Hellín has released to our legal team the principal amount of the deposits (1.494.710€) which the Court has been holding since CAM Bank paid following our provisional enforcement in July 2012.
In due course the 47 group members will each receive a refund of the Principal amount of their off-plan deposit, less costs.
Interest and Costs will then be calculated, agreed by the Court and paid in approximately 2 to 3 months.
Keith
FINCA PARCS ACTION GROUP -
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@keith: Congratulations: It humbles me. If you were in front of me I would have given you a big hug & buy you a whole bottle of Moet.
I hope that the people can now close this sad chapter & move on in life. Sadly their dreams had be shattered and Spain has lost them & their future generations as prospective buyers.
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PRESS / MEDIA RELEASE – FOR IMMEDIATE RELEASE – 15 MAY 2013
FINCA PARCS ACTION GROUP vs CAJA DE AHORROS DEL MEDITERRÁNEO (CAM BANK) & SPANISH PROPERTY DEVELOPER, CLEYTON GES SL
FINCA PARCS – LAWSUIT 1 – CASE CLOSED
FIRST INSTANCE & APPEAL COURT SENTENCES NOW FIRM AGAINST CAM BANK & CLEYTON GES
NO SUPREME COURT APPEAL FROM CAM BANK – CASE CLOSED
Disgraced CAM Bank once described by the Governor of the Bank of Spain as the ‘worst of the worst’ has not filed an Appeal to the Supreme Court in the Finca Parcs case. Therefore, the Sentence issued by the First Instance Court in Hellín on 8 June 2012 and confirmed by the Albacete Provincial Appeal Court on 11 April 2013 is now FIRM and FINAL against both CAM Bank (now SabadellCAM) & the property developer, Cleyton GES SL.
The First Instance Sentence that was ratified by the Provincial Appeal Court concluded that both the developer and Bank failed to fulfil their legal obligations according to Spanish Law, LEY 57/1968 and that CAM Bank was guilty of malpractice and a complete dereliction of its duties.
The Court convicted jointly and severally both defendants to return off-plan deposits paid by the 47 buyers totalling almost 1.5 million Euros for houses that were never built at the abandoned Las Higuericas, Finca Parcs development close to Agramón, Albacete.
BUYER’S REFUNDS
As the Sentence is now firm the Court has released the principal amount of the group member’s deposits which was paid by CAM Bank to the Court following the provisional enforcement of the First Instance Sentence in July 2012.
In due course the 47 group members will each receive a refund of their off-plan deposits less costs.
Interest and Costs will be calculated, agreed by the Court, and then paid to group members in approximately 2 to 3 months.
Finca Parcs Action Group Co-ordinator, Keith Rule says:“This is a momentous day, one that many of the group members thought they would never see. We were elated in June 2012 when we won in the First Instance Court and again in April 2013 when we won in the Appeal Court. However, today is probably more significant as it marks the end of the case with a firm and final Sentence against both the Bank & Developer.
We provisionally enforced the First Instance Sentence in July 2012 and this resulted in CAM Bank paying the principal amount of the deposits to the Court. As the decision is now final the Court has released the funds payment to each group member.
Since paying my off-plan deposit in 2006 I always believed that the banks have liabilities and obligations according to Spanish Law, LEY 57/1968. One of my biggest hurdles in 2008 and 2009 was finding a Lawyer who also shared my view.
The fact that we now have a firm and final decision in this case is evidence that there has always been substance to my views and opinions in cases such as this.
The true measure of success in the legal process is to obtain the refund of the off-plan deposits. We have now achieved that.
I would like to thank María de Castro, director of Costa Luz Lawyers, for trusting my views back in 2008 and having the confidence to support and assist me in building such a strong case against both the developer and bank. Also we are truly grateful to Jaime de Castro, our litigator who at all times worked in such a professional, efficient and determined manner on behalf of the whole group.
Thanks also the group members for believing and joining me on this momentous journey. Final success has been a long time coming but all concerned can be rightfully very proud of what we have achieved.
One thing is for sure, LEY 57/1968 may have been introduced 45 years ago but never before has it been the centre of so much public and legal attention”
María de Castro, Director of Costa Luz Lawyers comments:
“This case is an excellent example of how Judges in Spain are teaching Banks to treat people.
It is a magnificent result in favour of the consumer”
Group Lawyer, Jaime de Castro comments:“Spanish legislation protects off-plan house buyers with protective rules that do not exist in other European countries. LEY 57/1968 is an old Law that is still in force and makes the banks and developers jointly responsible for the amounts paid in advance by buyers when the housing is not delivered or is completed after the deadline agreed in the contract. The Spanish Courts are applying this Law strictly and categorically”
LANDMARK CASE LAW
Lawyers representing other buyers of off-plan property in Spain who were not issued with the legally required Bank Guarantees to protect their deposits can now use the Finca Parcs decision as Case Law to strengthen legal arguments in their own cases.
Keith says;
“The Finca Parcs case will no doubt help to strengthen the Lawsuits of other off-plan buyers who did not receive the legally required Bank Guarantees, many of whom still have their life savings at risk.
Together with our legal team at Costa Luz / De Castro we have worked tirelessly since 2008 to highlight this issue in the media and to the Spanish & British Governments. That belief and hard work is now backed up by two very strong sentences from the Hellín First Instance Court and the Albacete Appeal Court that are now firm and final.
To those off-plan buyers still affected by these issues I would say, never give up. Stay strong, keep believing and always focus on getting your money back. Much against the odds, we in the Finca Parcs Action Group have succeeded in winning against a big financial entity and I am sure others will now achieve similar success in the future. We have proved that it is possible”
FINCA PARCS ACTION GROUP – TIMELINE OF THE LEGAL ACTION – LAWSUIT 1
● 2006 – No legally required Bank Guarantees for Off-Plan deposits totalling 1.5 million
Euros
● February 2011 – Lawsuit 1 against CAM Bank & developer Cleyton GES SL filed to Court
● 12 January 2012 – First Instance Court Preliminary Hearing
● 21 & 22 May 2012 – Trial held in First Instance Court – Hellín
● 8 June 2012 – Judgment released in favour of Finca Parcs Action Group
● CAM Bank and Cleyton GES SL sentenced to return deposits amounting to almost 1.5
million Euros to the buyers with the addition of legal interest and costs
● July 2012 – CAM Bank appeals the First Instance Court Judgment
● July 2012 – Finca Parcs Action Group submits Opposition to the CAM Appeal
● July 2012 – Finca Parcs Action Group file Provisional Enforcement Order to the Court
● August 2012 – CAM Bank pays full amount of deposits plus legal interest and costs
to the Court
● Appeal to be heard by the Albacete Appeal Court
● 4 March 2013 – Appeal Magistrates to meet for deliberation & voting on the CAM Bank Appeal
● 11 April 2013 – Appeal court dismisses the CAM Bank Appeal and confirms First Instance
Sentence in full and imposes costs of Appeal on CAM Bank
● 14 May 2013 – CAM Bank do NOT appeal to the Supreme Court
● 14 May 2013 – FIRST INSTANCE & APPEAL COURT SENTENCE NOW FIRM AND FINAL
● Court releases Principal Amount of buyers off-plan deposits amounting to almost 1.5 million
Euros to the Finca Parcs Action Group Legal Team
● As per the Sentence, interest and legal costs will now be calculated and paid to the buyers in
due course -
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