Property Fraud

Dear Sir/Madam,

If you have invested your saving in an off-plan development and you have beed defrauded, CPC Worldwide can help you to get your money back.

Please do not hesitate to contact us on  0191 386 2487.

We are here to help you!!

The CPC Worldwide Team

Advertisements

Bank repossession in Spain

PRESS RELEASE No 30/13

Luxembourg, 14 March 2013

Judgment in Case C‑415/11

Mohamed Aziz v Catalunyacaixa


Spanish legislation infringes EU law to the extent that it precludes the court which has jurisdiction to declare unfair a term of a loan agreement relating to immovable property from staying the mortgage enforcement proceedings initiated separately.

Spanish legislation lists the grounds, which are very limited, upon which a debtor may object to mortgage enforcement proceedings. Those grounds do not include the existence of an unfair term in the mortgage loan agreement. Thus, that fact can be relied upon only in separate declaratory proceedings which do not have the effect of staying the mortgage enforcement proceedings. In addition, in the Spanish enforcement proceedings, the final vesting of immovable property in a third party – such as a bank – is, in principle, irreversible. Consequently, if the court hearing the declaratory proceedings declares a term of a loan agreement unfair and accordingly annuls the mortgage enforcement proceedings after enforcement has taken place, that judgment can enable that consumer to obtain only subsequent protection of a purely compensatory nature, the person evicted being unable to recover ownership of his property.

In July 2007, Mr Aziz, a Moroccan national residing in Spain, concluded with the bank Catalunyacaixa a loan agreement to the value of €138,000 secured by a mortgage over his family home.  He stopped paying his instalments with effect from June 2008. After having called upon him to pay without success, the bank initiated enforcement proceedings against him. When Mr Aziz failed to appear, execution was ordered.  An auction of his immovable property was arranged, but no bid was made, with the result that, in accordance with the Spanish legislation, ownership of the property was vested in the bank at 50% of its value. On 20 January 2011, Mr Aziz was evicted from his home. Shortly beforehand, he applied for a declaration seeking annulment of a term of the mortgage loan agreement, on the ground that it was unfair and, accordingly, of the mortgage enforcement proceedings.

In that context, the Juzgado de lo Mercantil No 3 de Barcelona (Commercial Court No 3, Barcelona) before which the case was brought, decided to ask the Court of Justice, first, about the compatibility of Spanish law with the Unfair Terms in Consumer Contracts Directive[1], since Spanish law makes it extremely difficult for the court to ensure effective protection of the consumer and, second, about the essential characteristics of the concept of ‘unfair term’ within the meaning of that directive.

In today’s judgment, the Court answers, first, that the Unfair Terms in Consumer Contracts Directive precludes national legislation, such as the Spanish legislation at issue, which does not allow the court hearing the declaratory proceedings – that is, the proceedings seeking a declaration that a term is unfair – to adopt interim measures, in particular, the staying of the enforcement proceedings, where they are necessary to guarantee the full effectiveness of its final decision.

As a preliminary point, the court recalls that, in the absence of harmonisation of the national mechanisms for enforcement, the grounds of opposition allowed in mortgage enforcement proceedings and the powers conferred on the court hearing the declaratory proceedings are a matter for the national legal order of each Member State. However, that legislation may not be any less favourable than that governing similar situations subject to domestic law (principle of equivalence) and it must not make it in practice impossible or excessively difficult to exercise the rights conferred on consumers by EU law (principle of effectiveness).

With regard to the latter principle, the Court considers that the Spanish procedural system impairs the effectiveness of the protection which the directive seeks to achieve. That is so in all cases where enforcement is carried out in respect of the property before the court hearing the declaratory proceedings declares the contractual term on which the mortgage is based unfair and, accordingly, annuls the enforcement proceedings. Since the court hearing the declaratory proceedings is precluded from staying the enforcement proceedings, that declaration of invalidity allows the consumer to obtain only subsequent protection of a purely compensatory nature. That compensation is thus incomplete and insufficient, and would not constitute either an adequate or effective means of preventing the continued use of those terms. That applies all the more strongly where, as in this case, the mortgaged property is the family home of the consumer whose rights have been infringed, since that means of consumer protection is limited to payment of damages and interest and does not make it possible to prevent the definitive and irreversible loss of the home. It would thus be sufficient for sellers or suppliers to initiate mortgage enforcement proceedings in order to deprive consumers of the protection intended by the directive. The Court therefore holds that the Spanish legislation does not comply with the principle of effectiveness, in so far as it makes impossible or excessively difficult, in mortgage enforcement proceedings initiated by sellers or suppliers against consumer defendants, to apply the protection which the directive confers on those consumers.

Second, when examining the concept of the unfair term[2], the Court states that the ‘significant imbalance’ arising from such a term must be assessed taking into account the rules which would apply under national law in the absence of an agreement by the parties in that regard. To that end, an assessment of the legal situation of the consumer having regard to the means at his disposal, under national law, to prevent continued use of unfair terms, should also be carried out. In order to determine whether the imbalance arises ‘contrary to the requirement of good faith’, it must be assessed whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.

In the light of those criteria, it is for the national court to assess whether the default interest clause inserted in the contract signed by Mr Aziz is unfair. That clause provides for annual default interest of 18.75%, automatically applicable to sums not paid when due, without the need for any notice. The national court must in particular compare that rate with the statutory interest rate[3], and determine whether it is appropriate for securing the attainment of the objectives pursued in Spain and does not go beyond what is necessary to achieve them.

Equally, the acceleration clause of the contract concerned allows the bank to call in the totality of the loan after a single failure to meet a due payment of principal or interest. The national court must in particular assess whether that right is conditional upon the non-compliance by the consumer with an essential obligation of the contract and whether such non-compliance is sufficiently serious in the light of the term and amount of the loan.

Finally, the clause on unilateral quantification of the unpaid debt stipulates that the bank may immediately quantify that amount in order to initiate mortgage enforcement proceedings. The national court must assess whether and, if appropriate, to what extent, that term makes it more difficult for the consumer, given the procedural means at his disposal, to take legal action and exercise rights of the defence.


NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.


 

Unofficial document for media use, not binding on the Court of Justice.

The full text of the judgment is published on the CURIA website on the day of delivery.

Press contact: Christopher Fretwell  (+352) 4303 3355

Pictures of the delivery of the judgment are available from “Europe by Satellite”  (+32) 2 2964106


[1] Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

[2] According to the directive, a contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.

[3] In Spain, the statutory interest rate in 2007 was 5%.

…………………………………………………………………………………………………………….

If you have a problem of repossession in Spain, CPC Worldwide can help you following the European Court of Justice sentence which declared that the Spanish repossession law is against the EU law on cunsomer protection

Bank repossession in Spain


    
Court of Justice of the European Union
PRESS RELEASE No 30/13
Luxembourg, 14 March 2013
Judgment in Case C‑415/11
Mohamed Aziz v Catalunyacaixa


Spanish legislation infringes EU law to the extent that it precludes the court which has jurisdiction to declare unfair a term of a loan agreement relating to immovable property from staying the mortgage enforcement proceedings initiated separately.
Spanish legislation lists the grounds, which are very limited, upon which a debtor may object to mortgage enforcement proceedings. Those grounds do not include the existence of an unfair term in the mortgage loan agreement. Thus, that fact can be relied upon only in separate declaratory proceedings which do not have the effect of staying the mortgage enforcement proceedings. In addition, in the Spanish enforcement proceedings, the final vesting of immovable property in a third party – such as a bank – is, in principle, irreversible. Consequently, if the court hearing the declaratory proceedings declares a term of a loan agreement unfair and accordingly annuls the mortgage enforcement proceedings after enforcement has taken place, that judgment can enable that consumer to obtain only subsequent protection of a purely compensatory nature, the person evicted being unable to recover ownership of his property.
In July 2007, Mr Aziz, a Moroccan national residing in Spain, concluded with the bank Catalunyacaixa a loan agreement to the value of €138,000 secured by a mortgage over his family home.  He stopped paying his instalments with effect from June 2008. After having called upon him to pay without success, the bank initiated enforcement proceedings against him. When Mr Aziz failed to appear, execution was ordered.  An auction of his immovable property was arranged, but no bid was made, with the result that, in accordance with the Spanish legislation, ownership of the property was vested in the bank at 50% of its value. On 20 January 2011, Mr Aziz was evicted from his home. Shortly beforehand, he applied for a declaration seeking annulment of a term of the mortgage loan agreement, on the ground that it was unfair and, accordingly, of the mortgage enforcement proceedings.
In that context, the Juzgado de lo Mercantil No 3 de Barcelona (Commercial Court No 3, Barcelona) before which the case was brought, decided to ask the Court of Justice, first, about the compatibility of Spanish law with the Unfair Terms in Consumer Contracts Directive[1], since Spanish law makes it extremely difficult for the court to ensure effective protection of the consumer and, second, about the essential characteristics of the concept of ‘unfair term’ within the meaning of that directive.
In today’s judgment, the Court answers, first, that the Unfair Terms in Consumer Contracts Directive precludes national legislation, such as the Spanish legislation at issue, which does not allow the court hearing the declaratory proceedings – that is, the proceedings seeking a declaration that a term is unfair – to adopt interim measures, in particular, the staying of the enforcement proceedings, where they are necessary to guarantee the full effectiveness of its final decision.
As a preliminary point, the court recalls that, in the absence of harmonisation of the national mechanisms for enforcement, the grounds of opposition allowed in mortgage enforcement proceedings and the powers conferred on the court hearing the declaratory proceedings are a matter for the national legal order of each Member State. However, that legislation may not be any less favourable than that governing similar situations subject to domestic law (principle of equivalence) and it must not make it in practice impossible or excessively difficult to exercise the rights conferred on consumers by EU law (principle of effectiveness).
With regard to the latter principle, the Court considers that the Spanish procedural system impairs the effectiveness of the protection which the directive seeks to achieve. That is so in all cases where enforcement is carried out in respect of the property before the court hearing the declaratory proceedings declares the contractual term on which the mortgage is based unfair and, accordingly, annuls the enforcement proceedings. Since the court hearing the declaratory proceedings is precluded from staying the enforcement proceedings, that declaration of invalidity allows the consumer to obtain only subsequent protection of a purely compensatory nature. That compensation is thus incomplete and insufficient, and would not constitute either an adequate or effective means of preventing the continued use of those terms. That applies all the more strongly where, as in this case, the mortgaged property is the family home of the consumer whose rights have been infringed, since that means of consumer protection is limited to payment of damages and interest and does not make it possible to prevent the definitive and irreversible loss of the home. It would thus be sufficient for sellers or suppliers to initiate mortgage enforcement proceedings in order to deprive consumers of the protection intended by the directive. The Court therefore holds that the Spanish legislation does not comply with the principle of effectiveness, in so far as it makes impossible or excessively difficult, in mortgage enforcement proceedings initiated by sellers or suppliers against consumer defendants, to apply the protection which the directive confers on those consumers.
Second, when examining the concept of the unfair term[2], the Court states that the ‘significant imbalance’ arising from such a term must be assessed taking into account the rules which would apply under national law in the absence of an agreement by the parties in that regard. To that end, an assessment of the legal situation of the consumer having regard to the means at his disposal, under national law, to prevent continued use of unfair terms, should also be carried out. In order to determine whether the imbalance arises ‘contrary to the requirement of good faith’, it must be assessed whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.
In the light of those criteria, it is for the national court to assess whether the default interest clause inserted in the contract signed by Mr Aziz is unfair. That clause provides for annual default interest of 18.75%, automatically applicable to sums not paid when due, without the need for any notice. The national court must in particular compare that rate with the statutory interest rate[3], and determine whether it is appropriate for securing the attainment of the objectives pursued in Spain and does not go beyond what is necessary to achieve them.
Equally, the acceleration clause of the contract concerned allows the bank to call in the totality of the loan after a single failure to meet a due payment of principal or interest. The national court must in particular assess whether that right is conditional upon the non-compliance by the consumer with an essential obligation of the contract and whether such non-compliance is sufficiently serious in the light of the term and amount of the loan.
Finally, the clause on unilateral quantification of the unpaid debt stipulates that the bank may immediately quantify that amount in order to initiate mortgage enforcement proceedings. The national court must assess whether and, if appropriate, to what extent, that term makes it more difficult for the consumer, given the procedural means at his disposal, to take legal action and exercise rights of the defence.  



NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.


Unofficial document for media use, not binding on the Court of Justice.
The full text of the judgment is published on the CURIA website on the day of delivery.
Press contact: Christopher Fretwell  (+352) 4303 3355
Pictures of the delivery of the judgment are available from “Europe by Satellite”  (+32) 2 2964106


[1]Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).
[2]According to the directive, a contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
[3]In Spain, the statutory interest rate in 2007 was 5%.

…………………………………………………………………………………………………………….

If you have a problem of repossession in Spain, CPC Worldwide can help you following the European Court of Justice sentence which declared that the Spanish repossession law is against the EU law on cunsomer protection

More residents join the fight to save their homes

14 JUNE 2012 WRITTEN BY  LOUISE CLARKE

More residents join the fight to save their homes

Lesley and Nigel have joined the fight for their homes Lesley and Nigel have joined the fight for their homes
MANY REGULAR readers of RTN will be aware of the recent articles about the repossession of Tecnologia Urbanistica S.L. (TU) houses in Orihuela Costa.
As the auction date for their houses draws ever closer for the homeowners of Bosque del Lomas III, RTN has been keeping updated with all the developments on this story and recently visited London to discuss the case with several leading lawyers and barristers who specialise in these types of cases.
But this problem is not just isolated to the three or four urbanisations in Orihuela Costa. It is believed that hundreds of people who bought and paid for houses in full with this developer are affected and they just don’t know it; or they are burying their heads in the sand and hoping that the problem will go away all by itself. It won’t!

FOBBED OFF
Nigel and Debbie Potter and Lesley and Richard Lansdown are just two of a dozen couples who bought TU houses in Lo Crispin, Algorfa. The problems they have are almost identical to Bosque del Lomas; the only difference is the banks that were used for the mortgages.
Both couples bought off plan through Atlas International in 2004 and used Aroca Seiquer Solicitors and both paid in full for their properties only to discover eight years later that a mortgage had been taken out on the houses by TU and they will now, if they don’t fight, lose them.
Their community, Vista Rosa, has 99 houses; many of which remain unsold and are now decaying. Both told RTN how they were fobbed off by the solicitors every time they went to ask for their title deeds when they came over on holiday. “It drove my wife mad,” Nigel commented, “We’d spend all our holidays traipsing to their office and back and always got pushed from pillar to post.”

CASH
Thanks to RTN’s article about the plight of the Bosque del Lomas residents, the two couples realised that they were in the same situation and have since joined the Bosque residents to fight for their homes. “Our children’s inheritance is at stake,” commented Lesley, “We have been totally fleeced and made to feel like it was our fault that we paid up front in full.”
Both couples paid their cash at the builders’ office in Torrevieja, whilst being accompanied by an Atlas representative. “There were loads of us,” said Nigel, “It was like a cattle market and we watched our hard earned cash go through a counting machine in front of us. I wish to God we had not bought the house, but we did and we will continue to fight for it.”

*** STOP PRESS ***
At 3pm yesterday afternoon (Thursday) CAM Bank announced that the auction of the houses on Bosque del Lomas III has been postponed indefinitely.
More on this in next week’s RTN.

Auction stopped in the nick of time

21 June 2012 Written by Louise Clarke ( Roundtown News ). 

Auction stopped in the nick of time

Bosque dDel Lomas IIIBosque dDel Lomas III
IT STARTED in March with an article in RTN and after weeks of legal wrangling, the residents of Bosque del Lomas III in Orihuela Costa found out last week that the auction which was due to take place yesterday (Thursday) has been cancelled.
RTN’s article featured Iwan and Gill Williams who had bought their dream home in the sun and paid for it in full only to have it re-mortgaged by rogue building firm Tecnologia Urbanistica S.L. Their house, along with 15 others on the community, all paid for in full, were due to be auctioned by CAM bank, whom the builder had remortgaged the properties with.

VICTIMS
As soon as RTN’s article was published, more homeowners came forward to say that they were in the same situation. CPC Holdings, who had read RTN’s article contacted them all and instructed their Spanish solicitors, Agüera y Arrebola, to fight for the group, which by that stage amounted to more than 20 Tecnologia ‘victims’.
The pattern of each purchase was almost identical; all had used Atlas International as agents and Aroca Seiquer as solicitors on the recommendation of Atlas.
It was only when the deeds of the house failed to materialise that the homeowners realised that there may be a problem with their ‘dream house in the sun’.

VICTORY
The cancellation of the auction is a very positive step and one that has come as a direct result of all the hard work by the legal team representing the homeowners. Nikki Crozier from CPC Holdings told RTN: “I cannot express in words how delighted we are at the recent victory in the courts for our clients. It is a testament to their combined fighting spirit that they trusted us to win this case for them. No-one can imagine the horror of finding out that the property you purchased was in the process of been sold and you were to be thrown on the streets.” She added: “In less than three months our Spanish Barristers, Tomas Agüera and Jose Manuel Arrebola, have succeeded in suspending the auction indefinitely.”

FIGHT
But that is only one bank which has been stopped from repossessing and selling on these people’s houses. There are three other banks which have vested interests in Tecnologia houses all over the southern Costa Blanca. So, the fight is by no means over and soon criminal charges will be brought against the rogue builder in an attempt to not get the money back, because that is long gone, but to get some justice for the years of stress and upset that his selfish, greedy, and frankly fraudulent actions have caused these poor people. Nikki concluded: “Our clients can now live in peace whilst we file claims with the liquidator, criminal claims, obtain escrituras and regularise the development itself.”


 

In the nick of time. Well done to our legal team.

Couple fight eviction from their home

10 May 2012 Written by Louise Clarke

Couple fight eviction from their home

Stewart and Lynda ForresterStewart and Lynda Forrester
A COUPLE from El Galan is having to take turns in going out after solicitors told them that bailiffs could come any day to evict them. Stewart and Lynda Forrester bought a Tecnologia Urbanistica house through Atlas International in 2003. In 2004 the house, which was part of a row of six, suffered severe damage due to the subsidence of an end terrace that had not been underpinned properly. Structural engineers advised the couple to leave the house immediately after six inch cracks started to appear throughout the house. In the meantime, Tecnologia’s owner, Emilio Martin de las Mulas Naranjo, offered Stewart and Lynda another house down the road in Bosque del Lomas 16, where they are still living for most of the year. The couple paid in full – more than 149,000€ – for the property to Atlas International.

FIGHTING
The couple never received any confirmation that the money had been paid to the builder and like with so many other cases that RTN has heard about, the owner of Tecnologia then took a mortgage out on the property. The couple has been fighting for their deeds since 2005 and have been constantly pushed from pillar to post. Their solicitors at the time, Aroca Seiquer, even phoned them at their home in South Wales to say that the deeds were in the office and then when the couple flew over to retrieve them, the solicitors said that the deeds weren’t there after all! The couple has known for some time that there was a debt on their property and even got a court judgement which states that all debts on the property must be cleared.

NO LIFE
Unbeknown to the couple, the bank has since repossessed the property and the auction took place six months ago. This was only discovered after the pair swapped solicitors to the same company that is helping other Tecnologia homeowners. As a result, the bailiffs could come any day and change the locks and the couple will be evicted from their home. Stewart told RTN: “If we need food from the supermarket, we take it in turns to go. We can’t afford to both leave the house. If one of us has to go out, the other stays at home, but what kind of life is that? We are supposed to be enjoying our retirement together.”
Jose Ramon Vidal from the Atlas Group said: “Atlas forwarded payments received to the builder as per the contract they had with Tecnología, and is in receipt of a certificate stating that the funds were received by the builder and keys were passed to the clients by Tecnología.” RTN asked for a copy of this certificate but was told that it would be sent direct to the couple. Keep reading RTN for more on this story as it develops.