The High Court of Malaga is today proceeding to judge the real estate promoter owner of AIFOS, Jesús Ruiz Casado, and his wife, both accused by the Malaga district prosecution for allegedly swindling over 626.000 EUR to 30 people with the sale of 16 apartments in different parts of the province that where to be built. According to the Prosecutor’s provisional conclusions, accessed by Europe Press, the defendants were the directors of the company AIFOS ARQUITECTURA Y PROMOCIONES INMOBILIARIAS. Such company started on year 2001 the promotion of several houses which were to be built at various locations.
The public prosecution contends that there was “an advertisement or an offer containing false statements about some uncertain features on the houses to be built” and points out that from August 2001 the company began to sign contracts with various people who wanted to acquire such supposedly “under construction” houses. According to these contracts, the public prosecutor indicates, buyers paid on the agreed dates the amounts stipulated “believing the construction of dwellings had began and that these where to be delivered within 20 months, while the defendant did not carry out the projected work”.
The Prosecutor’s Office notes that the works had not even been licensed by Town Hall authorities while the purchasers were making different disbursements that defendants took in profit, when to neither date there have been a construction nor any amount has been returned to any of the mistreated parties.
The Prosecutor alleges this is a crime against consumers’ rights jointly with another one, related to it, of continued fraud and requests a punishment of seven years in prison for each, plus a disqualification from leadership or management of companies for the same time and fines of 8,100 EUR for the first offence and 18,000 EUR for the second one. In addition, the Prosecutor urges compensation of the amount handed over to each affected person.
(Google revised translation. Source: malagahoy.es)
No, you shall not. Under the 2005 revised law, the couple, by joint consent, can proceed immediately to a full divorce with no period of legal separation nor any other reason or other party’s fault being required.
Yes, you can. Spanish courts are eligible since residing in Spain is sufficient cause for the Spanish courts to have legal jurisdiction in this matter.
Yes, you can, but only if you have the approval of the Owners General Meeting.
In a verdict released several days ago, the Chamber of civil matters of the High Court partially admits the appeal filed by the Spanish Organization of consumers and users (OCU) against the decision of the provincial court of Madrid who had declared as valid several reported clauses in the year 2005.
Amongst the clauses now voided by the Supreme Court are the ones that exclusively penalised the owners of credit or debit cards for the damage carried by its fraudulent misuse as long as those circumstances were not communicated to the bank. The verdict establishes that “the existence of a loss or theft must be communicated without undue delay since the disappearance is known”.
However, the verdict declares that “clauses totally exempting the Bank of liability indiscriminately and without nuance or modulation are abusive” and “disproportionate”, since “there are very frequent cases where the bank’s diligence warned about undue uses and even warned users, who were unaware”.
The Court situates on the same line those clauses that exclude “whatever the case” the responsibility of the bank when the PIN or card password is obtained by coercion or force majeure.
Magistrates insist that “is noteworthy that, in certain circumstances, banks can warn undue uses using the diligence which from them is enforceable in harmony with their experience and technical resources”.
Pretext to rescind the contract
In thye paragraph about mortgages, the magistrates declared abusive those clauses prohibiting the leasing of mortgaged estates, even though they admit such deeds can decrease the value of the property. Therefore they argue that these clauses should establish how much rent must the owner demand in order to correct the “decreasing value” the lease may cause the bank in the case of non-payment of the loan and of need to repossess the property.
The Supreme Court also rejects that banks include contract clauses regarding the resignation of customers receiving a mortgage or other loans about being informed of these being transferred to another bank or entity. “Its unfairness is unquestionable” because “it implies a waiver or limitation of the rights of the consumer”, the judgment argues.
Another voided condition in the loans paragraph it the one allowing Banco Santander to compensate receivables from clients with those positive balances held in other products, even if they were not their only holders. The Supreme Court understands that this type of clause is valid only if they are “transparent, clear, concrete and simple”, conditions that the wording of the clause of Banco Santander was not meeting.
The Court also termed as “illicit” the power of a bank to resolve in advance term-granted loans when an embargo of the borrower’s assets occurs or his solvency is diminished by any cause.
In this regard, judges believe that this condition is looking for “any negative impact on the borrower’s heritage, actual or potential, can serve as an excuse” to have the contract early terminated, thus ”giving the financial institution a discretionary and disproportionate power (…)”.
Yes, you can. But only in case the hidden defects existed by the time the sale took place and they are substantial defects (not unimportant, or small ones). The term you have to claim your money back is 6 months after the sale’s completion date. (2009-07-02)
Yes, on certain circumstances, such as the devious avoidance of funds after the sale, the operation you refer to could be a criminal offence according to the Spanish Penal Code when it could be demonstrated that you, as the debtor, knew, even in an extrajudicial form, about the possibility that the bank went to the legal jurisdiction to demand your debt.
My husband and I live in U.K., but his children were taken to live in Spain by their mother 5 years ago without his permission. They were not married, so he had less rights to do anything about that. The children are aged 10 and 13. They have said a few times about their mother having a problem with alcohol and even driving drunk. Can we get an order to have the children here with their father? They can have a much better life with us. Thank you.
Regarding your questions, I send you my comments based of my best knowledge as follows.
First, I will assume the following applies:
Assuming these facts are applicable, there will be nothing that prevents the father having the children with him for the time he considers necessary, since there is yet no official rule about parents custody. At the same time and in order to achieve the referenced forceful convention/agreement either the father or the mother will need to submit as soon as possible a claim to the Spanish Courts (in case the children were born in Spain, or even if they were not, in case they have been registered and residing here until this moment, or also if the non-marital couple had their last mutual domicile here).
For this claim to be successfully won, I understand that the unnatural or odd behaviour of the mother will need to be proved by means of witnesses (I would also recommend a private investigator’s report) and you also must be prepared to face that the Judge will like to hear the children’s opinions (separately –i.e. not at a public court’s hearing- and with the help of a judicial psychologist).
In case your husband decides to act judicially, and assuming the Spanish jurisdiction is applicable, we will be able to assist professionally, and for this we will need that the father grants a power of attorney at the Notary, giving us powers to represent him at the Court and also –in my opinion- we will need to have an interview. Subject to your confirmation, we can prepare the text and guidelines for such Power of attorney.
Judge Baltasar Garzón will have to confront the penal process of prevarication in the Spanish Supreme Court. The Tribunal’s second court-room has decided to begin prosecution based on a complaint in which the famous “star judge” is accused of an obvious crime of prevarication “premeditated, conscious and believing to be not blameworthy for them”, because of his actions as a judge in the process he initiated about the disappearance of people during the Spanish civil war and General Franco’s political regime. The surprising decision of the Penal Room of the Supreme Court had been taken by its president, Juan Saavedra and the magistrates Adolph Prego, Joaquin Giménez, Francisco Monterde and Juan Ramon Berdugo. The resolution was unanimous. Subject of multiple accusations, Garzón so far has been cleared of them all and regarding this latest, filed the past 26th January by the so called Clean Hands Union, there was initially a favourable report in Garzon’s favour from the office of the Supreme Court public prosecutor that, as it has been habitual, exonerated Garzon.
A court decision in Spain has opened the way for thousands of UK citizens to reclaim some of the tax they paid when they sold their homes here. The High Court in the province of Valencia has ruled in favour of a British couple, Mr and Mrs Roy. The verdict forces the Spanish tax authorities to refund them the difference, they were charged a capital gains tax levied at 35% instead of 15%.
The court considered the law which was in force for many years was “discriminatory”. This verdict could be a first step in favour of people who sold their homes in Spain but who were officially non-resident, they were taxed at 35% of their profits rather than at the 15% rate applied to Spanish nationals.