What Constitutes Reckless and Imprudent Litigation
Some 12 months ago we were dumped by a client who was buying an off-plan unit in the development known as Bahía de las Rocas. It was no surprise that the newly acting “scavenging” lawyer, was operating from the expat-legal-gossip omnibus portal known as Eye On Spain (www.eyeonspain.com), wherefrom she had lured our client and probably told her how deep was our tie with the introducing agent, how horrible the developer was and how biased we were as a firm.
Our advice had been consistent throughout the transaction, advising the client that we could see no grounds for pulling out. She had tried to convince us in turn that, according to what the agents had told her, the property should have had a certain orientation, with views to a certain place. We spoke to the developer to verify this but could not find indications of any contractual infringement from where to successfully launch a claim.
Some months after we received the standard fax from the above lawyer asking for all the documents, and soon after the developer’s lawyer summoned us to Court to give witness statement. Out of curiosity we picked the phone up and called the developer, to find out that they had been sued not for the property having the wrong views but for, and here we go… delayed completion!!
But something was not right in all of this because, according to some simple calculations made with our desktop Casio calculator, the delay was of…cero days!!! Our curiosity went even further and, when reading the claimant’s petition, we noticed that it looked like a copy and paste piece of work because it made no sense whatsoever. How could any lawyer in his right mind consider NO delay as a fundamental breach of contract? What advice did this lawyer give to the client when offering her legal services? How could this lawyer, when cross examining us, ask us questions which answers directly exposed the entire satisfaction of the client with the property? But the funniest thing of all was that our client admitted in Court that she had been at all times informed and updated by us of the course of the works, without her manifesting any dissent.
The outcome was as predictable as clockwork: The judge ruled in favour of the developer, and sentenced the claimant to pay the legal bill. (An ‘anonymized’ copy of the ruling is available upon request.)
The legal conclusions of this botched attempt to trick the judges can be summarized as follows:
- Contractual extensions on property transactions are legal.
- Force majeure and Acts of God grounds for opposition are valid under Spanish law in case of non-performance.
- Lawyers should do a minimum pre-hearing preparation before entering the Court room if only to avoid, when cross-examining the previous lawyers, look very silly.
- Lawyers should tell their clients that they can, and sometimes should, lie in Court when being cross-examined, because the other party will most certainly lie too! (there is no such thing as perjury in Spain).
- Generally, lawyers should make their clients sign a disclaimer when persuading a client to start a Court case with no options whatsoever of winning a case.
From an economic point of view losing this case will mean a legal bill of between €20K, and nothing achieved. Too bad for reckless litigators!
Thanks for publishing about our work.
1.- The Court decission, one among the few lost by us in this type of cases, is a First Instance decission which is under appeal now.
2.- A member of your firm was a witness against your former own client.
An in addition, in this case, there is an alternative solution, through challenge of the penalty clause they have applied which will give to the client very similar results.
Good luck with your work Antonio!
Maria L. de Castro
Thanks for posting. It is funny you have identified yourself with the referred lawyer, when the post does not mention any lawyer in particular. However, and in strict accordance with the Law Association rules, we will not disclose the name of this lawyer.
Answering you comments:
1. Judging by fact, if this lawyer thinks a claim based on wrong grounds can be won, then she is far more gullible than the client who hired her. In a few months the outcome will be known, but in our opinion there is far more hope than confidence that it will be favourable to our ex-client.
2. We have attended to many court hearings as witnesses and always telling the truth, as the law requires. Are you implying we should not do as the law says?
Regards
Hello Antonio:
We have won a good number of similar cases both in First Inctance and in the Appeal Court. Even though, if it happened that the case were lost in Appeal, we have a clear back-up action( with enough Law and Case Law) which will very probably give to our client a very similar result.
Regarding attending Court as witness of an ex-client: if you ever want to avoid it, without breaching the Law, you just need to appeal to “proffessional secrecy”.
Again, good luck with you work!
This lady reminds me of the story of the naked king.
Thanks Derek. We have already mentioned how much we saw the situation of foreigners unprotected to the Andersen´s tale:
If you want to read about this, you can click on here :http://www.eyeonspain.com/blogs/costaluz/787/the-emperor%C2%B4s-new-cloth.aspx
Not exactly what I had in mind. Perhaps I got the gender wrong…
And thanks for the nice comments about my site Antonio, although I’m not sure everyone would agree with you.
Hello Justin, you obviously know the reasons why many lawyers are very unhappy with your site but as piece of constructive advice I will add that in my opinion it could have been much better than it is now!
It is so interesting to run a website that makes many lawyers unhappy and so many regular people so…. satisfied and happy!
Good for EOS Justin!
Antonio
I have no axe to grind with your company and even have issues with E.O.S when I was a poster where I was set up and banned several times for none other than speaking out at those that have no interest in Spain other than to play games
I am sorry to say Antonio similar games you are now playing.
There are hundreds if not thousands of corrupt solicitors that are a disgrace to their profession. so why not attack those.
Surely you have enough work to understand that we all have the choice to use who we want.
For your information I have not used Maria or even know her but your attack does sound like sour grapes and like those that play games on their forum I would advise Maria not to take the bait.
Jim Allen
Hello Jim,
Nice to hear from you.
It is wrong to consider that hundreds if not thousands of lawyers are corrupt because it is not based on fact but on speculation. This comment Jim is not appropriate on a specialized legal forum because it is a sweeping generalization that lacks proof and is bound to offend the legal profession as a whole.
Having said this and going to the second part of your post I will add that I am not against law practitioners pitching their clients in whichever way they deem correct so long as they a) don’t base their business model in a form of clientele poaching which capitalizes on desperation (as with hundreds of off-plan buyers eager to pull out) and b) provides truthful and independent legal advice, whether positive or negative in respect of the interests of the clients.
Thank you for your reply Antonio
If you are trying to defend the reputation of Spanish Solicitors or the justice system then its a game you will lose.
Your reason to attack another solicitor on a open forum is your concern.To me and its seems yet more ambulance chasing.
Please dont insult my limited intellegence.
As I said I have not axe to grind and feel thats lots of the work you do is very imformative.
Think hitting below the belt is something to rise above.
Jim Allen
Elviria. Marbella
Won yesterday in Malaga´s appeal Court. On the same basis Antonio considers rekless and imprudent.
Have a great weekend!
Case won in the Malaga appeal Court this week, on the same basis Antonio considers reckless and imprudent !
Seems like a good result for Maria’s client and really that is all that matters – because it is the purchasers interest that should always be number one in the eyes of any truly independent Lawyer.
This blog and website contains some good advice, but I cannot understand why Antonio Flores would, in a public forum, openly criticise another Lawyer and deliberately give clues as to their identity by mentioning the website/forum in which they regularly post. In my opinion I would call this a little ‘imprudent’ and possibly ‘reckless’. If there is any argument or discussion between professional Lawyers surely it should be dealt with in private Lawyer to Lawyer.
The situation with Off-Plan deposits is so serious for many hundreds of buyers who are at risk of losing their hard earned money. I just wish all those in the legal profession would pull together for the sake of all the purchasers and fight against those who really are the guilty ones in this whole mess:
The corrupt developers
Negligent Banks & Savings Banks
Estate Agents who were very economical with the truth
and yes, it may offend some, but it is true – Lawyers who were recommended to the purchaser by the developer, agent or bank and therefore had a conflict of interest and were not acting in the best interests of the purchaser at all times.
We, the innocent purchasers, are the victims here and we need all those honest and independent Spanish Lawyers to unite behind us and fight for nothing more than what we were legally entitled to from the developer or funding bank according to LEY 57/68.
Kind regards
Keith
BANK GUARANTEES IN SPAIN
Hello Keith,
Thanks for your comments.
It seems to me that this is not the place to write about an initiative that presumably intends to offer the services of Mrs. Maria Castro, among other recommendations.
You obviously have information that we dont have, i.e., ground-breaking case-law that nobody knows about but everyone is eager to know about. If you were kind enough to share this case-law with other people, irrespective of which lawyer is being used, which is what we do at Lawbird, perhaps we could find you initiative very useful.
Otherwise, I hope you understand if I dismiss your initiative as a commercial venture, in collaboration with your recommended lawyer.
Antonio
BANK GUARANTEES in SPAIN and MANY OTHER LEGAL MATTERS
Hello Antonio
Thank you for your reply.
I am sorry that have dismissed our Bank Guarantees In Spain Petition as a commercial venture.
I do not want to get into an argument with anyone.
But I feel I must state some facts because your presumptions are wrong.
I am a purchaser on the Finca Parcs development. I paid my deposit in November 2006 and was not provided with a Bank Guarantee. For almost 4 years I have been chasing the developer and the funding Bank who accepted my off-plan deposit. I knew there were other purchasers at Finca Parcs without Bank Guarantees, so on a voluntary basis with no commercial intent whatsoever I formed the Finca Parcs Action Group as I believed that group action would be stronger than just me taking an individual action.
I have dedicated countless hours, days and months to our group action and have devoted all my time free of charge. I am determined to fight for my money and the money of all the other group members. There are now 63 Finca Parcs purchasers in our group and each member of the group has joined of their own free will and are fully aware of the legal costs and risks involved in our group action.
2 years ago I began seeking advice from a number of Lawyers regarding my Finca Parcs situation and then once I formed the action group I was seeking information on behalf of the group.
I first contacted Maria de Castro in September 2008. She never chased me, in fact for well over a year it was me chasing her. At that point I was gathering information free of charge from a number of sources.
Finally in October 2009 after discussions with several of the group members we decided to appoint Costa Luz Lawyers as our group legal representatives. We were never pushed or forced into our decision. I have copies of every communication to confirm this.
As group leader I was offered free legal fees for myself from other Lawyers (not Costa Luz Lawyers) for giving them the group action – but I turned this down. I want to be transparent and pay my way just like all the other members of our group.
The Bank Guarantees In Spain Website and Petition has no commercial intent whatsoever. I designed the website and the petition form myself with help from Ruth Genda, a purchaser from another development, who organised the first Bank Guarantees petition 18 months ago. I was also assisted by a purchaser called Anne. Maria de Castro assisted me totally free of charge with translations and some legal wording. The petition submissions ONLY come to me and nobody else will have any access to that information. It was made totally clear in writing between myself and Costa Luz Lawyers prior to the launch of the Petition that they will have no access to any data submitted by the petitioners. This is my initiative and it is NOT a commercial venture. In fact, it has cost and is costing me time and money!
The work on the petition carried out by myself, Ruth and Anne is on a voluntary basis and totally without charge. It is free for any person to join the petition and the petitioners will NEVER be contacted by anyone other than me – unless Mr Zapatero decided to contact any of them after we submit the petition, but I very much doubt it!! The only reason I may email them at sometime is to provide an update on the petition itself.
The data collected will only be submitted to those to whom the petition is clearly addressed.
All this is made totally clear on our privacy pages.
Myself, Ruth and Anne are all affected by Bank Guarantee abuse and we are determined that justice should be done. Not even Ruth and Anne have access to the data submitted by the petitioners.
We have no commercial intent and in no way is this a commercial venture. In fact the only intent we have is to stand up for our legal rights and do everything in our limited power to change the situation for the better.
I am confused as to why you are so much against me and the Petition. We launched the petition at the beginning of August and for the last 3 weeks have had a lot of support from various Lawyers, websites and other areas of the media.
You are the first to present us with a negative response. I am sorry if you are offended in any way by our initiative. I can assure you that I am a genuine purchaser whos sole intention is to get my money back and to see justice done for all the other purchasers who are in a similar position to me.
If you have any constructive critisism to offer then I am more than willing to listen and learn. In fact, after receiving your email I telephoned your office this morning to speak with you but your secretary said you were unavailable.
Kind regards
Keith
Hello Keith,
I have no axe to grind with you and therefore, if you have felt that my words were excessively harsh I do apologize. I do wish to be as polite as I possibly can but I am unnerved when lawyers throw out the bait in a sea full of desperate property purchasers hoping that a few will bite.
By using this metaphor I am refering to the mysterious case-law that is said to exist but nobody has found. This case-law, if it does exist, should be made public to everyone so that more people had the opportunity to get their monies back.
Other than that, I do welcome your initiative but please be concrete and realistic, I seriously doubt Mr. Zapatero will have any spare time to dedicate to your cause.
Can you please comment on the case-law much talked about in the legal-gossip forum EyeonSpain?
Hi Keith,
Any luck with the much vaunted case-law your recommended lawyer keeps referring to?
Look forward to hearing from you.
Dear Antonio
I am one of the desperate property purchasers you refer to, but I have not been enticed by promises of mysterious case law.
As you know the Finca Parcs Action Group is legally represented by Costa Luz Lawyers.
However, the Bank Guarantees in Spain website and Petition does not endorse or recommend the services of any particular legal firm. We make that clear on our website and we also strongly advise any person viewing the website or joining the petition to take INDEPENDENT legal advice regarding their own personal situation.
The word INDEPENDENT is very important here, because it is clear from information received so far that the problems regarding Bank Guarantees has been exacerbated by the fact that many purchasers engaged the services of Lawyers who were recommended by the Estate Agent and/or Developer and therefore had a conflict of interest.
As you know Case Law exists relating to various aspects of the Bank Guarantee / LEY 57/68 situation, however to avoid any possible confusion it may be better if this technical issue is discussed Lawyer to Lawyer. Therefore, may I suggest that you contact María de Castro at Costa Luz Lawyers regarding this matter.
I am pleased you welcome our Bank Guarantees Petition and I am realistic. My comment about Mr Zapatero was a little light hearted as I was just trying to emphasise the point that the personal data submitted by petitioners will only be available to myself and those to whom the petition is addressed, which includes Mr Zapatero.
Antonio – we are innocent victims of this situation and must do everything possible to ensure that our hard earned money is refunded. That is our legal right – a legal right granted by LEY 57/68 which according to Article 7 has a ‘Caracter de Irrenunciables’ which translates to ‘Inalienable Character’. The rights granted to a purchaser by LEY 57/68 are so strong that they cannot be waived even at the request of the purchaser.
Therefore I find it even more amazing that for so many years some developers, banks, estate agents and lawyers appear to have totally disregarded or ignored the legal requirements of LEY 57/68.
Kind regards
Keith
Hi Keith, please, be concrete in your answers. This is no EyeonSpain forum where we praise the supra-human legal abilities of some unrefined solicitor experienced in client-poaching. This is a serious site so please, drop your sales pitch and bring on the case-law!