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The Spanish Lawyer Online

Antonio Flores’ Blog

Thoughts about laws and regulations which affect foreigners in Spain

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Posts Tagged ‘spanish boiler rooms’

Illegal Investments: Fiduciary Duty Claim Sticks Against Santander Bank

August 10th, 2016

shutterstock_161194061 (1)

For the first time that we are aware of, a Spanish Court has found a complaint to sufficiently allege a breach of fiduciary duty against a bank, Santander, who had opened an account to an unauthorized financial investment company and allowed it to take clients’ deposits for unregulated investments. Needless to say, clients’ money was almost all lost.

According to the Madrid Appeal Court, (…) the unauthorized firm acted illicitly by breaching is contractual terms with its clients and more importantly, the Court deemed this firm was (…) offering the public an investment service in blatant violation of mandatory regulatory laws.

The directors of the unauthorized have also been found to have acted illicitly –for the above reasons- and as a result, deemed personally responsible for the losses of clients’ savings.

And Santander, more crucially, was found to have (…) acted reprehensibly by allowing the unauthorized firm to operate freely by opening bank accounts, authorizing transfers and permitting other typical banking transactions reserved to authorized firms.

The Court invoked article 7 of the annex to the Financial Markets Code of Conduct that prohibits dealings with illegal companies:

Entities will refuse any operation from non-authorized intermediaries, as well as those in which they have knowledge that the relevant legislation applicable to the former may be infringed.

Such “knowledge” was decisive in this case for the Court to rule that Santander was in breach of the above obligation and order the bank to indemnify the client for the losses sustained by the boiler room.

This events leading to this ruling happened prior to the approval of the Anti-Money Laundering Act where banks –and other obliged parties-, are obliged to obtain information as to the

purpose and expected nature of the business connection of the client and in particular, the nature of the professional and/or business activity, carrying out those measures to reasonably prove the information” (art. 5),

as well as a

continuous follow up of such business connection, inclusive of scrutiny of any dealings conducted throughout the relationship” (art. 6).

On this basis, we believe that the above “knowledge” is no longer essential and therefore banks that facilitate any person, company or otherwise to illegally operate in the financial markets could be deemed responsible for the losses sustained by their clients/victims.

For the avoidance of doubt, an unauthorized entity (or “fly-by-night operation” as described by Spanish regulators) is any such that offers investment or insurance services and is not approved by the CNMV (Financial Conduct Authority) or the DGS (Insurance Regulator).

Companies, Corporate Law, Scams , , , , ,

Mr Ramirez: A Judge Believes that Calling you a Crook is OK!

March 25th, 2011

It is not for me to say so given that, at the end of the day, I don’t even know the man nor have I ever heard him con anyone over the phone.  It is actually Mr. Manuel Jaen Vallejo, presiding Judge at the Criminal Court in Malaga, who by virtue of a ruling dated the 11th of March 2011 has actually admitted that naming Mr. Mr. Fabian Marcelo Ramirez “swindler” and “crook” is actually not wrong.

The ruling came about in relation to the fight we are waging against legal boiler rooms, also known as recovery rooms, who, far from shying away from the police forces, are seemingly more active than ever (and more desperate as well). Mr. Ramirez, cocky as anyone could get, filed a court case last year against me and two more members of staff accusing us of harming his good name and impeccable reputation through several forums and blog posts.

The Judge has based his ruling on a Malaga Police report (below) that, basically, states that Mr. Ramirez has been arrested 4 times (years 2003, 2004, 2007 and 2008), for falsely promising his victims to recover  the moneys lost to many Costa del Sol-based boiler rooms, in exchange of an upfront fee.

Mr. Ramirez, according to the Malaga Police Fraud Group, has operated a succession of companies that were all devoted to scamming mostly British innocent timeshare owners. The Court ruling finds, quite naturally, that it is fully coherent and consistent with the above report to name Mr. Fabian Marcelo Ramirez a conman, and that freedom of expression has to prevail, above any other consideration, given its intense public interest.

I presume further action, by the Malaga Police Forces, is now underway.

Documents

Scams , , , , ,

Fraudsters Hire Andalucia Biggest Law Firm To Protect Their Activities

April 12th, 2010

Shocking as it may seem, the fraudulent company Ramirez and Ramirez (backed by a person called Fabian Ramirez Marcelo), in full defiance of the Spanish police forces, prosecutors and judges, has come up with a daring but also brilliant idea: to persuade the local firm of lawyers Martinez-Echevarría (ME) to take up a legal instruction to defend, endorse and protect their illegal activities, inclusive of filing a legal suit against myself, a colleague and the administrator of the site belegal.com.

To cut a long story short, Ramirez and Ramirez Abogados SL (now known as Ramirez and Ramirez Asesores SL) has been, during the last few months, cold-calling thousands of victims of many different scams, purporting to be a law firm, and promising to recover the funds they had lost, against payment of an upfront fee (up to €7,000). This fraudulent scheme is being devised mainly from Fuengirola and Benalmadena boiler rooms (flats turned into call centers staffed by salespeople, mostly expats, and a few Spaniards as the legal expert ‘housewife’ of the second recorded coversation below can attest to). The same modus operandi is being shared amongst at least fifty other similar fraudulent law firms doing exactly the same, mass contacting people to request payment under false promises. And it is resulting in a scam of enormous proportions.

I could have easily understood and accepted that ME took up the instruction once a criminal prosecution was filed against Ramirez and his gang for their illegal activities, as this is our job as lawyers. Period. But to actually bring a suit against two lawyers and a company director for defamation and libel on behalf of the organisers of the above scheme, is far more than one can digest without feeling convulsions and ultimately vomiting in the closest dustbin.

Anyone who has been around in this part of Europe for a while, and has been the slightest worried for the reputation of the Costa del Sol, could have known, whether by reading the ocassional newspaper, browsing through expat webforums or just being curious, that fraudsters are still massively cold-calling victims, on false pretences, to extract money for nothing. However, anyone who is a lawyer working with foreigners, should be by now absolutely certain that this is nothing but a scam, and report it to the police and the Law Society, as we have.

So since ME is taking me to the criminal courts on counts of defamation and libel, I decided to demonstrate them, before the hearing takes place, that they are not only very very mistaken, but also their actions can bring them shame and oprobium for the foreseeable future. Therefore, I called up two numbers provided to me on the Ramirez and Ramirez website to find out how this young and dynamic firm with over a decade of experience (sic, even though the domain name was registered last October 2009), or the leading law firm specializing in litigation (sic, even though the gentleman on the phone denies being a law firm) could help clients in getting funds back.

The Recordings

The first recording is in English and not complete due to a technical glitch, but is enough to infer that something somewhere is not right with the “young and dynamic leading litigation law firm with ten years of experience”.

The second recording (I’m afraid only in Spanish) is full, and is so embarassing that I would have laughed all the way through, were it not for the sinister nature of the activities that the lady on the phone, quite clearly knowingly, was conducting.

This text will be replaced by the flash music player.

Downloads

  • Ramirez & Ramirez Introduction Letter – Letter sent to clients in which Ramirez & Ramirez confirm they are actually a law firm, and have gained considerable experience acting in many complex cases.

The case continues…

Litigation, Scams , , ,