Antonio Flores’ Blog

Mr. Macanthony is waiving the banner of victory and some calculated dose of persecution mania since knowing that the “Audiencia Nacional” has chosen to defer the criminal complaint filed for swindle and misappropriation to the Courts in Marbella. Alas, he has conveniently omitted the fact that the Courts have not made any comment on the claim itself other that stating that this likely criminal activity is to be heard elsewhere.

The Audiencia Nacional has taken the route of stating that the “possible” swindle and misappropriation is not in a massive scale that could affect the normal performance of the Spanish economy, and thus determines that it should be the Marbella Courts who should deal with this matter.

Our choice of the Audinecia Nacional was based on the multiplicity of points of contact which involved several jurisdictions, including a 90-year-old Peruvian-domiciled yet Madrid-based Spanish former civil-war combatant who was the director of choice for Mr. Macanthony’s companies, claimants from different countries and defendants equally based abroad.

From a substantive-law point of view, the same rules apply whether it is the Audiencia Nacional or the Court of Instance. From a procedural point of view there will be variations.

As a result of this rather inconvenient criminal complaint, Mr. Macanthony has clearly taken a personal distaste for me and has reserved his best and most emotive words for the undersigned: ambulance-chaser, small-time lawyer, non-real lawyer and rather insultingly and defamatory, the concocting of a twisted story whereby I had approached his representative in Marbella, asking for money in exchange for dropping the case by spuriously persuading my clients that there was no such case to be had (when the reality is that two lawyers in our firm had been approached by him, on instructions of Macanthony, proposing that we became his new Spanish representative, with an offer of a blank check; This man failed to mention whether it was a Euro or Soles-denominated check, the Peruvian currency).

Claimants have requested from the Courts that Mr. Macanthony answers the following:

1. Where is the money paid by 51 of his former clients for furniture packs?
2. Why did he alternate company directors, choosing an insolvent 90-year old man, Fernando De Arespacochaga Alcalá del Olmo, living in Lima, Perú, to front a company acting as a director for his dying companies?
3. Why did he re-domicile his companies to a non-descript office in Madrid that serves as a cemetery for creditor-dodging companies?
4. Why did lucid Mr. Arespacochaga appoint in March 2005, November 2005, December 2006 and December 2009 four different company directors, all of which now deny knowing what were their roles?
5. Why did he disappear from Spain and not file for insolvency? (reputation perhaps?)
6. Why is he the subject of a forum with over one thousand members with an axe to grind? (this I think he has answered…).

Antonio Flores Litigation Darragh MacAnthony, Fernando De Arespacochaga Alcalá del Olmo

On the subject of Spanish litigation, in my experience, there seems to be quite a bit of confusion in respect of several aspects related to the way justice works in Spain, such as how long court cases take, what sort of costs you expect to face, etc. I have found some interesting statistics which I will sum up in a few bullet points below.

• Duration of court cases According to a report issued by the supervisor for the judiciary (CGPJ), courts issued rulings in the following average time:
  • Civil cases: 7.7 months
  • Civil appeal cases: 4.9 months
  • Divorce mutually consented: 1-3 months
  • Administrative cases: around 15 months

• Number of court cases in a year In all of Spain, last year  just over 9 million court cases were filed, around the same amount were finalized and just over 1.6 million rulings were passed. Andalusia is the most belligerent regional community in 2010, with 230 court cases per 1.000 inhabitants. The least is La Rioja, with 136, no doubt the wine would have something to do with it!

• Compensation granted for courts responsibility for defective operation in 2010, approximately €5 million were awarded in compensation for defective or dysfunctional dispensation of justice.

• Number of complaints In 2010, a total 16,650 complaints were lodged in relation to the dispensation of justice. Of these, 200 complaints were received in the Law Societies.

• Money lodged within court bank accounts At the end of 2010, Banesto bank (the officially appointed by Spanish courts) had a balance in its accounts of €3.3 billion. I have a client with 1.4 million sitting there since June last year.

• Number of Prison Inmates In 2010 75,000 people were confined in Spanish prisons. Of these, 35% were foreign.

Average Length of Court Cases in Spain in 2010

A note on the Cost of Justice in Spain

Firstly, justice is free in Spain as such, as court action does not cost money, except for a symbolic deposit and a higher sum when you go to the Supreme Court.

It is the lawyers that make up for the costs, and this is what we would call Court costs in Spain. Many people believe that when you lose a case, you have to pay the other parties lawyers’ fees to be calculated depending on the hours of work of the lawyer, the professional prestige of the lawyer in question, what other costs these lawyers may engage when litigating (private investigators, detectives, technical reports etc.), so that in the end, these are often far beyond the actually monetary worth of a case. However, in Spain the Law Societies stipulates what sort of costs are to be awarded, on the basis of a number of rules which, generally, are based on the value of the claim.

Antonio Flores Litigation spanish courts

My client has had a narrow escape: having been notified in early March by the courts that his property was to be auctioned by Danske Bank, at 11:00h of the 8^th of June 2011, we managed to obtain from the same court a ruling suspending the auction exactly…24 hours before (just like that one last call from the Alabama Governor…)

And prior to this, on the 27^th of May 2011, that is, just a few days before the auction, we are advised, through the courts (Document in PDF), that, unbeknownst to him, my client did indeed have €126,946.64 with Danske Bank, in some account in Luxembourg, which is what he had been wiring to them, over the years, to attempt to placate them and avoid being kicked out of his retirement home bought with his life-savings. One can only imagine the topnotch service Danske bank provided my client once they had abandoned Spain, not before trying to repossess a few homes in its wake. Danske Bank had all but forgotten about this money until the very end, and they have the cheek to say that the debtor had paid up this sum when, as a matter of fact, it had been blocked for years.

So if it was not enough stress, we added that extra bit to it by, unwillingly, choosing the latest of the possible dates (other than tomorrow) to set aside the sale at public auction instigated by Danske Bank against a 73 year-old retired mariner victim of an equity-release, who had been conned into believing that, by going with the biggest Bank in Denmark and contracting what is effectively a tax-evading financial product on his unencumbered retirement home, he would have a monthly payment coming his way, pretty much all the inheritance tax his daughters would be hit with waived or wiped out and all of it, without risking anything (apart from his home, his health and, potentially, his two beautiful daughters’ freedom, as they would have been eligible for prison sentences to be served at Alhaurin prison, 10 minutes’ drive from the foreclosed home, had they followed Danske Bank’s careful tax planning).

The Judge had no choice but to suspend the auction as, alongside these foreclosure proceedings claiming approximately €845,000 (which is what Danske Bank’s clever and optimized investing has lost, or rather, in my opinion, allegedly misappropriated), a criminal complaint had been lodged in Mijas against CEO Peter Staarup and his sales guys once based on the Costa del Sol, including an unregulated IFA hired by the bank.

These are some the promises made by Danske Bank on its prospectus:

• Exempt from Spanish Inheritance Tax : if the beneficiaries, on the death of the insured, are not residents in Spain, the capital will not be liable to Spanish inheritance tax.
• Investment Strategy: CAUTIOUS

If this is what the HMRC thinks about tax-avoidance schemes, what would they say about the Danske Bank Tax-Evasion Capital Assurance product?

Documents

• 21-03-2011 – Danske Bank Equity Release Lawbird Client Case – Auction Notice (PDF – 70Kb)
• 07-06-2011 – Danske Bank Equity Release Lawbird Client Case – Auction Judge Suspension Order (PDF – 72Kb)

Antonio Flores Litigation, Mortgages Danske Bank, equity release