Overseas Property Lawyers Specialising In Buying & Selling Property Abroad

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Courts in Spain get tough on Foreign Currency Mortgages 04.01.2018

Recent Court decisions in Spain have highlighted the fact that foreign currency mortgage problems are not limited to jurisdictions such as Cyprus where largescale problems have been incurred by borrowers in the Swiss Franc denomination and are currently subject to ongoing court Actions in Cyprus.

These rulings demonstrate that the Spanish Courts are also getting tough on foreign currency mortgages.

There have been a series of such Court cases in Spain, primarily through the Courts in Madrid against BankInter in relation to specific mortgage clauses within their mortgages that gave raise to losses by borrowers.

A judgement by the Court of First Instance No 86 in Madrid issued on 22nd September 2017 involved a case against BankInter.

In that case the Court decided that the bank should cancel the late payment clause in the mortgage agreement and that the costs should be recalculated to effectively take out the exchange rate risk and losses that were incurred due to the mortgage being in a different currency. The currency of the mortgages had been set in Japanese Yen.

The court took the view that the clauses that linked the mortgage to things that happened abroad – i.e. outside of Spain - were abusive and therefore ordered that these were effectively cancelled and the clients put back to a position as if those clauses didn’t exist; and the mortgage had been on the basis of a straight forward Euro loan.

Other recent cases in Spain have confirmed this approach by the Courts and have strengthened the argument that foreign currency mortgages are abusive, not transparent and not generally in the best interest of clients.

On 19th December 2017 Court Number 48 of Barcelona ruled against Caixa d’Estalvis (which no longer exists on its own and is now part of BBVA) in a case where a mortgage of €300,000 had cost the borrowers €122,773 extra due to a foreign currency clause linked to Japanese Yen.

The Court again ordered that the Bank recalculated the mortgage back to Euros and that they (the Bank) restored the clients back to the position they would have been in had the mortgage always been in Euros. This included returning the over payment plus costs.

In this case the bank had tried to argue that the borrower was a “sophisticated investor” as he was a businessman and therefore was able to understand the implications of the mortgage. The Court rejected this argument on the grounds that the purchase was the main residence and not related to his business.

Another case dated 22nd December 2017, this time in Court number 3 in Madrid, had a very similar result. In that case the mortgage was taken out in Japanese Yen and the Court again ruled that the multi-currency clause in the mortgage was invalid due to a lack of transparency and that the borrower should be put back into the position as if the mortgage had always been in Euros.

Although it was common for British people to take out a multi-currency mortgage in some countries, this was not common for foreigners purchasing second homes in Spain.

Therefore, if any borrowers have a foreign currency mortgage in Spain these rulings mean that it is possible to raise a claim back to the position that they would have been in if the mortgage had been in Euros.

Property owners with a Swiss Franc or Yen Mortgage in Cyprus may wonder what impact these two decisions have on their cases. Unfortunately these decisions, just like the previous similar decisions in the Courts of Hungary, Croatia and Greece, are not binding in another country and therefore cannot be used to strengthen a case in Cyprus. What is clear, is the Banks in Cyprus and other Jurisdictions will be monitoring all proceedings and rulings achieved in favour of borrowers will naturally have an impact upon their future actions.

If you have a foreign currency mortgage in Spain or in Cyprus and would like to further information please contact us for a no obligation discussion about how we can assist.

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Timeshare Cancellation Companies Warning 28.11.2017

The Timeshare world is a murky one. One thing can look like another and some companies spend quite a bit of time and effort hiding their true identity or objectives. This is true not only for the timeshare resorts and sales companies but also the huge industry that has arisen around timeshare cancellation. There are many scams and fraudsters that occupy the timeshare cancellation industry and unfortunately many people haven’t realised this yet.

One common scam is for a timeshare cancellation company to be a front for timeshare sales. The way that this works is that you think that you are dealing with a reputable timeshare cancellation company but in fact what they will do is persuade you to buy another timeshare or another product under the premise that this will somehow magically get you out of your Timeshare. We call this “The Upsell Scam” as the whole aim of the company is not to get your out of your timeshare but to sell you something else.

Another scam is to hide fees and make things look free when they aren’t. Timeshare cancellation companies are often very good at making their services look free or low cost when in fact they are nothing but. There are a couple of ways that they can do this. First of all they can keep their fees low or free but then add on a load of “costs” for things such as taxes, court fees and so on which are often completely fictitious. The second way that they can do this is that they set up a series of different companies and the public facing company is technically free but then they pass you over to their sister or affiliated company who then does charge. Often the two companies are owned by the same people and the setup is simply a front so that they can genuinely say that the first company doesn’t charge.

A major problem is that you often don’t know who you are dealing with. Timeshare cancellation companies often have a whole series of different companies set up. They may have one company who is used to capture new clients. Then they may have another that gives the initial advice and assesses the case. Then they may have another that actually does the apparent cancellation. You have to ask yourself why they need such a structure. Why is their set up so complicated? What are they hiding? What advantage is it to them to do this? Generally speaking if there is an overly complicated structure with a series of different companies the people behind this structure have something to hide and are trying to pull the wool over your eyes. The more companies you have the more complicated and costly it is to run such an enterprise so there has to be some benefit to doing so and normally this is to hide something.

Furthermore there are internet forums designed specifically to make it look like they are independent and run for the benefit of timeshare owners when in fact the whole purpose behind them is to funnel readers and contributors to a particular company so that they can capture you as a client.

So what can you do to avoid being caught by the less scrupulous timeshare cancellation companies? We think that there are a few things that you can do to protect yourself. Here is our top ten tips;

Only deal with a registered and regulated law firm. In the UK solicitors are regulated by the Solicitors Regulation Authority (SRA). In other countries there is the equivalent of the SRA with Colleges of Law and Bar Associations. Being registered means that not only does the company have to follow a set of rules and a code of conduct and ethics and has to answer to their regulatory body if they do something wrong but also that they have to have certain minimum requirements such as indemnity insurance.
Check who is behind the companies involved? In the UK you can check the names of the Directors for free at Companies House. You can then click on the names of each of the Directors to see what other companies they are involved in. Build up a picture of what the set-up is. It is surprising how often you see the same names coming up for companies that are supposed to be independent from each other. You can quickly identify whether one company is simply a front for another.
What is the track record of the company? Do some research into the company before making contact with them.
Never deal with a company that cold calls you. Genuine timeshare cancellation companies have no way of knowing that you have a timeshare let alone that you wish to cancel. If you are contacted out of the blue by somebody offering to cancel your timeshare do not use them no matter how genuine their excuse for having your details sounds.
Have a look a how long the company has been established and how long their website has been running. If they have only just recently been set up could this be because they are a scam that regularly sets up a company, scams people, closes down the company and then starts again? Is a new company simply a front for something else?
Are they trying to make themselves look more official than they really are? Do they try and look like a law firm when they aren’t? Do they have a name that makes it look like they are an official association, body or government organisation when in fact they are simply a private company with no official recognition at all? Look carefully at the wording of their website and then cross reference this with your research. Do not assume that a company is regulated, approved or official just because it has a name that makes it sounds like it is.
Are there proper contact details on the website? Is the address, company number, telephone numbers etc on there? Many scams companies simply do not put their proper contact details on there and have just a telephone number and an email address but no details of exactly where they are based.
Are they offering something that sounds too good to be true or are there strange suggestions being made. Comments such as “The service is free as it is paid by XYZ Ltd” or “There is No Cost as we have a sponsor or benefactor” or even the fact that one of the companies is described as being a “Not for profit company”.You should ask yourself why anybody would do this for the timeshare industry. The short answer is that this is often simply a front and a way of drawing you in with a view to charging fees later on. Those other companies, sponsors or benefactors are normally the same people who are running the original company and who also have a timeshare cancellation company that will charge fees. It is easy to check this. Charging fees is not a problem but not being honest and up front about the fees from the beginning is.
If you are being recommended to use a company on a particular website or forum ask yourself who is behind either that website or. Timeshare forums and websites are often set up as a front to channel you in the direction of a particular company. You can look up who owns a website by using a “Who Is” service on the internet. This is free and easy to do. You can then see who actually owns the website or forum and carry out some research into them. It is possible to hide your details so that nobody knows that you own that website. If a company hides their identity then we suggest you don’t use them – after all, what have they got to hide and why don’t they want you to know who owns that website?
If a contributor on a forum recommends a particular company go and have a look at their other posts to try and work out if there is a trend there as they may actually work for that company, particularly if they use an anonymous forum name. There are many people who infiltrate forums simply to try and drive traffic to their business. Some are more subtle than others. A quick look at the other posts that they have made on that forum can give you some indication as to their intentions. If they have only made a few posts and they all recommend the same company it is a fair bet that they work for that company. If, on the other hand, they have made many posts on a wide range of subjects and appear to make sense in all of them then they may be genuine. It is good forum etiquette to be honest about whether you have an affiliation with a company that you are recommending or endorsing.

If you would like to speak to a UK solicitor regulated by the Solicitors Regulation Authority that specialises in Timeshare issues then contact us.

Disclaimer – International legal issues are a complex area of law and this information is no substitute for independent legal advice on an individual basis taking into consideration your personal circumstances and legal requirements. This information is provided to provide general information only and was correct at the time of publishing. The legal position in relation to international transactions can change frequently and this page may not have been updated following any changes in the law. You should therefore not rely on this information and should seek legal advice in relation to your personal circumstances.

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