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Courts of First Instance

The Tuesday Slot: Legal News, Silverpoint & Anfi

Welcome to The Tuesday Slot and yet another public holiday in Spain, this one is called Fiesta Nacional de España or Día de la Hispanidad. This National Holiday has its roots in 1492, it was on this day that Columbus first set foot in the Americas. So as you will have already guessed, everything is going to be closed today, that includes the courts. But we do have some news from the courts, one item about Silverpoint and the other is important information regarding Anfi and the administration of two companies.

First Silverpoint, as we already know, although Silverpoint is in the process of liquidation with the Mercantile Court, there are still cases running in the Civil Courts, these will be Courts of First Instance and The High Courts.

These cases are going ahead as the aim is to release clients from their timeshare contracts and in many cases as “shareholders” in the “Company Participation Scheme” set up by Silverpoint themselves.

This scheme was designed from the outset to deceive, many clients who bought “shares in these companies” believing they were purchasing weeks or actual properties are now stuck in a very complex situation. They have no control over these companies but they do have all the responsibilities that go with them. In our thinking, this should not have been a civil matter but is clearly criminal in its intent.

The Court of First Instance Number 4 of Arona, Tenerife, has had the dubious pleasure of studying these contracts in the past, declaring them null & void as with other timeshare contracts. In this case, the Swedish Client has also had their contract terminated plus the return of over 650,000€, this also includes double the amount of illegally taken deposits.

This client will now have their claim processed by the Mercantile Court along with other clients which Canarian Legal Alliance is representing in order to safeguard their rights to payment and be confirmed as creditors.

Moving now to Anfi, following on from our previous news of Anfi Sales SL and Anfi Resorts SL being placed into “necessary administration” by the Mercantile Court, the Boletin Oficial del Estado, which is the source for official announcements, has now issued their bulletin on this matter. As soon as a copy is available, Inside Timeshare will publish it.

The newspaper El Diario, yesterday published an article by Ivan Suarez on the liquidation of these two companies, which are subsidiaries of the Anfi Group. Suarez reports that at the end of September Anfi Sales and Anfi Resorts entered the process for “necessary bankruptcy”, this was at the beginning of 2020 and on the application submitted by Isla Marina SL, (a Lopesan subsidiary), the debt was huge and probably underestimated. This is maybe due to the fact that the court claims had not been factored in by the petitioner.

The Judge Alberto López Villarrubia, presiding at Mercantile  Court 1 of Las Palmas de Gran Canaria, ruled in his order that these companies were insolvent, that they were unable to pay these obligations from their accounts or from any ordinary income, (remember our articles on the movement of funds?) placing them in the hands of a bankruptcy administrator, he will supervise their accounts, control expenses, negotiate the return of debts and, ultimately, attempt to prevent bankruptcy and full liquidation.

One of the entities that may just become the “main creditors” is the law firm Canarian Legal Alliance, which represents around 1,300 clients with claims at various stages of the legal process, with an estimated total value of over 56 million euros. That is an average of 43,000€ per client.

CLA Lawyer Eva Gutiérrez, who is the leading expert on Anfi and its accounts has been instrumental in the investigation of movements of funds, She is confident these resolutions will be ratified by higher authorities and is working to ensure that all clients are represented and have their payments secured.


CLA Lawyer Eva Gutiérrez,

Inside Timeshare has been informed that CLA is contacting their Anfi clients with all the latest updates and have already begun to prepare these claims. They also report that their legal team is time-limited on preparing their request for “credit recognition” and presenting it to the court-appointed administrator.

More on this story as and when it comes in, no doubt there will be plenty in the coming weeks.

If you have a contract with Anfi and would like further information as to its legality and on taking out legal action to have the contract declared null & void plus the repayment of your purchase costs, please use our contact page and Inside Timeshare will get back to you. Investigate now before it is too late.

El Diario Articles by Ivan Suarez

https://www.eldiario.es/canariasahora/tribunales/despacho-abogados-calcula-56-millones-euros-deuda-grupo-anfi-clientes-timesharing_1_8387739.html

An insolvent company or “a dream” for the banks ?: two experts draw opposite realities of the Anfi Group

English translation

https://www-eldiario-es.translate.goog/canariasahora/tribunales/despacho-abogados-calcula-56-millones-euros-deuda-grupo-anfi-clientes-timesharing_1_8387739.html?_x_tr_sl=es&_x_tr_tl=en&_x_tr_hl=en-GB&_x_tr_pto=nui

Translations

Danish

https://insidetimeshare-com.translate.goog/the-tuesday-slot-legal-news-silverpoint-anfi/?_x_tr_sl=en&_x_tr_tl=da&_x_tr_hl=en-GB&_x_tr_pto=nui

Dutch

https://insidetimeshare-com.translate.goog/the-tuesday-slot-legal-news-silverpoint-anfi/?_x_tr_sl=en&_x_tr_tl=nl&_x_tr_hl=en-GB&_x_tr_pto=nui

Finnish

https://insidetimeshare-com.translate.goog/the-tuesday-slot-legal-news-silverpoint-anfi/?_x_tr_sl=en&_x_tr_tl=fi&_x_tr_hl=en-GB&_x_tr_pto=nui

German

https://insidetimeshare-com.translate.goog/the-tuesday-slot-legal-news-silverpoint-anfi/?_x_tr_sl=en&_x_tr_tl=de&_x_tr_hl=en-GB&_x_tr_pto=nui

Norwegian

https://insidetimeshare-com.translate.goog/the-tuesday-slot-legal-news-silverpoint-anfi/?_x_tr_sl=en&_x_tr_tl=no&_x_tr_hl=en-GB&_x_tr_pto=nui

Swedish

https://insidetimeshare-com.translate.goog/the-tuesday-slot-legal-news-silverpoint-anfi/?_x_tr_sl=en&_x_tr_tl=sv&_x_tr_hl=en-GB&_x_tr_pto=nui

Start the Week: The Layman’s Simple Guide Supreme Court Rulings

Welcome to the start of another week with Inside Timeshare, over the past few weeks the rulings of the Supreme Court have been mentioned in many of the articles. These rulings have been simply explained in several articles over the years, but it is worth going over them again and explaining the main points of the law, which is the basis for all the contracts being declared null and void. We are seeing the results of this play out in various courts around Spain.

When Spain passed the Timeshare Law 42/98 in 1998 (updated with Law 4/12) which then came into effect on 5 January 1999, it should have come as no surprise to the timeshare industry, after all, it was totally unregulated and a free-for-all. The EU issued directives on the use, sale of timeshare and the protection of consumers, with the purpose that the directives were to be placed in each member state’s own domestic laws. The idea was to unify the rules for the industry Europe wide, so no matter where a consumer purchases they are all protected equally.

As is always the case with any new law, there is always debate on the interpretation of those laws, the timeshare laws were no exception. The industry employed teams of lawyers, with the Industry Trade Body the RDO at the head, all looking at how they will be affected and more importantly how they can manipulate the interpretation of those laws to their own advantage.

In a way, they were very successful at the start, the law did allow for timeshares sold before it came into force for those contracts issued before that date to be legal under the “Deed of Adaptation”. With any law, it cannot be enforced retrospectively, so this “Deed” allowed the timeshare resorts to continue those contracts under the old regime.

However, all new contracts sold and issued after 5 January 1999 would most definitely come under the new laws, a point the timeshare resorts decided to ignore, probably on advice (we say this tongue in cheek) from their own (expensive) lawyers. They interpreted the “Deed of Adaptation” in a different light to what the lawmakers had intended.

According to their way of thinking, as the “resort” was up and running before the law came into effect, then the “Deed of Adaptation” would cover all new contracts sold. They believed that it only affected new resorts and not existing ones, Anfi is a very good case in point, this has been the main basis for all their early appeals.

Consumers Beware!

It should also be said that the industry trade body, the RDO, (Resorts Development Organisation) appeared to back up this belief, even today the RDO still believe that the interpretation of the law is wrong!

At first, the timeshare companies were successful in arguing their point before the courts, after all, it was a new law, there was no real direction for the courts and judges to follow. It was basically down to them to decide on the evidence and interpretations presented to them.

Consumers who tried to bring cases lost, the lawyers who they employed were not experienced in this field of law and had rings run around them by the experienced lawyers of the timeshare companies. What was put into place to protect consumers, was not working, everything was in favour of the industry.

The length of the contract, which was limited to a minimum of three years and a maximum of 50 years, was being defeated in the courts, the timeshare companies lawyers successfully arguing that the “Deed of Adaptation” covered this point.

Deposits being taken within the “statutory cooling-off” period were illegal but still being taken, this was hidden by various means, such as an “invoice” showing payment for accommodation, not linked to the timeshare sale. This was very common when the purchaser was moved into the resort to complete their vacation after purchase, usually as a way of consolidating the deal.

Tribunal Supremo Madrid

The very first case to make it to the Supreme Court was the Norwegian lady Mrs Tove Grimsbo, this was against Anfi. Her case began in the Courts of First Instance, and after many appeals to the High Court, it came before the Supreme Court which eventually made a ruling. Legal History had been made, the judges ruled her contract was illegal on this and other points, the “Deed of Adaptation” did not apply. Contracts over 50 years in duration were most definitely illegal.

The second important case to come before Spain’s Highest Court was Mrs Shirley Wilson and her case against Silverpoint /Resort Properties.

This particular case was one of the most difficult for the courts, there were many aspects that were unclear as to the interpretation of the law.

In the case of Mrs Wilson, she was sold “timeshare” as an investment, it was portrayed as not being timeshare but property or real estate. This would generate a rental income and a profit for her when finally sold, well, we all know the story of this particular scheme.

At first Silverpoint lawyers argued that she was not a consumer of timeshare but an investor in property, therefore the timeshare laws did not apply. Eventually, the Supreme Court ruled that what she purchased was indeed timeshare and not property. A very significant win for all consumers who purchased from Silverpoint.

Another very important ruling, in this case, involved the use of the timeshare, there was no week number or apartment number attached and the consumer had no right of use of these timeshares. Basically, there were points attached for any use within the resort system.

The Supreme Court ruled on this, citing Article 1.7 of Law 42/98, this reads as follows (Translated from Spanish):

“The contract under which constitutes or transmit any right, real or personal, for more than three years and on the use of one or more real time during a specified or ascertainable period a year on the sidelines of this law shall be null and void, owing be returned to the purchaser or transferee or paid any income considerations, as well as compensation for damages suffered.”

All we can say is no wonder there was confusion.

Basically what it states is that a timeshare must consist of a fixed week with a week number and an apartment attached which is available each and every year to the “owner”. With points or floating week, this right is removed and is a “right to use subject to availability”. Not really what you have paid for.

This was the first ruling on points and floating weeks, it established the precedent that unless the timeshare was a fixed week, with number and apartment, then it was illegal under the law.

So these two cases set the scene for the situation we have today, 130 rulings from the Supreme Court, squarely placing the law into jurisprudence. This is being followed closely by the Courts of First Instance and the High Court as we have been seeing with all the cases we highlight.

There are many other laws that a competent timeshare lawyer may use as well as the timeshare laws, these may be covered by Consumer Laws and Mercantile Laws, but these are on a case by case basis, so may not apply to all timeshare contracts. It is certainly a legal minefield.

Despite all the rulings and rejections of appeals made by the Supreme Court and the dismissal of appeals by the High Court, in accordance with the Supreme Court Doctrine, we still see timeshare companies making appeals. This is something that baffles all lawyers, consumers and forums such as Inside Timeshare, leaving us with the same old question “WHY?”

The only logical reason we can think of is “greed”, they have your money and don’t want to give it back and any method to avoid payment will be used. A very costly strategy indeed.

Greed or Stupidity?

Did you purchase a timeshare in Spain after 5 January 1999, is the duration longer than 50 years, is it points or floating week based, this includes fractional, did you pay any deposit within the statutory cooling-off period?

If you can answer yes to any of these, then you may have a valid case. For further information on this or any other subject on Inside Timeshare, please use our contact page and Inside Timeshare will get back to you.

Links to past articles

2016

https://insidetimeshare.com/supreme-court-rulings-simply-explained/

2018

https://insidetimeshare.com/spanish-timeshare-laws-simply-explained/

2020

https://insidetimeshare.com/spanish-legal-history-the-story-of-the-supreme-court-rulings/

Links to early CLA Supreme Court cases

https://canarianlegalalliance.com/?s=supreme+court+2016

https://www.eldiario.es/canariasahora/tribunales/supremo-condena-empresa-variante-timesharing_1_1160134.html

https://insidetimeshare.com/supreme-court-rules-silverpoint-twice-one-week/

Start the Week: News from the Courts

Welcome to the start of another week with Inside Timeshare, we ended last week with Part 5 of our series on Anfi: The Story Behind the News. It is by no means the end, it is one that is developing as the investigations move forward and delve deeper into the murky world that has been created at Anfi. Today we catch up with some of the news from the courts, as usual, Anfi is there, but there is also another case involving Diamond which has caused a few gasps.

We begin with news from the Courts of First Instance in Maspalomas, once again these courts have issued their judgements on cases heard against Anfi Contracts. All the contracts have been declared null and void, with an order for the clients to receive a full refund of the original purchase price.

This includes double the amount in respect of the illegally taken deposit, plus, the clients have been awarded Legal Interest and Legal Fees.

The cases were heard in Courts 1, 3 and 5, with all three judgments being consistent with the rulings of the Supreme Court.

The total awarded without legal interest or legal fees is a massive 116,908€, with the lawyers already instigating “enforcement proceedings” to secure the funds. It is also expected as we have come to see so often that Anfi will file yet another “frivolous” appeal.

No doubt we shall be reading about all three dismissals by the High Court in the coming months. Well, something to look forward to!

All three clients had their cases prepared and represented in court by Canarian Legal Alliance.

The Swiss clients were represented by: Oscar Salvador Santana Gonzalez.

The English and Norwegian clients were represented by: Eva Gutierrez and Cristina Batista.

Eva and Cristina are regarded as the foremost experts on Anfi, it is their tenacity during their investigations that has given CLA the upper hand against Anfi, providing the means to ensure their clients do eventually receive what they are due.

The clients were guided through the process by their respective Legal Consultants, Evi Richter, Jake Kaiser and Stefan Johannesen.

On Wednesday news was received that the Court of First Instance Number 5 of Estepona issued their judgement on both contracts held by Dutch clients, against MVCI Holidays Ltd and MVCI Management SL.

The contracts were declared null and void with the judges ordering Marriott to repay a staggering 112,130€. This is 47,000€ more than they originally paid. The original contract was for 47,330€ with an additional 64,400€ added in respect of the illegally taken deposits, within the statutory cooling-off period.

There is also the Legal Interest and Legal fees to be added to this, but the most important point is they are now timeshare and maintenance-free.

Only two weeks ago we reported that Diamond, now owned by Hilton, had very quickly paid into the court account the amount required. This caused a bit of a shock as in the past there were many attempts to delay this.

We can now report that yet another payment has been received by the courts.

This news has now confirmed that English clients of Canarian Legal Alliance are to receive payment, this at present is subject to the usual procedures before the court releases the money. At least they now have the knowledge that the end to a long wait is almost over.

It is still a question that has yet to be answered, but is this change a byproduct of the Hilton acquisition of Diamond?

Considering their past reputation as a quality chain, the fact that Hilton is listed on the stock market and is responsible to their shareholders, we cannot discount this possibility. After all, Marriott had to announce the legal and litigation costs paid and projected to their shareholders.

In another good piece of news from the courts, this time the Supreme Court, yes there are still cases being placed before them, despite all the rulings they have now made.

This case was brought by Diamond, and you all thought we were going to say Anfi!

We know the case was filed quite some time ago, as it is a long process at the Supreme Court, but now they have issued their judgments. As expected, they have referred to their previous rulings, which have defined the law which all courts from First Instance to High Court are following to the letter.

They once again found no “contradiction”, no “inconsistencies” or any other factor which would render the original judgements flawed and unsafe, which would have then been grounds to hear the full case and possibly overturn the original sentence. But these cases are about the contracts and that is what matters, they are illegal having been deemed so in numerous rulings by the Supreme Court and no amount of appealing is going to change that.

As it is, the court completely rejected the appeal and confirmed the law and the original judgement by the Court of First Instance and ratified by the High Court. This is certainly a big signal to the timeshare companies that the Supreme Court is not going to be used for what we can only describe as frivolous and time-wasting cases.

It is probably not the last case that we will hear about, there are obviously more sitting in the court’s files waiting to be processed, all to delay the inevitable. Will they ever learn?

If you would like more information on any of the stories or cases published or would like information on whether you have an illegal contract and what legal rights and options are open to you, then please use our contact page and Inside Timeshare will get back to you.