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EVA GUTIÉRREZ

Anfi: Another Appeal Dismissed and Latest on New Contracts

Appeals by Anfi against the judgements of the Court of First Instance have become a common feature on Inside Timeshare, not a day seems to go by without yet another appeal being dismissed and today is no exception. Although Anfi has the legal right to lodge an appeal, it beggars belief that they continue to do so even when every single appeal is being rejected and the original sentence is being upheld. We also have a look at the latest information being given to members of Anfi regarding the signing of the “New Contracts”, which in theory conform to current timeshare legislation.

We begin with the latest case to be dismissed by the High Court Number 5 of Las Palmas, Gran Canaria.

High Court of Las Palmas Gran Canaria

The case involving a Norwegian client whose original case in the Court of First Instance Number 4 of San Bartelomé de Tirajana, was prepared and presented by Canarian Legal Alliance.

In the original sentence, this court declared the contract null and void, they also ordered that Anfi repay the client 31,770€ plus interest. A sentence that follows all those which have been past previously. After all, the courts are applying the law as laid down in 131 Supreme Court Rulings.

The three basic principles being:

  • The contract is for a duration of more than 50 years, known as perpetuity;
  • The inclusion of floating weeks and points systems;
  • The taking of payments even by a third party within the statutory cooling-off period.

In this case, the Court of First Instance followed these principles.

Yet as expected Anfi filed their appeal with the High Court, the reason, well that is pure speculation, but we do believe that it is an attempt to cause as much delay in paying as possible, plus, to cause as much stress and anxiety to the client as possible.

We already know that the Provincial Prosecutors Office is investigating Anfi, part of this investigation is centred on the movement of funds to empty bank accounts. This then prevents any embargo from being enforced as there will be no money in the accounts. This investigation could lead to criminal charges being filed.

As we have come to expect from the High Court, they dismissed the appeal and fully endorsed the sentence of the lower court.

The case has now been returned to that court for execution of sentence, so we expect this client will soon receive the payment into their own bank account.

The case was prepared and present by the CLA Lawyer Eva Gutierrez with Claims Consultant Lotta Nielson assisting the client during the long process.

Moving now to the “New Contracts” Anfi is trying so desperately to make members sign.

We have been publishing on this subject since May 2017, at this meeting, Anfi put forward three proposals for changing the new contracts. Full details on the result and the proposals can be found in the links below.

Since that time, Anfi has been trying to get members to sign the new contracts with varying excuses, these have ranged from “bringing the contracts” in line with current legislation and “updating” the member’s database. This has included adding others such as family to the contract.

The last method which they have employed recently has resulted from the closure of resorts due to the pandemic restrictions being enforced around the world.

Because of this, the vast majority of members were unable to use their weeks in 2020 and it looks very unlikely they will have any better luck this year.

What Anfi have done is nothing short of “Blackmail”, unless the member signs the new contract, the week they were unable to use last year, which they have already paid their annual maintenance fees on, will be lost.

Sign the “New Contract” and Anfi will give you an accommodation voucher to save your week for use in the coming year. We suspect this will be the same for those who are unable to use their weeks this year!

Recently, Anfi has begun yet another campaign to “force in” these new contracts, according to the independent timeshare lawyer Javier Correa, this is what Anfi are saying:

“According to the legal changes, each member now has a fixed week in the contract, so that a value is specified with the number of square meters and cadastral registration data. The inventory that is taken internally from the system can also be viewed by the member. So that you don’t have to come to the specified week, we have an extra document for you which is marked with “Registration in the flexible system”.

In this document, you relinquish the right to the week that is in the contract to us so that you can freely choose the week, the apartment and the day of arrival as usual. Nothing will change for you when using the weeks and you will remain flexible.

By enrolling in our flexible exchange system, we guarantee you will continue to be flexible, you will continue to book in the future as before”.

The underlying concern for this lawyer and on reading the above Inside Timeshare agrees this “New Contract” is being portrayed as “MANDATORY”.

Javier Correa

Considering Anfi’s attitude toward those with unused weeks, this conclusion is very valid.

So what if you sign the new contract?

The answer is very simple indeed, you lose all your legal rights to sue Anfi for the illegal selling of your contract, you waive your rights to legal redress and having your contract declared null and void, with the repayment of the full purchase price plus double any payment taken illegally within the statutory cooling-off period.

In other words, they know that with every case that is found against them by the lower courts and subsequently on appeal, more cases will follow.

Now, on reading the above which was issued by Anfi, it is clear this is another attempt to circumvent the law.

Although they claim that each member will be given a specified week and apartment number, which is the fixed week system which is allowed by law, but the telling thing is the “separate” contract or as they put it “document”. They call this the “Registration in the flexible system”.

On signing this “addendum”, the member waives their right to the numbered week and apartment and being placed in this “flexible system”. Hang on, does this not look like retaining the “Floating Weeks”?

We know not everyone is able to or wants to vacation the same week every year, most people do, but sometimes due to personal circumstances that may not be possible. Is this not what the old “internal exchange system” covered, after all, it was just like banking and exchanging with RCI or Interval International?

Only when it suits us!

So once again, we see Anfi trying to pull the proverbial wool over the eyes of their “valued members”, no doubt there will be some lawyer who will find that this “New Contract” is just as illegal as the original. This is something which we will watch with great interest and we expect that it will be contested in the courts at some point in the future.

If you would like further information on your legal rights regarding illegal contracts whether it is Anfi or any other resort, please use our contact page and Inside Timeshare will get back to you.

Past articles on Anfi Special Meeting

https://insidetimeshare.com/anfi-sgm-what-are-they-up-to/

https://insidetimeshare.com/anfi-special-general-meeting-vote/

Anfi and the new contract to save weeks.

https://insidetimeshare.com/start-the-week-anfi-continues-to-upset-members/

Anfi in the press

https://insidetimeshare.com/anfi-hits-spanish-television-news/

https://insidetimeshare.com/news-update-jsd-group-anfi-back-in-the-news/

Translations

Danish

https://translate.google.com/translate?sl=en&tl=da&u=https://insidetimeshare.com/anfi-another-appeal-dismissed-and-latest-on-new-contracts/

Dutch

https://translate.google.com/translate?sl=en&tl=nl&u=https://insidetimeshare.com/anfi-another-appeal-dismissed-and-latest-on-new-contracts/

Finnish

https://translate.google.com/translate?sl=en&tl=fi&u=https://insidetimeshare.com/anfi-another-appeal-dismissed-and-latest-on-new-contracts/

German

https://translate.google.com/translate?sl=en&tl=de&u=https://insidetimeshare.com/anfi-another-appeal-dismissed-and-latest-on-new-contracts/

Norwegian

https://translate.google.com/translate?sl=en&tl=no&u=https://insidetimeshare.com/anfi-another-appeal-dismissed-and-latest-on-new-contracts/

Swedish

https://translate.google.com/translate?sl=en&tl=sv&u=https://insidetimeshare.com/anfi-another-appeal-dismissed-and-latest-on-new-contracts/

End the Week

Welcome to the end of another week with Inside Timeshare, as usual, we have been receiving many emails with either information on new “cold callers”, information on past “fake” law firms and some of the scare tactics being used by the unscrupulous “companies”. One of these is our old friends from the Málaga, Iconel Administration. We also brought news from the courts and in particular the win at the Mercantile Court of Las Palmas Gran Canaria against Ona Group. Yesterday we published some news on the “battle” being waged by Diamond Resorts against “exit” companies in the US. In one case the court agreed with the “exit” company and found against Diamond, looking at the case it is clear that Diamond is using some very underhand tactics.

We begin today with an email received from a client of another law firm whose case against Silverpoint has been delayed. This has been caused by the lawyers acting for Silverpoint refusing to attend court and defend them. Then we had the problem with courts being closed due to the pandemic, we have also reported here in the past the tactics employed by Silverpoint in attempting to delay proceeding further.

Unfortunately, this reader has been called several times by so-called “claims companies” who have attempted to make him believe that the law firm that is representing him is not doing their job. They claim that they would have had his case in court and finalised in 6 to 12 months. Anyone who knows the court system in Spain or any other country for that matter will know that is virtually impossible, yes, some cases have been heard within that period, but these tended to be uncontested cases and one of a very simple nature.

We now move to the latest news from the courts of Tenerife and two cases recently completed.

The first involves a client from Norway who purchased their timeshare from High Mountain Enterprise SL, which is Club Laguna Holiday Villas.

The case was heard at the Court of First Instance Number 1 of Granadilla de Abona, where this court declared the contract null and void, awarding the client 36,652€ plus legal interest. The company immediately lodged an appeal with the High Court of Santa Cruz de Tenerife.

This court dismissed the appeal and confirmed the judgement and sentence of the original court, returning the case for execution of sentence. 

The way the court calculated the award is 17,952€ in respect of the amount paid on the contract plus double the amount illegally taken within the statutory cooling-off period which came to 18,700€. One happy Norwegian client.

The chase was prepared and presented by the Canarian Legal Alliance Lawyer, Miguel Angel Melian Santana.

Our second case involves a Dutch client who purchased from Gestiland 2000 SL for Club Marina Tenerife.

The case was heard at the Court of First Instance Number 5 of Arona Tenerife, who declared the contract null and void with the return of 44,978€ plus legal interest and legal costs. The breakdown of the award is 28,098€ for the contracts plus an additional 16,880€ which is double the amount taken by way of illegal deposits taken within the statutory cooling-off period.

This case was prepared and presented on behalf of the client by the CLA Lawyers Eva Gutierrez and Christine Ihmann, with Claims Consultant Evi Richter assisting the client.

It is very clear the courts are following the rulings and directions of the Supreme Court in respect of illegal deposits. It is also very clear that the High Courts are constantly dismissing and rejecting appeals confirming the original sentence and judgements.

That is all for this week, have a great weekend and join us again next week with more news and views of the timeshare world.

Important Court News: Diamond Lose Jurisdiction Case

Although today in Spain is the Feast of the Three Kings or Día de Los Reyes Magos, or most commonly known as The Epiphany, news arrived late yesterday of yet another case involving “Jurisdiction” of contracts. This is a very important decision from the courts and is following all other rulings made by various courts around Spain on this matter, that Spanish Courts do have “Jurisdiction” on any contract purchased, signed and paid for in Spain, regardless of the “clauses” in the contract.

Over the past couple of years, we have seen many cases being delayed due to this particular clause, with some of the very first cases being against Club la Costa with others such as Diamond following suit.

Once again it is an attempt to bypass Spanish Law by claiming the contracts fall under the jurisdiction of UK law and UK courts, which in the beginning they did succeed in doing. But through the tenacity of various lawyers who argued that consumers were entitled to the full protection of Spanish Law and that timeshare operators cannot decide which jurisdiction their contracts come under. By doing so they are taking away all the rights a consumer has.

The latest case involves Diamond Resorts (Europe) Ltd, a UK registered company which was operating sales of timeshare in Spain. Their contract stipulated that it was subject to “the jurisdiction of UK law and UK Courts” which is blatantly taking away consumers rights.

Is their Code of Conduct worth the paper it is written on?

It should also be noted that under the RDO Code of Conduct, Part I, Chapter 3, Paragraph 3.5 actually states:

“To comply with all laws, which apply to Member’s, business in the jurisdiction in which the Member operates.”

Obviously, the use of the “jurisdiction” clause is a breach of these rules as to comply with “all laws” of the country in which the member operates must be abided by. If this isn’t a breach of RDO rules then we don’t know what is!

Palacio de Justicia Fuengirola

This particular case was heard at the Court of First Instance Number 1 of Fuengirola and the case was once again brought on behalf of an English client by Canarian Legal Alliance

As we have seen in all previous cases of this nature, the Judge immediately dismissed Diamond’s appeal on Jurisdiction, referring once again to the rulings of the High Court of Malaga. This court along with High Courts in other provinces have all consistently ruled in favour of the consumer that they (Spanish Courts) do and will have full jurisdiction on any contract sold in Spain.

In this case, the Judge ordered that Diamond repay the client 17,572€ plus legal interest and the return of all legal costs. The client will also receive a further 8,513€ in respect of original purchases and a further 9,059€ which is double the deposit taken illegally on the day.

The contract has also been declared null and void leaving the client timeshare and maintenance-free.

The case was prepared and presented by the CLA Lead Lawyer Eva Gutierrez with the client being assisted by Claims Consultant Jake Kaiser.

Once again we see the court’s ruling in favour of consumers and declaring contracts illegal, as we have said before, it is a problem of their own making, after all, the laws were enacted in January 1999 yet they continued to sell as they had done before believing they knew better. But now they are finding that was a very expensive assumption to make.

If you would like to know more and see if you have an illegal contract and what your legal rights are, please use our contact page and Inside Timeshare will get back to you.