Welcome to the end of another week with Inside Timeshare, this week began with the article A Little Known Name but Integral to Silverpoint. It is a name that has appeared over the years but was hidden in the shadows, attention was very much on others. The full story of Diana Aitchison and her involvement is only just beginning to surface.
On Tuesday we published yet another warning on the FAKE law firm from Tenerife stealing the good name and website of a rather prominent and respected lawyer from Madrid. The story of this FAKE law firm has been a regular feature over the years, highlighting the many changes of name, but, their recent use of genuine law firms names and websites has taken it to a whole new level of fraud.
The article on Wednesday was really prompted by the many emails received with questions about claims. Our readers were somewhat confused at what they were being told, one response to the article was just what we expected. One former Anfi owner was told he had a claim, it didn’t matter that he had not paid maintenance or received bills since 2006, with no contact whatsoever. He still had a case as the contract was illegal, to get a case in court it would cost £5000+ for legal fees. Our reader, we are glad to say, didn’t fall for that one.
There was no article on Thursday as it had to be shelved due to a legal settlement, all I can say is that it was mutually beneficial to both parties. Although it would be nice to publish a “good news” story, we respect the wishes for no publicity.
We now end the week with some news from the courts, yes, you have guessed it, Anfi once again takes a prominent part. But first, we begin with Silverpoint.
This is one company that is going to be in the news for quite some time, for one Norwegian client their battle with Silverpoint has moved a step closer to completion. The Court of First Instance of Arona has declared their contract null & void, which was to be expected considering the fraudulent nature of the Silverpoint products.
The Judge also ordered the client to receive 257,552€ plus legal interest and legal costs. This award included the payment of double the amounts taken illegally during the statutory cooling-off period.
Due to the liquidation process of Silverpoint, the clients lawyers will now be making legal representation to the Mercantile Court in order to secure the amount for the client. This is the first stage to becoming a “Confirmed Creditor”, now considering the amount to be repaid has been ordered by the court, I would have thought this was now just a formality.
Moving from Tenerife to Gran Canaria, more specifically, Anfi and their constant appearances in the courts.
There was one result from the High Court this week, again it was due to another frivolous appeal by Anfi. I know this gets a bit boring, but the Judges at the High Court once again “DISMISSED” the Anfi appeal.
In their ruling they endorsed the original sentence of the Court of First Instance 100%, as we have stated before, this is all in accordance with Spanish Law and the rulings of the Supreme Court.
The client’s contract was declared null & void with the return of 54,749€ plus legal interest and legal costs.
At the Court of First Instance Number 4 of San Bartolome de Tirajana, an English client had their contract with Anfi declared null & void, along with the return of 22,055€ plus legal interest and legal costs.
Usually, we would say that we expect Anfi to appeal, but, due to recent events and the ordering of “necessary liquidation” by the Mercantile Court, we wonder if they can appeal?
Another case involving German clients was also heard at the Court of First Instance of SBT, this time Court Number 1. Again the judge in accordance with Spanish Law declared the Anfi contract null & void, also ordering the repayment of 54,749€ including interest and costs.
The same question as above also applies to this case, but the lawyers from Canarian Legal Alliance who represented the clients will be ensuring that these cases and awards are filed with the Mercantile Court.
If you would like more information on any article published or just have a comment, please use our contact page or leave a comment on the appropriate article.
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.
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.
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.
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.
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.
We started this week with the article, Timeshare How it Has Changed and What is the Future? It seems it has caused some debate among our cousins across The Great Lake, one comment that did stand out on one platform was very surprising, in the past they extolled the virtue of points, now it is an about-face. Let’s hope the industry takes a close look at their product and sales techniques before it is too late. On Wednesday, we published Silverpoint: News from The Mercantile Court. It was our attempt to explain the situation without using too much “legal jargon”, from responses so far it seems to have succeeded. Well, it is a very complex subject, certainly worthy of a Hollywood Blockbuster. Yesterday, Timeshare: The Road to Being Scammed was a look at how the purchase of a timeshare began a series of scams against consumers. It was based on the many emails we have received over the years. We end this week with news of two more cases from the Spanish courts.
The first case, and no prizes for guessing who it is and what court, to be honest, these have become so boring, yes it is Anfi again!
The Court of First Instance in SBT originally declared the clients contract null & void, plus the return of the full purchase price of 8,435€ also adding a further 11,098 for illegally taking payment as a deposit within the statutory cooling-off period. Legal Interest and Legal Costs were also awarded.
Now, this is where we start getting bored. Anfi in their hair-brained scheme of things did what they always do, waste more of the courts time, plus all the costs involved, (we still wonder if the member’s annual fees are paying for all this), APPEALED!
The High Court Number 3 of Las Palmas, was once again tasked with dealing with this frivolous appeal from Anfi, they must be getting as bored as we are!
I think the answer to that question is in the court’s ruling, once again, the Judges dismissed the appeal and confirmed the original sentence.
In fact, the Judges agreed 100% with the sentence of the Court of First Instance, as they always do, and another result for the lawyers of Canarian Legal Alliance. They will now begin to proceed with the recovery of these funds through the Mercantile Court due to recent events.
The English client was represented by CLA Lawyer Eva Gutierrez and Cristina Batista, Claims Consultant Jake Kaiser liaised with the lawyers on behalf of the client.
We now travel around 1,400 km to the Court of First Instance Number 3 of Marbella, where the Judge presided over a case against Marriott, with MCVI Management and MCVI Holidays in the dock.
Following the letter of the law set down by the Supreme Court, commonly known as jurisprudence, lovely word that, sounds better in Spanish; jurisprudencia, and declared the contract null & void. Marriott was also ordered to repay over 26,300€ plus legal Interest.
The main point of the case was the contract exceeded the 50 years maximum allowed by Spanish Timeshare Law 42/98 & 4/12, being an unlimited duration contract with no end date.
We now wait to see if Marriott continues to be quick off the mark and pay the due sums into the court as they have been doing recently. Can’t help saying this, but, Anfi, take a leaf out of their book!
The German client was represented by Canarian Legal Alliance Lawyers Christine Ihmann and Eva Gutierrez, with German Claims Consultant Evi Richter working with the client through the process.
That’s all for this week, we hope you have found the articles informative and also enjoyable, at the moment there is nothing specific planned for next week, a few things in the pipeline but sometimes something catches my eye over the weekend.
Join us again next week and remember, if you have any comments or questions relating to the published article or you would like more information on the legality of your contracts, please use our contact page and Inside Timeshare will get back to you.