Last week we had a brief look at Timeshare Claims & Exits and what important points to look for when trying to decide which option and company to use which in itself is a veritable minefield. Trying to sort the chaff from the wheat with all the information, promises and half-truths are very confusing, each cold caller or any company you contacted will verify some points you have been told but at the same time make it look like you have been told porkies by the others. It is marketing, after all, and it is your money they are after.
Today we have a look at the ins and outs of taking your timeshare case through the Spanish legal system using a reputable Spanish lawyer or law firm and how you decide who to use. Again this is a minefield, but it is actually easier to find a genuine and experienced lawyer or law firm than it is with the myriad of “claims & exit” companies. These are cases in the public arena so are all verifiable along with the credentials of the lawyers and their experience in this field, but first, we have a look at whether you have a valid and viable claim.
Spanish Timeshare Law, known as Ley 42/98 (updated by 4/2012) was a result of various EU Directives on the sale of timeshare in Europe and unifying consumer protection. There was a very good reason for this, most purchasers of timeshare were doing so outside of their own country, with varying degrees of consumer protection laws. Spain, being one of the biggest areas in the development of timeshare resorts, took on board the EU Directives and also strengthened them when they developed and enacted them into their own domestic laws.
These came into force on 5 January 1999, any sale and contract after this date was compelled to follow them to the letter. Unfortunately, this was not to be the case as we have subsequently seen.
Timeshare sales continued as before, with complete disregard for the new laws in place. To be fair, the actual salesman who “toured you” probably didn’t even know about the new laws. The blame lies with the senior company management, they obviously believed they were above the law and these laws didn’t apply to them. This all changed around 2010.
To cut a long story short as they say, the first major timeshare cases were filed with the courts using Ley 42/98. These were fairly long-running battles as the laws themselves were really untested in the courts, this is something not unique to timeshare, any new laws need to be tested in the courts, this is where they are clarified or to use the correct term placed into jurisprudence.
These were the first cases to be heard by Spain’s Supreme Court, rulings which were to change the timeshare industry in Spain and bring about a flood of litigation. The rest as they say is history.
The basics used to determine if you have a contract that falls within these laws are:
The contract is for an indeterminate period, the law states the contract for a timeshare must be a minimum of three years and a maximum of 50 years. We all know sales continued with perpetuity or no end date.
The second is the timeshare should consist of fixed and identifiable weeks and a fixed identifiable and allocated apartment. Points and fixed week systems do not fulfill this criterion and are therefore illegal.
The third point is the taking of any deposit or payment within the statutory cooling off period. We have seen this continue in one form or another but this was also covered in the law, no payment even to a third party.
The first two are grounds not just to have all payments returned but also to have the contract declared null and void. The taking of any payment during the statutory cooling off period will tend to only have the money returned but the contract remains, again this is a point for lawyers to determine.
So you have the basics for a case, at present, it is valid, once the case is prepared other points of timeshare law may be uncovered along with infringements of consumer & mercantile law. But is it viable?
There are many reasons for a case not to be viable, the most obvious is the cost involved, legal fees are required to be paid to bring the case, is it worth bringing a case where the legal fees are only just under what your claim will be?
Is the entity named on the contract still in business, as it is this company that will be taken to court?
We have also seen recently several timeshare sales companies file for liquidation and are placed under a court-appointed administrator. This has created a very disturbing pitch, “urgency”, the pressure to sign now for a case or lose everything. Yes, you may have a case, but the administrator will be looking at priority creditors and your timeshare case may not even qualify. You win but get nothing. The major lawyers and law firms in this field began to reject new cases where this has happened, it has also caused delays and complications for those with cases already in court or with judgements, events that are out of the lawyer’s hands.
These are just three points for consideration, we then have the lawyers or law firm who will prepare and conduct your case. There are many questions which you need to consider here, the most important are the lawyers themselves. Are they genuine, competent and have experience in this field of law?
Since the First Supreme Court rulings in 2015, there have now been 130 in respect of timeshare law, it also opened the doors for less experienced lawyers to take on cases that only a few years before they wouldn’t touch with the proverbial barge pole.
Many of these were recruited by the many “dubious” firms that saw an opportunity to make a lot of money. They needed a registered lawyer for their campaign, adding legitimacy to their website. The lawyer probably had no experience with timeshare law, contracts or the industry as a whole, some took on cases independently again seeing what they thought was an easy opportunity.
In one case AIT recalls a German owner who was contacted by a marketing company on behalf of a genuine law firm in this field. He certainly had a case, but he wanted a German lawyer in Spain and not a Spanish law firm, so he found a German lawyer who was willing to take on his case. All was going well until the hearing, he lost the case, a case that he should have won.
The lawyer who had no knowledge or experience in this field told the client to stop paying his maintenance fees from the moment he took on his services. That sounds like good advice from a lawyer, stop paying, we have a case against them. Unfortunately, it was not and this was the reason he lost the case, the timeshare company counterclaimed that the client was now in breach of contract. The court agreed.
Had the client paid his maintenance until the point the case was accepted by the court (now in official dispute), this would never have happened. The client has now gone to the original law firm he turned down to sue the lawyer and appeal the case on grounds of bad legal advice.
All lawyers must be registered with their official associations, in Spain, this is the Colegio de Abogados for whichever province they practicing in. All lawyers will have a registration number, this identifies them as genuine and currently registered lawyers, also contact details and when registration was last updated.
This is the search page of Censo de Letrados, due to the way Spanish names are used and how they were originally entered, it is always easier to use the registration number.
Below are three examples of the information available, along with their profiles from their law firms websites. They are experienced lawyers with Javier Correa being an independent lawyer and one of the first in this field, Eva Gutiérrez being the senior lawyer for Canarian Legal Alliance and an expert on Anfi, and Adriana Stoyanova from M1 Legal who is heavily involved with the Azure, FCA & BPF cases.
We now move on to the cases and any documents you may have been given, once again these can be checked, but that may not be easy for some, navigating the different websites for the provinces and jurisdictions can be a nightmare. Details of the court, case numbers etc will be present along with the names of all the lawyers participating on behalf of the defendants and the clients. So with this information, you can make inquiries that the case is genuine and that the company you are speaking with did in fact bring the case.
We say this as we know “fake” law firms have doctored court documents or used other lawyers’ cases as their own. They know you are unlikely to do any of the background checks due to the “foreign element” and the difficulties you are likely to encounter and count on you not bothering.
We now move to probably the most important point of all, time scale. As with all court procedures, it is not going to be a quick fix, there is a lot of work in the preparation of the case before it even gets to court.
The first port of call is going to be the translators, all your documents such as purchase agreements, terms and conditions will need to be translated from your own language into Spanish. These must be done by qualified translators authorised for this type of work, they are legal documents, so google translate will not do.
As you can imagine this is going to be a long process and the timing is very much dependent on the workload of the translators.
Preparation of the case is also not going to be quick, the work involved in all research, finding the infractions in the contracts, identifying which laws, timeshare, consumer or mercantile will be used at trial. The lawyers will also be looking for precedents and cases from High Court judgments to the Supreme Court. All in anticipation of what the defence lawyers are going to throw at them.
Just these two could take around six to eight months to complete, then we have the courts themselves.
The case is presented to the court for acceptance and the opposition is informed, they then have the opportunity to petition the court as to why the case should not be accepted. This could be on jurisdictional issues which we have seen used to delay proceedings by Club la Costa. Eventually, the court accepts the case and a date for the pre-trial is set, this could be six months after the filing of the case and six to 12 months for the trial, depending on the court’s caseload.
After the trial, you will then have to wait for the judge to issue his ruling, the quickest we have ever known is within an hour, one of the longest was 12 months, the reason, well your guess is as good as mine.
So we now have the judgment and it is in your favour, your contract has been declared null and void and the court has made its award as to what you must be repaid. Great, until we find that the timeshare company has decided to file an appeal with the High Court, delaying the case further. In the early days, this did take a long time and then there was the appeal to the Supreme Court. Now the High Courts are acting quicker and the Supreme Court is rejecting further timeshare cases and laws on which it has already made judgements.
It is now being recognised that these constant appeals are just delaying tactics by the timeshare companies, with many judges increasing the amounts awarded substantially to make the point. Many of these cases have been in the process for three years, some more, it has infuriated clients, their lawyers and above all the courts, so if you are promised the “quick fix”, you now know this is all baloney.
These are all pointers in helping you to make the right choice, unlike when you purchased your timeshare, you have time to think, research and decide on your course of action. It is up to you to make the right decision for your situation, but this must be based on the facts and not “marketing”.
The information is out there, it just takes time and a lot of searching to get it and remember above all else, you are employing them, they represent you and your interests, choose wisely.
On 11 March AIT published Club Exploria vs Aaronson Law Firm: US Court of Appeals, 11th Circuit, we have received the news that the Court of Appeals 11th Circuit has issued their opinion denying Explorias request for a retrial. Irene is working on further details and we hope to have something for publication later in the week.
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That is all for today, we hope you all had a great weekend, Baby Dog decided he didn’t want to go for a walk on Sunday morning because it was raining.