Archives for Legal Action

Landsbanki Wins Spanish Court Case: A Useful Defeat

9th September 2013 by admin under Legal Action     

 

It has been discovered, with some distress we may add, that the much flaunted Court victory of a Landsbanki victim in 2011 had more to it than met the eye for, whilst the victim won a ruling in the First Instance declaring the mortgage loan and the investment contract void, the ruling was subsequently revoked entirely, on appeal, by the Málaga Appeal Court (ruling dated 18th February 2013).

In principle, not good news for pessimists but being practical, one can extract in interesting conclusions on how should a new claim be filed, what laws be invoked, the extreme importance of supporting evidence or even, the situation with Landsbanki’s bankruptcy. Below is a very sketchy summary of the case (a more comprehensive resume will follow):

 

–          OMM was sued together with Landsbanki, but Lef Life was left out (even if their contract was attacked by the claimant’s legal representation). 

–          The claim was based heavily on mis-selling within a financial investment contract, as opposed to an Equity Release contract or even a mortgage loan but then, the party to the financial product -a Unit Linked Life Insurance Policy- was not sued jointly. 

–          Mentions were made to IHT benefits but apparently so, no evidence that this constituted fraud or, at the very least, not proven. The Court of Appeal in fact admits that the substance or essence of the contract is actually Tax Mitigation, and that there is no error there (!!!). More so, the Appeal Court does even go to name product, Spanish Inheritance Tax Reduction Arrangement (SITRA).

–          The claim confused the mortgage loan contract with the investment portfolio contract, and it was not proven they were one single overall agreement with several contracts in it: the Malaga Appeal Court outlined this.

–          The claim invoked the 47/2007 Securities Markets Act when it was not applicable at the time of the claimants signing their ER contract.

–          The Appeal Court noted that there was a general lack of evidence in support of the claim, in particular to do with failing to prove that either defendant guaranteed the improbable fact that the investment yield would suffice to cover the mortgage repayments as well as, 

On a side note, we must add that OMM came out victorious for 2 reasons: a) they were deemed as business introducers, nothing more and b) even if they were selling financial products, the Court found that life insurance unit-linked contracts were within their remit, considering they did have an insurance brokerage license.

The upside is that the Court of First Instance did find both defendants guilty of mis-selling which should make Landsbanki wonder what would happen if, for instance, a new claim was filed against them addressing all the above shortcomings/incorrections, as they were highlighted by the Appeal Court, in particular the position of the Spanish Tax Office.

In our opinion, the case should be revisited and the Court of Appeal shown that they have just endorsed, unknowingly, a tax evasion product…

 

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Following an ERVA posting, Jyske Bank Gibraltar is Slammed By Spanish Press

2nd September 2013 by admin under Legal Action     

The most influential Spanish online news site, El Confidencial has written a damning article about the dubious practices of Jyske Bank Gibraltar, in Spain.

The piece, clearly inspired -and acknowledged twice- by a post published on ERVA, questions the activities of Jyske Bank Gibraltar in Spain and reminds that the bank was recently fined 1,7 million Euros for refusing to disclose sensitive information demanded by Spanish authorities pursuant to  anti-money laundering legislation.

The article considers Jyske Bank to be “suspicious” of acting in breach of Spanish tax and anti-money laundering provisions, just what Switzerland was accused of doing for years, but on a worldwide basis (only to finally budge under very serious pressure from the U.S.).

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Bankia Employee Had No Knowledge of What He Sold

24th June 2013 by admin under Legal Action     

An employee of a Bankia bank branch has confirmed to the Judge that he had no understanding of the financial product he was selling to a pensioner. What he did tell his client though was that Bankia would soon be topping the lists of the most important banks in Spain: as it happened, it went bust and was bailed out.

Pernille Bering, pictured below, was responsible of signing off the largest ever Equity Release tax-evading product to a Spanish property owner (circa €3 mm) when she worked for Finansbanken. Unlike the Bankia simpleton above, we resist cynicism and continue to believe that she was just not a pretty face sent overseas to charge unencumbered homes owned by pensioners with huge mortgages, but a discernibly intelligent person with a conscience.

Pernille Bering

 

But Pernille let everyone down: desperate to get ahead in her carreer but unwilling to get her hands dirty, she employed a locally based housewife, Maria Tremurici-Falter, to sell to unwarned Costa del Sol pensioners millions of Euros worth of Finansbanken Strategic Asset Allocation Revolving Credit Agreements to purchase investment grade bonds (with a rating not lower than BBB- By Standard & Poor), with a special taste for participations or constributions in non-leveraged hedge funds.

Busy with appointments with her local beauty salon to have her toenails done, Maria could still spare some time to loyally fulfil the Finansbanken Equity Release Sales Programme that consisted on the following:

– Maria would advertise on locals papers on a miraculous way to avoid the horrific consequences of Spanish IHT (thankfully, we now know that the correct word is evade).

– María would explain to panic-stricken pensioners that, with her recipe, they would be alright.

– Pernille would review potential customers’ income documentation (provided she could find any that is) and, the day before signing millions of Euros worth of fraudulent Strategic Asset Allocation at the Notary Office, she would fly down from Denmark for a quick afternoon sum-up meeting with the client at the NH Hotel, or Guadalpin, meetings that generally lasted 45 minutes.

– Next morning, execution-day, the client would be led to the Notary Office to crystalize the fraud.

It is believed that Finansbanken, later called SparLolland and later taken over by Jyske Bank, sold a total of 20 million worth of Equity Release in Spain.

 

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Malaga Appeal Court Orders Danske to Pay Legal Costs

20th June 2013 by admin under Legal Action     

As a result of the decision taken by 3 Magistrates of the Malaga Appeal Court to reject an appeal lodged by Danske Bank International S.A., the lender has been ordered to pay costs.

Danske Bank lawyers were insistent that their representatives were not summoned to Court. Both the Court of First of Instance and the Malaga Appeal Court thought otherwise.

It will now be interesting to find out where did Danske Bank get the brilliant idea of offering mortgages on Spanish property to artificially reduce its value for tax purposes because KPMG says they did not.

Can Klaus “Mønster” Pedersen please shed some light on this conundrum?

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Malaga Appeal Court Rejects Appeal by Danske Bank

17th June 2013 by admin under Legal Action     

The Malaga Appeal Court has rejected a motion filed by Danske Bank lawyers attempting to revoke a decision by the Court of First Instance in Fuengirola that had ordered, some months back, to summon the Danish lender’s managers in their capacity as representatives of the “civilly responsible” party.

The importance of the decision lies with the position of the State Prosecutor Office for, whilst initially they had pressed for the whole Equity Release case to be dismissed (and so had the Fuengirola Judge), in respect to the above appeal their stance can be said to have taken a U-turn when they specifically opposed such appeal.

The bank’s representatives will now have to respond to the questions of the lawyers acting for the Equity Release victim E.A. such as, for example, why did they use the name of K.P.M.G. to convince customers to sign up for the Danske Bank Luxembourg Unit Link/Capital Assurance product when the consultancy mega-firm had never given their blessing to this tax evasion product.

 

 

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Rothschild Claim Sent to Court “Procurator”

11th June 2013 by admin under Legal Action     

The claim for Rothschild has been sent to the Procurator (last Friday) for formal lodging with the Malaga Mercantile Courts.

Missing documents pertaining to claimants (Powers of Attorney or Mortgage Deeds) can be added in the next few days.

On receipt of the stamped copy, we will be post the contents (except for personal data) on this website.

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The “Audiencia Nacional” Charges Branch Manager for Fraud

6th June 2013 by admin under Legal Action     

For the first time, the National Audience has charged a branch manager criminally for mis-selling banking products.

This is a very near miss for the Nordea Bank S.A. boys whose case was thrown out of Court by the same Judge, Fernando Andreu, because he considered that there was not enough evidence to consider that there was a pre-conceived plan, by Nordea Bank, to cheat customers.

In this other case, the Bankia branch manager of a town in the Alicante area (Alberic) was reluctantly indicted by Fernando Andreu because his superiors in the same Tribunal ordered him to include, as part of a more extensive criminal investigation carried out against the CEOs of this bank, the end users who had been scammed into buying “preferential shares”.

After this gentle kick in the backside, the Magistrate has just requested the bank to provide a copy of the informative prospectus and the promotional literature.

Now that the Magistrate seems “convinced”, would he not want to see a copy of the promotional literature as offered by Nordea Bank Luxembourg S.A., from Luxembourg of course, that devises, encourages, promotes and sells tax evasion products specifically designed to cheat the Spanish Tax system (and which was reported), as well as its customers?

Jesper, we think it’s about time that you report your own bank for tax fraud, before it’s too late…

If you cannot find originals and copies of your own brochures don’t worry, we have plenty.

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Spanish Taxman Warns Again: Equity Release to Mitigate IHT is Tax Fraud

4th June 2013 by admin under Legal Action     

Spanish Tax Office is insistent: customers are exposed to tax fraud if equity release mortgages are deducted from the estate calculation

Tax Office on Equity Release Binding Enquiry (click on image to download PDF)

But then Steve Dewsnip, from Rothschild, used to say the following:

“At Rothschild we are insistent that customers are not exposed to unexpected risks…”

And we now say: Steve, yes they are, so much so that only in respect of the tax matter, where the amount defrauded exceeds €120,000 per annum, there are jail terms ready to be handed down (Alhaurin penitentiary opening its doors to trusting clients?). Not to mention of course other risks that the product had to offer, in spite of Rothschild’s ultra-cautious approach: legal risk, currency risk, investment risk and not the least, health risk.

Barclays’ Senior Client Relations Advisor had stated in a letter published in an earlier post the following:

“We reviewed the ruling to which you refer and note that it relates to Spanish wealth tax only and does not deal with inheritance tax at all. Therefore, whatever conclusions in that ruling, they are not relevant to the issue of inheritance tax…The Bank satisfied itself that the scheme is not illegal.”

 

Two things on this:

  1. The scheme is not illegal per se, what is illegal is the sale of the scheme as a way to mitigate taxes and the pursuit of a tax benefit, as Barclays did, among other misrepresentations (such as it being a fantastic product for pensioners because it would provide an additional income stream to their retirement income etc.).
  2. The Tax Office has taken exception to the letter by Barclays and has specifically addressed the Inheritance Tax mitigation matter, rendering it openly as “Tax Fraud”. This means that Barclays is, prima facie, guilty of devising, promoting, endorsing and selling a product that is Tax Fraud.

And if the above holds water -which it clearly does- by extension all other schemes promoted by many other banks are illegal.

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Explanation of the Rothschild CreditSelect Series 4

3rd June 2013 by admin under Legal Action     

This email is a summary of the virtues of the Rothschild according to Stephen Dewsnip. The email, for obvious reasons, left out the “downsides” of this unconventional mortgage, a mortgage that according to him allowed the borrower to not be exposed to unnecessary risks..

 

 

From: Dewsnip, Stephen
Sent: 08 November 2006 09:16
To: ”
Subject: RE: Mtgs.
Importance: High

Thank you for your enquiry regarding Rothschild’s Spanish mortgage service, CreditSelect Series 4, and I am now pleased to provide further information for you.

CreditSelect Series 4 is neither complicated nor expensive, and has been designed to enable you to make the funds invested in your Spanish property work harder for you.  It is not a conventional mortgage facility but rather a financial planning tool that creates liquidity for you by providing a loan for investment purposes.  It provides an initial ‘cash-back’ facility, the prospect of an annual income stream, the opportunity to diversify between asset classes, the prospect of long term capital growth through a diversified investment portfolio and, depending on your personal circumstances, tax planning opportunities.  Most importantly, as far as we are concerned, the investments acceptable to us each have a 100% capital guarantee from highly rated, large European banks at the end of 10 years.

CreditSelect Series 4 is available to both residents, whose who live in Spain for longer than 183 days per annum, and non-residents and in keeping with Rothschild’s cautious and conservative approach has been designed to ensure that you are not exposed to unnecessary risks which, when considering that the product involves registering a mortgage over your Spanish home, we regard to be crucially important.  There are no upper age limit restrictions or documentary proof of income required, although we do consider income and asset levels as part of our underwriting process.  It is available where a property is owned by a company, as well as by individuals, and all paperwork and documentation is streamlined and standardised to make the application and completion process as smooth as possible.

In simple terms, it works by arranging a loan secured by a mortgage over your Spanish home with the loan proceeds being invested in a 100% capital guaranteed investment fund that matures after 10 years.  Since the investment fund does not actually pay income throughout its 10 year period, we are happy for interest on the loan to roll-up and at the end of this period, the principal loan amount (ie. excluding any initial cash-back, rolled-up interest, capitalised fees and annual loan drawdowns that we permit to provide an ‘income’ stream) is repaid from the maturing investment.  Of course, the investment funds are designed to return greater sums that the minimum guarantees and the aim is that the maturing investment fund will exceed the total loan balance, including all of the items listed above.  As Rothschild is neither an investment nor tax adviser in this regard, we distribute the product via a network of financial advisers based predominantly in Spain and, should you wish, I would be pleased to provide you with a list of such advisers, with whom we are comfortable in dealing, in order that you can make direct contact.

Like your Spanish property, CreditSelect Series 4 loans are denominated in Euros, as is the investment, thus ensuring that you are not exposed to any unnecessary exchange rate risks.  We lend up to 75% of the property’s current market value which, from the point of view of Spanish inheritance tax planning (something that, regrettably, is often overlooked by not only purchasers but also estate agents, property developers, and even Spanish lawyers and notaries), is considered to be adequate given the tax rate tapering effect, valuation methods acceptable to the Spanish authorities, and the interest roll-up feature of our facility.  Our loans start from €200,000 with effectively no upper maximum, meaning that the product is available to owners of residential property valued at €270,000 or more.

With a CreditSelect Series 4 mortgage, you can take up to 5% of the property’s market value as initial capital or equity release and each year we compare how the investment fund has performed over the previous 12 months to the interest rate charged on the loan and permit an additional loan drawdown representing the surplus investment return, capped at 3% of the investment fund value.  Since this is structured as a loan drawdown rather than as a withdrawal from the investment fund, it is not classified as income and hence is not liable to income tax assessment.  Depending on your personal circumstances, this may also be beneficial to you.

In summary, CreditSelect Series 4 is not designed to be the most aggressive and risky product in the marketplace, in fact quite the opposite – we aim to help our clients in a conservative, cautious and well-structured manner without exposing them to undue risk.

I am enclosing a copy of our term sheet, which sets out the facility’s terms for non-residents in more detail, together with a copy of an article I wrote earlier this year on some of the tax rules in Spain, which you may also find of interest.

I look forward to hearing from you.

Kind regards

 

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“ROTHSCHILD PRESENTS a TAILOR-MADE PRODUCT TO SUIT YOUR NEEDS” goes to COURT

31st May 2013 by admin under Legal Action     

Below is an informative letter sent to Rothschild potential claimants.

 

Dear Sir/Madam,

 

 

We hope this email finds you well.

 

 

The purpose of this email is to confirm that we will be lodging our claim against N.M. ROTHSCHILD & SONS for misleading and illicit advertising with the Courts in Malaga (Juzgados de lo Mercantil) next Friday 7th of June 2013.

 

 

We have experienced some delays due to not having documentary evidence which we consider to be relevant, as well as an unexpected Court filing fee that came into force shortly after our decision to file which meant that the case would have cost an additional 15k Euros to proceed with.

 

 

However, we can now confirm that we are now in a position to proceed as we have gathered a compelling amount of misleading advertising that constitutes the backbone of the case that is being filed with the Courts (to be posted at the ERVA -www.erva.es site over the weekend).

 

 

The referred to advertising was produced by Rothschild and also, by the IFA companies that were selected by Rothschild to sell the product. This advertising is false, untrue and encourages tax evasion by suggesting that Spanish Inheritance Taxes are so onerous that is nothing is done, inheritors of Spanish unencumbered property owners would be prevented from inheriting and the property would be lost to the Spanish State.

 

 

Other fallacious arguments include stating that the Rothschild mortgage is different from a normal mortgage, that the clients “…will not be exposed to unnecessary risks”, that the product “…is designed in such a way that it will potentially produce enough income to service the loan and also, leave a bit of money for the borrower”, that it is a “…responsible product” or “…similar to the Spanish reverse mortgage”, that Rothschild had “…restricted the availability of this product to handful of selected intermediaries” (Hamiltons and Henry Woods), that a “…Mrs. Smith (fictitious person) would have discovered following the death of her husband, to her horror, that IHT in Spain could reach 81.60% in Spain” (when the maximum liability of a spouse is limited to just over 34%) and many more.

 

 

Similarly, deliberate omission of the risks involved in the product are considered to be misleading and therefore, illicit. As an example, Rothschild deliberately concealed the consequence of the very obvious and unavoidable scenario where the investment does not cover the cost of the loan: you lose your home.

 

 

The writ includes several petitions to the Courts: that the advertising is declared illicit, that Rothschild runs at least 4 ads on the Essential Magazine rectifying the misleading publicity (at their cost) and that all contracts signed as a result of such publicity are set aside, restoring customers to their original position prior to signing of the Credit Select mortgage loan, insofar as is practicable.

 

 

Finally, we would like to stress that some IFAs are currently advising against going to Court and are recommending what is called as a “Standstill Agreement”. We would like to advise that such document is a legally useless agreement that does not deal with the fraudulent nature of the CreditSelect loan and is designed to buy time for Rothschild, who prefer to deal with the less belligerent children of their victims as they pass away. In other words, it is a cynical money-making ruse designed at the expense of perpetuating the suffering that N.M. Rothschild & Sons is inflicting on innocent property owners.

 

 

If you have not yet joined this case and you wish to, kindly reply to this email so that we can provide you with the necessary instructions.

 

 

With best regards

Sincerely

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