Archives for Legal Action

Equity Release, Publicity and Consumers Associations

7th September 2012 by admin under Legal Action     

It is now clear that all banks offered the Equity Release products as a way to reduce or eliminate Inheritance Taxes. They used, for that purpose, all manner of publicity, promotional literature, fliers, ads etc.

It now appears that this is not true, and yet banks say that even if they did make those assertions, the contracts said something different and as such, they would not be held liable. It transpires now that the law will allow Equity Release victims to demand that Inheritance Tax breaks do actually happen, pursuant to the old Consumers Association Act (valid till November 2007).

Shall they therefore be entitled to ask the Government to change the laws? Or rather, just ask the Judge to bin these scam contracts due to its fraudulent nature?

Article 8 stated the following:

Article 8

The offer, promotion or publicity of products, activities or services, will adjust to its nature, characteristics, conditions, utility or finality, without prejudice to what is established in the laws pertaining to publicity and in accordance to the principe of conformity with the contract regulated in its specific regulation.

Its content, the specific characteristics of each service or product and the conditions and guarantees offered, will be demandable by users and consumers, even where not expressly specified in the contract or in the document or receipt received.

Notwithstading the above, if the contract had more beneficial terms and conditions, these will prevail over the content of the offer, promotion or publicity.

The offer, promotion of false publicity of products, activities and services will be persecuted and fined as fraud. The Consumers Association will be authorized to initiate and intervene in the procedures legally established to ensure the banks cease to do so.

 

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Sparekassen Lolland and “Strategic Asset Allocation”

28th August 2012 by admin under Legal Action     

Strategic Asset Allocation was the pompous description coined by FINANSBANKEN A/S, taken over by Sparekassen Lolloland, to encapsulate a deceitful equity release product.

The sale of this financial sham was entrusted to a lady called Maria Tremurici-Falter, a Marbella socialite that does anything from complex financial products to charity expensive dinners or “knowing people”, and Michael (Mitch) Weisz, a mortgage broker who we cannot trace. They were both given a nice kick back of 1% of the value of the contract (at a minimum contract value of €1,000,000, not a bad day’s work!).

The below points give an idea of the monstrous set up Sparekassen Lolland came up with:

  • Sold to unsophisticated foreign pensioners mostly that had no need to prove an income to qualify.
  • Used the services of Costa financial pirates to market and sell the product.
  • Offered the generosity of 1,5 hours of advice at the Guadalpin Hotel, by Danish-based staff who flew in the day before closing; the contracts being all ready to be signed off at the local Notary office.
  • Used the services of valuers that were not regulated by the Bank of Spain, in spite of which they declared, on a public deed, that “…the valuers used are fully regulated by the Spanish authorities to carry out valuations for the lending market”.
  • Flouted the laws applicable to investment products: lack of compliance with regulations pertaining to obligatory registration of prospectuses, informative triptych and contract with the CNMV.
  • Indicated that 8% return was not an unreasonable return…when the product was taken out.
  • And of course, were cleverer than the rest of Spanish banks by offering an “original” tax-dodging financial product that would alleviate the burden of horrible Spanish Inheritance Taxes.

Article 27 of the Unfair Competition Act (Ley 3/1991 de Competencia Desleal) states that:

 “…practices that convey inexact or false information in respect of the nature or size of the danger that a user or consumer or his/her family would be faced with, should he not take out the service or product, are equally deceitful, and will be deemed illicit”

Is this not what all these banks came up with?

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Former Rothschild Lawyer Failed to Spot Fraudulent Valuation

19th July 2012 by admin under Legal Action     

Rothschild should have known a thing or two about mortgaging properties, one would have thought. And presumably one would have thought that, had Mr. Steven Dewsnip been in doubt as to the legality of his spurious Equity Release Scheme, sold as SPAIRS by a close collaborator (Henry Woods, illegal Costa financial operator), sound legal advice could have been easily accessed by the endless pot enjoyed by the Rothschild family.

And so they did, choosing the sixth Spanish firm by revenue, Gomez-Acebo & Pombo.

Interestingly though, the lawyer acting for the above firm (PDF), Mr. Luis Sánchez Pérez, failed to spot one very serious breach of Spanish Banking Laws incurred in by Rothschild: the document used to assess the value of the property (PDF) was not legal, since it was drawn up by a company not authorized by the Bank of Spain, under no circumstance, to produce valuations for mortgage purposes, in Spain.

His shortsightedness has only recently been exposed, after the ERVA closely inspected all documents delivered by victims of this sham, but far from trying to cover up he chose to indulge in publishing self-aggrandizement articles (PDF) that, coincidentally, talks about the…Spanish Equity Release.

This is what he says:

 “world globalization allowed the reverse mortgage to be introduced in Spain, particularly with the first contigent of British expat that settled in the Spanish coasts…”

 “the majority of the population that chose warmer climates have come to Spain to spend the best years of their lives, albeit with limited financial resources that are obvious in people who live off pensions and that, additionally, have seen the value of these dwindling as a result of the unfavourable exchange rates…”

“In situations where there is a lack of liquidity, a good option is the reverse mortgage…”.

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Court in Fuengirola Agrees to Carry Out All Investigation Measures in Danske Bank Criminal Case

26th June 2012 by admin under Legal Action     

In spite of dismissing the case shortly after it had been submitted, Fuengirola Court of First Instance has now agreed to implement a number of fact-finding requests on behalf of Euan Armstrong, as petitioned by his lawyers, after the initial dismissal was appealed successfully at the Malaga Appeal Court.

According to the decision of the Appeal Court, the dismissal of the criminal case against Danske Bank was found to be contrary to law because it was redacted in a laconic format incompatible with the Constitutional Tribunal doctrine and did not deal with the matters raised.

The Court of First Instance has now agreed to the following requests petitioned by EUAN ARMSTRONG’s Counsel:

  1. Summons ordering the following individuals to appear in Court to give a judicial statement: Mr. Peter Staarup, Mr. John Lundskov Larsen, Mr. Morten Runo Waaben, Mr. Henrik Hjerrild Hansen.
  2. Summons ordering the legal representative of DANSKE BANK INTERNATIONAL S.A. to appear in Court to give a judicial statement, on account of its potential responsibility for payment of damages.
  3. Summons ordering LCV, agent involved in the sale of Equity Release, to appear in Court to give a judicial statement, on account of its potential responsibility for payment of damages.
  4. Order to DANSKE BANK SPAIN and DANSKE BANK INTERNATIONAL to disclose the following:
    • Type of relationship, employment or other, between DANSKE BANK and LCV.
    • If LCV was authorized by DANSKE BANK as a financial advisor, or commercial agent, and if so the type or nature of products sold on behalf of DANSKE BANK.
    • Remunerations during the period of relationship, whether in the form of commissions or benefits in kind, that may have been given by DANSKE BANK to LCV, through the network of offices in Spain.
    • Number of DANSKE BANK CAPITAL ASSURANCE policies or contracts signed in Spain, with reference to the age and profession of the clients of this product.
    • Destination given to the funds given to the DANSKE BANK by EUAN ARMSTRONG, in respect of the product called “Inverse Mortgage”.
  5. Request to the Spanish Insurance Regulator (Direccion General de Seguros y Fondos de Pensiones), with a view to confirm whether a product known as DANSKE BANK CAPITAL ASSURANCE, consisting in an insurance policy sold as a financial product for the elimination or mitigation of Spanish Inheritance Tax, as well as Spanish Wealth Tax, has obtained administrative authorization to be sold to the public or, in any event, whether it is compliant with applicable legislation, specifically advising on its characteristics and if it is currently sold in Spain.
  6. Witness Summons ordering the following to appear in Court to offer testimony:
    • C.D. (Daughter of Mr. Armstrong)
    • K.A. (Daughter of Mr. Armstrong)

 

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Regulators to be Informed of Wrongdoing by Equity Release Banks

5th May 2012 by admin under Legal Action     

Lawyers acting for equity release victims are preparing claims to submit to the different regulators. The following letter has been forwarded to victims of these disgraceful banks:

It has now been 3 weeks since the gathering at the Malaga Tax Office, and we now wish to move forward by writing to the Spanish regulators to obtain a formal opinion on the specific products entered into, with a view to use it in a civil court to obtain a ruling declaring the contracts null and void. 

 

The regulators in question are the Bank of Spain, the CNMV (Comisión Nacional del Mercado de Valores, Financial regulator) and the DGS (Dirección General de Seguros, Insurance regulator), in their respective areas of jurisdiction, since the equity release product is a complex contract (mortgage loan and investment product) that involves activities that fall within the Banks of Spain and the CNMV/DGS remit. 

 

Crucially, the advertising campaign based on tax advantages devised and put into operation by these entities is, without a doubt, the most serious of the breaches, as not only does it promote tax evasion but also, it is based on a false assumption: that you can mortgage your home to minimize certain taxes. 

 

Additionally, we will request an opinion on the following regulatory breaches and their implications: 

 

  1. The sale of a complex financial investment product that would have required prior acceptance by the CNMV and the DGS, particularly where the proceeds of the investment were not available but created by means of a mortgage loan.
  2. The extensive use of financial advertising that creates a feeling of “no risk”, projecting messages of calmness, safety and tranquility. This includes even pictures of happy pensioners. Also, failing to indicate the risk in a clear, concrete, simple, transparent and honourable manner. 
  3. The offering of both a mortgage loan and an investment product to pensioners, owners of retirement homes with minimal income (this is what is called as “adequacy” of the product to the risk profile of the client).
  4. The sale of these products through a network of unregulated unregistered advisors.

It is important to note that the Spanish regulators don’t necessarily know that the above have taken place, unless they are told. In the UK, the regulator (FSA) Consumer Director says in their website:

 

“If you spot something you think is misleading, we’d like to hear from you. Don’t assume that we’ve already seen it as it is impossible for us to monitor all the adverts and marketing material that is produced. Your feedback will help us protect you.”

 

As indicated, the aim of this action is to obtain a pronouncement by the regulators where it is established that the financial entities breached substantial regulations and principles, and deceived and confounded their customers. A further aim will be to pursue an enforcement and disciplinary action that could lead to a fine, public censure or, in the most serious cases, cancellation of the firm’s authorization. Once in possession of this report, that is to be based on each individual equity release contract, we will file an action to attempt to void the contracts in the Civil Courts.

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Monday the 9th of April Gathering in Malaga

7th April 2012 by admin under Legal Action     

As many of you already know, the ERVA has organized a gathering at the Malaga Tax Office (Avenida de Andalucía number 2, next to El Corte Inglés), Monday the 9th of April 11.30 a.m. (if wish to arrive earlier we will meet in front of El Corte Inglés at 11 a.m.), with the purpose of submitting a tax “denuncia” against the Equity Release banks.

The main aim of this action is to make the Spanish Tax Authorities aware that their Danish counterpart, the Danish Tax Authority (SKAT), as well as the Danish Ministry of Taxation, have already labeled these schemes as fraudulent and started an investigation.

The form below should ideally be printed and filled out by hand, in block capitals, so that it has a more personal touch than a form that only has an original signature. The denunciations will be grouped and Lawbird will attach relevant contractual and marketing documentation we already have, classified by banks.

If you are not able to print and fill out don’t worry, we will take forms that can be filled out there and then.

We will require from you, if at all possible, a copy of the mortgage loan signed with the denounced bank. Failing this, a copy of a “nota simple” showing the mortgage loan registered against it. If you are not able to obtain this, so long as the property details are recorded on the form, we will proceed with filing, and at a later date we will submit the paperwork that is missing.

Also, please bring your passport and a copy.

We expect the Tax office to start an investigation into the activities of the banks because of the fraudulent nature of the proposal, and the loss of revenue as a result. We must not forget that it is almost certain that the tax evasion element of such products has already materialized in some cases, if we consider that hundreds of owners would have been deceived into signing up these products and a few, sadly, are likely to have passed away, some probably due to the enormous stress caused by the actions of the thieving banks.

Please note that this is an important gathering: from the point of the claimant, it is the start of the civil action against the bank in question since obtaining an opinion from the Tax Office is crucial in destroying the validity of the contracts, and from the point of view of the bank, it is the formal communication to the Tax Office of an ill-conceived scheme devised in conjunction with unethical unregistered IFAs, that openly invited customers to violate fiscal laws in Spain (and elsewhere too).

Should there be any change between now and Monday, we will advise by email and also, by publication on the ERVA forum. Any queries will also be responded by emailing myself (or calling the mobile 656 967672), Euan Armstrong (euan@sunnyspain.org) or Ian Sherdley (sherdleys@hotmail.com).

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ERVA Discusses the Legalities of the Denunciation to be Lodged at the Tax Office on 9-4-2012 (Video)

31st March 2012 by admin under Legal Action     

Tax Office Building in Malaga

Euan Armstrong and Antonio Flores discuss the denunciation to be lodged with the Spanish Hacienda, that is to be held on the 9th of April 2012, at 12.00 am, in the Delegacion de la A.E.A.T. de Málaga (map). Claimants will gather outside at 11.30 a.m. for a peaceful protest and it is expected that the different press will cover the action.

The denunciation consist of a writ to the Tax Office informing them that the denounced bank(s), with a view to capture new clients, offered a product that supposedly would mitigate the impact of Inheritance and Wealth Taxes when, as it has turned out, actually consisted on a tax fraud proposition for such taxes could have never been avoided.

The writ will be standardized and denouncers will just have to fill out their personal details, the bank involved and the date of signing of the mortgage deed. We will load the denunciation on this website on the following days. Denouncers will be able to fill out the form at home, and bring it to the meeting, or fill it out on day and have it signed.

The only document that will be required is a copy of the mortgage deeds, or escritura de préstamo hipotecario. This can be sent to either Euan or Ian, or can be brought to the meeting. 

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Revealed: Defending Lawyer’s Previous Law Firm Considered Nordea’s Equity Release a Sham

6th March 2012 by admin under Legal Action     

Uria & Menendez, the previous employer of Mr. Jesus Perez de la Cruz, lawyer acting for Nordea, wrote in a 2006 report that coming up with a debt to reduce the value of the property was likely to be challenged by the Spanish authorities because it was a “simulation”. Just as Christen Amby, member of the Danish Taxes Assocation, said recently on occasion of the publication of a series of articles in Denmark relating to a mirror product offered by Sydbank, and in relation to the position of the Spanish Tax Office: “This is cheating the Spanish Inland Revenue”.

We understand that lawyers have a duty to defend their clients, but is it ethical to be on both sides of the fence?

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Spanish Equity Release Fiasco Legal Action – February 2012 Update

24th February 2012 by admin under Legal Action     

Antonio Flores of Lawbird explains the next actions in respect of the Equity Release Fiasco Case. Antonio comments on the demonstration to be held on the 8th of April Monday, at the offices of the Spanish Inland Revenue in Malaga. This will be done prior to reporting/filing a “denuncia” against the banks involved in allegedly scheming, together with unregulated, unqualified Costa del Sol pseudo-financial advisers, to defraud the Spanish Revenue on inheritance and wealth taxes of pensioners, as confirmed by the largest Danish newspaper.

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