19 January 2018 – Committee Update – ‘Seeing Things from Both Sides’

Committee Update, 19th January 2018
‘Seeing Things from Both Sides
Owners have been faced with trying to understand an increasingly complicated situation at Los Claveles for 3 years now.  As we approach a milestone in the dispute with Ona WimPen and the long awaited publication of the results of the Arbitration and Appeal Court cases, we take a look at the dispute from both sides.

However, before we as your Committee do that, we have to point out that Ona WimPen is not so keen to do the same. Resort Director Jose Jiminez has been busy explaining to owners for several months now that the purpose of their weekly meeting is solely to update them on what has been happening on the resort and to receive their feedback and questions about this.  Any discussion about the dispute has been strictly off limits.  To owners’ surprise then he made an exception this week by inviting Roger Barrow, new owner at Los Claveles, President at Las Casitas and Director of WimPen Holdings there, to address the weekly meeting.

Snr Jiminez was also kind enough to display on the resort noticeboard the newsletter produced by the group that Mr Barrow leads in opposition to the owners who direct and support the Club Committee.  Snr Jiminez’ generosity to Mr Barrow and his group is in sharp contrast to his current (and Ona WimPen’s past) denial to the Club Committee its right to display briefings on the same noticeboard.
The discrimination shown by Ona Wimpen against owners who oppose its illegal administration of Club Los Claveles will not be lost on owners reading this update.
Ona WimPen’s Profit PerspectiveOwner’s Not-for-Profit Perspective
1. Further Legal Challenges
The legal process continues, and as Ona WimPen is a Spanish company subject to Spanish law, there will be further legal challenges to the actions of the committee which are expected to take some time.
The orders and awards of arbitration are covered by the New York Convention  which grants the party against whom recognition is sought, that’s Ona WimPen in our case, 30 days to raise objections and to submit any supporting documents. The court must then render it’s ruling within 10 days after the objections have been submitted. The ruling on an application for recognition of a foreign award cannot be appealed.
2. Membership Register
The membership list will not be handed over as this is also subject to Spanish Data Protection law. Handing it over would require a judgment in a Spanish court
Under the Constitution the Club Committee has to maintain a Members Register. Under both UK and Spanish Data Protection Laws this makes them “Data Controllers” and the data belongs to the Club not the management company (WimPen) that the task was previously delegated to. There was a test case under similar circumstances heard by the Agencia Española de Protección de Datos) (AEPD) (la cesión de datos personales de los propietarios 2008-0084) which found in the favour of the owners owning the data. This was discussed in Arbitration and WimPen ordered to hand it over to the Club. It has yet to do so.
3. Challenge to the Legitimacy of Owners’ Democratic Actions
Ona WimPen is challenging the legitimacy of the 2016 AGM due to the absence of Founder members on the committee and due to the fact that only a small proportion of owners were advised of this meeting. This also applies to constitution changes and decisions made at that AGM.
Ona WimPen’s recent application to appeal the arbitration case on these matters was rejected by the Appeal Court Judge.

The Club estimates that between 80% and 90% of owners were invited to the AGM, and record numbers took part.
4. Late Payment Penalties
Late payment penalties will be reinstated from Feb 1, except where an owner has advised WimPen in advance that they will pay on arrival in which case the penalty will be credited on arrival.
Ona WimPen is no longer the Club Administrator and is breaking Spanish law by invoicing Club members, charging late payment fees and denying owners access to their property. Our new Administrator, who is a Spanish lawyer, is currently taking legal action in Spain to stop Ona WimPen doing this.
5. Payment by Credit Card
Payment by credit card must now be accompanied by a signature confirming that the paid-for service has been received from Ona WimPen and that no challenge to the charge will be subsequently made.
Five owners have cancelled credit card transaction on return to the UK. Money has been recovered in every case except one. The owner’s credit ratings may also have been affected.
Advice from the Club’s solicitor is that Ona Wimpen’s form has no legal merit as it is being completed under duress and therefore the rights of the individual to subsequently pursue a claim for a full refund are not restricted by it.

Most credit card companies accept that money is being extorted by Ona Wimpen from Club Members who have already paid their maintenance fees to the Club, and they have refunded the charge. Two companies have not, and they are being contacted to explain the full facts

Experian Consumer Credit Reporting Agency has stated categorically that a “charge back” under section 75 of the credit card act does not affect personal credit ratings in any way whatsoever. 
6. Payment of Maintenance Fees
Owners who did not pay Ona WimPen their 2017 maintenance will have to pay for 2 years maintenance in 2018 before being given access to their villas.
Ona WimPen is breaking the law by invoicing Club Members for maintenance fees without a management contract and denying them access to their property if they do not pay their fees to Ona Wimpen.  Legal action is being taken to stop Ona WimPen doing this and Snr Castro, MD of Wimpen, faces a jail sentence for fraud if found guilty.
7. All Member General Meeting
Ona WimPen is still seeking to agree a full general meeting with every owner invited to vote, including Ona WimPen founder members, under an impartial moderator appointed by a judge. Ona WimPen will honour any decisions made at such a meeting, even if that means another administrator being appointed.
The Arbitrator ruled that Hiro Bulchand is the legally appointed Administrator and that Mr Pengelly is the only legitimate founder member. He is currently suspended for bringing the Club into disrepute and appears to be further implicated in preventing the Club from being represented in a Spanish Court case of clandestine origins.

In the last few weeks the Club Committee tried to arrange a meeting with Mr. Castro to discuss a way forward but the terms of the meeting were so unfavorable for the Club that the meeting did not take place. It would have meant abandoning all that had been achieved through arbitration.

An all member  general meeting will be held when the Club has possession of its property and can control proceedings without being held to ransom by Ona WimPen.
8. Acting Administrator
Ona WimPen will stay in place as acting administrators to protect owners’ holiday and to continue resort improvements until such time as the future has been agreed by a full and democratic general meeting
Ona WimPen’s contract with the Club expired on 2 May 2017. The Arbitrator ruled that Hiro Bulchand was legitimately appointed by Club members as the new Administrator from 3 May 2017. Ona WimPen has lost its leave to appeal against this which means that it has no legal authority to act as Club Administrator or to spend the Club’s money. It will be removed by legal process after which all Club Members will be invited to decide on the improvements to be made to the resort without third party influence.

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