Article on Class Action in the UAE

Business 24-7 recently did a Q&A with 5 lawyers – on Class Actions, and the rights of an investor in taking a bankrupt developer to court. Like everything else – it doesn’t look good for the investor.

Here is a link to the article in Business 24-7:

PDF of above article from Business 24-7
Bankruptcies_ Little scope for class action suit

NYT Article – For a Bounced Check in Dubai, the Penalty Can Be Years Behind Bars

Article from the NYT that summarizes the situation well.

On one hand – you have people putting up brochures, selling apartments to be built on land that they don’t own, collecting 30%, 40% payments – all with impunity.

On the other hand, bounce a cheque and you go to jail… even if you are getting shafted by one of the above schemers.

Click this link for the NYT article (Registration Required):

Or click below for a pdf copy of the article
For a Bounced Check in Dubai, the Penalty Can Be Years in Jail – NYTimes.com

Sweethomes / Post Dated Cheques

Article from Business 24-7 (Dated Wednesday Aug 19th). See link at end of excerpt.

“Ajman property buyers seek cover for PDCS
Investors in the Paradise Lakes Towers project at Emirates City, Ajman, want their payment plans rescheduled because of delays and the fear that post-dated cheques (PDCs) that were to be banked only on completion will be cashed in.

The project was due to be delivered in December 2008 but master developer R-Holding is now working towards a 2009 deadline.

Sweet Homes, an exclusive selling and marketing consultants, has already cashed cheques dated December 2008 that were conditional on completion, an investor told Emirates Business on condition of anonymity.

Omar Al Barguthi, Director-General of the Ajman Real Estate Regulatory Agency, said work on the project was continuing though it was slightly behind schedule.

Sweet Homes and R-Holding did not reply to enquiries from Emirates Business.”

——

Link to article from Business 24-7.ae

Article on the Legal Process in Dubai (UAE)

Legal process in Dubai takes 18-24 months (from Business 24-7)

By Karen Remo-Listana on Monday, August 24, 2009
Litigation cases in Dubai take on average 18 months to resolve, according to leading lawyers – and hearings may soon go on for even longer as more disputes flood the courts.

“Court proceedings may well take in excess of 18 to 24 months from filing a case at the Court of First Instance to being in a position to enforce an executable judgment,” Stephen Ballantine, Senior Legal Consultant at Galadari & Associates, told Emirates Business.

Salem Salem Al Shaali, General Manager at Al Shaali & Co, said: “When we consider three-stage litigation, the process usually takes a year and a half. However some cases might be solved in three months and this is what we are experiencing with real estate disputes. We can consider three months as the standard period for first degree litigation.”

In many instances cases pass through all the possible stages from lower court to appeal court, supreme court and execution court, making the length of time taken much longer.

About 90 per cent of disputes are resolved before a complaint is even filed with the courts and between 70 and 90 per cent of cases that are referred to the courts are resolved before a hearing takes place.

However the percentage of cases settled in the early stages of the legal process in Dubai is far lower than the global average because of the country’s legal payment structure. The rule here is that each party is responsible for its legal costs, win or lose, and lawyers say this tends to “lock in” parties engaged in litigation until a final judgment is reached.

“If this costs rule were changed – making the losing party pay the winning party’s legal fees – the volume of cases being filed in the courts would be dramatically reduced,” added Ballantine.

This structure is being applied at the DIFC Courts, the region’s only English-language, common law court.

DIFC Courts Registrar Mark Beer said: “In most common law systems the losing party pays all the legal costs. In our court, generally, the winning party’s legal costs are paid by the losing party. This makes people think seriously before going to court – it deters them from bringing spurious claim.”

Going to court in Dubai carries a high price, as it does anywhere in the world. KK Sarachandra Bose, a partner at Dar Al Adalah Advocates & Legal Consultants, said that in order to file a recovery case here a litigant had to raise an average court fee of 7.5 per cent of the amount claimed, with a cap of Dh30,000. “There are instances where the translation and attestation costs run above the value of the claim,” he added.

“The photocopying of papers for submission can run to hundreds of pages, depending on the number of parties involved.”

Lawyers’ fees are also not cheap. Their charges vary according to their experience and expertise and in recovery cases the normal lawyer’s fee is 10 per cent of the amount claimed.

Ballantine said: “Our firm charges hourly rates starting at Dh1,200 for paralegals to Dh2,300 for senior consultants like myself.”

He said foreign firms tended to increase their fees by 40 to 50 per cent as they subcontracted most of the work to local firms.

“Foreign firms are in 99 per cent of cases unnecessary because they are not licensed to appear before the UAE courts. It makes financial sense to directly instruct a local advocates’ office to avoid excessive charges.”

Link to original article from Business 24-7.ae

Jul – Update – Termination Agreement

Finally closed one chapter. Got my PDC’s back. My direct communication with Sweethomes came to a complete halt.

The law firm kept a more unemotional tone through the whole thing and brought things to a close. They collected the Post Dated Cheques, and had the termination agreement signed. Of course, while these discussions were underway, Sweethomes presented two more cheques twice – an old uncleared one for the second time, and a new one. Duh!

Crooks or Clowns – I can’t tell?

Here’s what I lost so far:
Forfeited Payments -175,000 AED
Legal Fees – 21,000 AED (not counting at least 7 visits to SH Homes Office, phone calls, headaches)
Courier, GPA etc – 1,000 AED
===================================
197,000 AED or US$53,600
===================================

I have to wait until Dec 2010 at the earliest to get AED 175,000 back (50% of total paid). Something tells me that it will involve another lawyer and more chasing – unless Sweethomes has a miraculous change in their corporate culture.

Very very painful, but not to have to deal with their unscrupulous practices, an absent regulator & system, near impossible court system and finally the stupid laws around post dated cheques is Priceless.

ITV – Homes from Hell

I am taking the liberty of copying and pasting a message from another Forum. This one is from a UK producer that is looking for stories from Dubai. My experience was a few kilometers over, across in Ajman. The title very aptly describes our experience in the desert.

Write to them if you feel you have something to contribute and could benefit from some attention.

—————Posted @ Skyscraper City – July 1st———————–

Dear all,

The next series of ITV’s Homes From Hell is looking for stories from Dubai.

Did you have to wait years for your off-plan apartment to be finished? Were you stung by rising development costs and hidden fees and charges? Was your finished apartment far from the luxury build you paid for? Did your developer disappear when you discovered the property you bought was to be built on land the developer didn’t even own?

If any of this sounds familiar and you have a story you would like the journalists at Homes From Hell to investigate then please get in touch at victoria.thake@itv.com or on 0207 157 4276.

Many thanks,
Victoria Thake
Assistant Producer, New Homes From Hell

Jun 09 – Post Dated Cheques – Observations by a commenter

This was one of the comments on the Zawya website – commenting on the flight of Mr. Ford / BlueBannana – and Post Dated Cheques.

By the way, I am told that when you get a credit card issued by the bank in the UAE, they ask the card holder to make out a blank Post Dated Cheque – which the Bank holds as security. You guessed it – if they think the revolving amount will become a bad debt, the bank presents the cheque. If it bounces, that turns it into a criminal incident.

Same for a car loan etc…. the bank holds a blank Post Dated Cheque as ultimate security.

Partial reposting -
————————————————————————————

Post Dated Cheques / PDC by John smith – 13 hours ago
The Post Dated Cheque Laws are in the UAE are antiquated, and each passing day that these laws are not addressed, means the cancer keeps spreading through the system. This goes beyond businessmen. Getting caught up in the mess in the UAE can be very Kafkaesque.

Here’s my experience:

1) Once you issue a Post Dated cheque – there is no system for the account holder / issuer to put a stop on the cheque. Closing the account is illegal, even if it is because you are being defrauded. Draining the funds out of the accounts, to let the cheque bounce is illegal. The only way to get the bank to put a stop is to get a court/police order. That court case can cost Tens of Thousands of Dirhams.

The bank permits cheque stops in the event – get this – cheques that have not been issued.. if one has lost their cheque book. Big deal.

2) Very common practise for developers to advertise projects with payments seemingly linked to construction milestones which should occur by certain dates. The Developer then pushes people to write post dated cheques, which they cash with regularity while construction does not start or is on terminal hold. In this scenario, there is no truth in advertising laws, so the developer hasn’t violated anything. If you let the cheques bounce, you are guilty.

3) Developers who have abandoned projects, or are near certain to abscond – are cashing cheques. Even in this scenario, it is the developer that has the upper hand. If the buyer lets the cheque bounce, he commits the first illegality.

4) Developers present cheques to non-escrow accounts. While that is illegal – if you let the cheque bounce, the developer – by walking into the local police station – can get you put on an immigration watch list. You think the police, who detain you at the airport, understand anything about escrow accounts…?

… fortunately, they’re now swamped by the sheer volumes. Over 500K in the 1st 4 months of 2009 or 6% of the total issued.

A few things that can be done – just as an observer

5) Bouncing a cheque is a criminal act in the UAE. The law should be changed to make it a civil / commercial act, or at least introduce a threshold or cutoff amount. Or even start by segregating between business & personal accounts.

6) Since the laws don’t get published openly, people keep writing cheques not knowing the consequences or limitations. Banks should give every cheque book owner a one pager on the consequences of cheque bounces in the UAE. Lots of people from the West automatically think that a cheque can be stopped, like in their home countries.

Welcome any banker or lawyer to correct my understanding… or even present the alternate side – the positives of the current system. I can’t think of anyone but a small minority that benefits from the status quo.

I am stuck with a developer there – who advertised 50% payment until completion, 25% on handover, and 25% in installments after handover. Construction start was delayed for 12+ months, while, the developer helped himself to 40%, in some cases 60% of total payments by mid 2009. Having approached a law firm for help, their advise was to give us a lecture on the PDC system in the UAE, and the dire consequences of letting the cheques bounce………

Jun 09 – The grass is no greener in Qatar

Here’s the story of another guy caught up in Qatar. Rather depressing if you follow his tweets etc so brace yourself.

This post digresses from anything to do with Ajman Uptown, but in general probably a good rule of thumb to really consider if it is worth all the headache that comes with investing in that part of the world. No place is perfect, but good rule of thumb to stick with what you know, and where the rule of law is transparent, applied to all etc.

Another question: Is the risk worth the reward? Good time for some introspection…

Beligian jailed for three years after company fails in Qatar- from the National

Link to his blog
The sad part, his sponsor/tormentor is a Qatari (of South Asian Descent) who himself just got citizenship ~3 years ago. How soon we forget.

It is good that the Belgian individual can use the internet – get some press – otherwise, it’d have been another forgotten story. Also, good that the Belgian ambassador is putting him up. My ambassador definitely wouldn’t !

June 09 – Success Story ends in Flight

The attached story – Success story ends in Flight – will give some of you an idea of why all the ranting about Post Dated Cheques.  Take an outfit like Sweethomes, who is holding post dated cheques and you get an idea of the mess that they can create for buyers who issued them. Expect more of these stories unless the laws are changed.

Full story at:
http://www.zawya.com/story.cfm/sidZAWYA20090625045831/Blue%20Banana%20Slips

Zawya.com – 25th June ‘09

Here is a portion of the article / some excerpts:

Simon Ford rode into Dubai in 2004 with little to his name but an entrepreneurial spirit and a couple of suitcases. Within three years, he had met his wife, started a family and founded a “gift experience” business, Blue Banana, that grew with the emirate’s booming economy. He was named one of the country’s “Hot 100” entrepreneurs by the socialite magazine Ahlan! in 2007.

But this week, with debts mounting in the wake of the global financial crisis, he fled back to the UK with his pregnant wife and three children to escape potential criminal charges and alleged threats on his life by creditors.

Mr Ford’s situation is a high-profile example of the dozens, if not hundreds, of cases in which businessmen face criminal charges for bouncing cheques or having difficulty making payments as a result of the downturn, lawyers say. In an emotional “letter to the Dubai public” circulated yesterday, he sought to explain the “desperation” that had led him to leave and pledged to “repay every last dirham to everyone who is owed money from bluebanana.com”.

Mr Ford, 34, said he had been forced to leave because bankruptcy laws were not developed enough to handle his situation without considering him a criminal.

“I am not running away from debt, I am purely protecting those dearest to me and getting out of a country which, due to the lack of structured bankruptcy laws and a banking system which has zero flexibility on loan repayments, drives people to make horrible decisions,” he wrote.

“The real core of the issue is that fraud, which is criminal in all countries, is linked here to bounced cheques,” said Sameer Huda, a partner at the law firm Hadef & Partners.

“But fraud requires criminal intent, effectively deception to secure an unfair or unlawful gain. If a business suffers a downturn because of the macroeconomic climate or failure of its own business model, then this shouldn’t be linked to fraud if there was no intent to deceive on a payment obligation.”

This issue is prevalent in the UAE because businessmen and other borrowers tend to use postdated cheques as a form of security of future payments.

June 09 – Ajman Uptown / Sweethomes – Oman

Have a look at the attached blog -

I think this blog captures the crap we’ve been subjected to – specifically (see pdf file or link at bottom):
Muscat Confidential_ Omani papers continue to print any PR crap they are sent

” Basic story: Sweet Homes apparently advertise a deal based on a 10% deposit, regular payments until 50% paid, followed by 25% on completion and a further 25% after that. It seems Sweet Homes asks for post-dated cheques from ‘investors’ who purchase, and then proceed to cash them, because the contract is in reality based on a pre-defined project time schedule and is not related to actual physical construction milestones, simply against a promise to finalise contruction.”

http://muscatconfidential.blogspot.com/2008/12/omani-papers-continue-to-print-any-pr.html