Using an invalid legal procedure – the Acao Especial de Consignacao em Deposito

1. The Dutch Legal Process against Fidelidade at the end of 2018

In that legal process Jan van Es/ Transes International SA heard for the first time why Fidelidade so far did not pay the financial damage: “ Fidelidade wants to pay but does not know to whom“, implying (without further identification) that there were more parties with similar competing claims (See Wildfire page)

Direct payment of the financial damage caused by the wildfire on the basis of 5 valid insurance contracts by Fidelidade to Transes International SA (the holder) is the normal. Not knowing to whom to pay is therefore the reason to make use of this special legal CPC process, the Acao Especial de Consignacao em Deposito, specified by the articles 916-924 CPC.

Fidelidade started in the beginning of 2019 with this legal procedure shortly after the Dutch Judge declared the Dutch court not being competent to hear the case and directed the case back to Portugal. Apart from he sudden introduction by the lawyers of Fidelidade of more creditors, the main reason for the Dutch Judge to deny competence, was based on article 39 of the general conditions – the arbitrage clause – put forward by the Fidelidade lawyers . (see the previous post – Arbitrage Manipulation)

2. Verification of the real facts in advance of the start of this process in 2019

To make use of this legal procedure of the CPC, you need at least:

1. One debtor facing real claims of various creditors

2. Various creditors, each with its own real and valid credit,

3. and finally a legal reason in accordance with the articles 916-924 CPC.

In the legal process started by Fidelidade in the beginning of 2019, we have in accordance with the Initial Petition (IP), Fidelidade as the debtor and various companies and private persons as creditors, which of course should all have its own specified, real and valid claim/credit resulting from the wildfire on Fidelidade.

The creditors included by Fidelidade in this process in 2019 (after the sentences of the Santarem and Lisbon court in 2014/2015) are:

1. Transes International, S.A. (Holder of 5 valid insurance contracts (see sentence Santarem court), but with still an unspecified credit at that time in 2019 caused by manipulations of Fidelidade – no proper restoration of the insurance contracts resulting from the sentence of the Santarem court (process ………) – see previous post “Original Contracts were never restored”), and no damage estimation in accordance with the general contract conditions of 2002.

2. Transes Investments, S.A. (a not existing company from Luxembourg with no insurance contracts (never had) , and no claims/credits)

3. Jan Van Es (with no direct insurance contracts, no direct credits, but being the “dono” of the insurance contracts hold by Transes International SA – as owner of the insured properties and the Almegue project). In the meanwhile with an irrevocable transfer of Rights and Liabilities from Transes International SA from the end of 2018 concerning this insurance case.

A Special Group of 5 creditors without valid promised property contracts (legally resolved since January 2004), without valid insurance contracts (null and void) and therefore with invalid claims (credits) (See: The details Santarem and Lisbon legal processes and sentences of 2014/2015).

These persons included by Fidelidade and its lawyers are:

1. Henrikus Andreas Kornelis Van Der Berg

2. Ronald Hoogendoorn

3. Antonius Adrianus Bontje

4. Nicolas Van Der Snel

5. Johanna Schultz Stenekes

So as far as the real creditors are concerned, there is only one direct and valid creditor, Transes International SA, with one substitute, the ” dono”, in casu Jan van Es, the owner of the insured properties, and only one debtor, Fidelidade. and Jan van Es presently with the power to replace Transes International SA in this process.

But with the start of this process in 2019 a creditor/dono without a claim/credit properly specified in accordance with the general contract conditions of 2002 and without proper capital insurance values, as ordered by the court of Santarem

In the Initial Petition, it is Fidelidade itself who specifies for Transes International SA/ Van ES the credit/claim amount, all in violation with the general contract conditions of 2002, and in violation with this special CPC procedure.

All mentioned facts were clearly and without any doubt known by Fidelidade and its lawyers before they submitted this processto the court – a major act of Ma-fe.

There is also a remaining legal question: Is Fidelidade in this case with unspecified and invalid/false credits/claims legally a debtor that can start / use this legal procedure. In particular as Fidelidade and its lawyers are fully aware of all mentioned facts in advance.

There are more structural application problems, such as the alteration of the claim/credit amount in this particular case, as the reconstruction costs of the destroyed chalets increase with the years. The longer this process takes the larger the financial claim/ credit will be. In the last 5 years since this legal process started, the reconstruction costs more or less doubled while the process still has to start in the Castelo Branco/Serta court. Real live is dynamic and not static.

3. Main Conclusion:
So it is more than clear that this manipulated legal process in the Castelo Branco/Serta court is from the beginning legally invalid and should be dismissed by the court.

Fidelidade should be sentenced to pay the present total financial damage value caused by the wildfire to Transes International SA/Jan van Es. All in accordance with the sentence of the Santarem court.

Annex: Deposit consignment process (civil process)

Consignment to deposit consists of depositing an amount or thing owed in order to definitively release the debtor. The substantive regime of deposit consignment is set out in articles 841 to 846 of the Civil Code (CC). In turn, the adjective regime of deposit consignment is regulated, as a special process, in articles 916 to 924 of the Civil Procedure Code (CPC). The debtor may request the court at the place where the obligation is fulfilled to deposit the thing or amount owed, stating the specific reason for the deposit: (i) uncertainty regarding the person of the creditor (cf. paragraph a) of paragraph 1 of article 841 of the CC), or (ii) default by the creditor (cf. paragraph b) of paragraph 1 of article 841 of the CC). The deposit is made judicially, before service, and can be for money or a thing. As a rule, the deposit is made at the Caixa Geral de Depósitos, unless the thing cannot be deposited there, in which case the depositary is appointed to whom the delivery is made (cf. no. 2 of article 916 of the CPC) . Once the deposit has been made, the creditor is summoned to respond within a period of thirty days. If the creditor, when summoned for the consignment process, has already proposed action or promoted execution regarding the obligation, the following is observed: (i) if the amount or thing deposited is the one requested in the action or execution, it is this attached to the consignment process and only this proceeds to decide on the effects of the deposit and on the responsibility for the costs, including those of the attached action or execution; (ii) if the amount or thing deposited is different, in quantity or quality, from that requested in the action or execution, the consignment process, after the pleadings, is attached to the action or execution and in this the questions raised regarding to the deposit (see article 917 of the CPC). If no objection is presented by the creditor and his default is operative, the court declares the obligation extinguished and orders the creditor to pay the costs of the proceedings.