The Canary | Mon, August 30, 2021 | 0
Anfi boardroom battle spills over into court as Lopesan subsidiary demands bankruptcy over unpaid €30 million
Five years ago the heirs of Norwegian entrepreneur Björn Lyng, founder of the Anfi Group timeshare resorts, on the south-west coast of Gran Canaria, sold their remaining 50% stake in the company, along with its associated businesses, to Canarian hoteliers IFA a subsidiary of Lopesan (the Lopez family).
The €41.2 million sale came, at a significant discount, less than two years after a landmark judgement in the Spanish Supreme court, on January 15, 2015, ruling that Anfi had repeatedly mis-sold timeshare, having ignored the original 1994 EU Timeshare Directive, meant to protect buyers, and for more than a decade and a half had continued to do so, with apparently flagrant disregard for Spain’s subsequent Law 42/98 of 15 December 1998, which fundamentally prohibited various “hard sell” techniques, sharp practice and rushed signatures, giving consumers strengthened rights and a cooling off period in the face of a sometimes brutal sales deck culture, that had become increasingly normal in the industry before the courts had intervened.
One of the fundamental results of this ruling was the annulment of Anfi’s lifetime contracts sold “in perpetuity” since 1998, leading to a raft of claims and hundreds of compensation awards totalling tens of millions of euros. With the purchase of the Lyng shareholding the Lopez family were thrust into bed with their, up until that point, arch rivals, now as business partners in the island’s biggest timeshare resort, where the Santana Cazorla Group owned the other 50% of the business, plus one Golden Share giving them final say on many important matters such as accounting practices and appointments of administrators among other key areas.
The relationship has, in many ways, been notably low key, though they have faced each other in court before now. Several companies within the Hermanos de Santana Cazorla Group were recently made bankrupt. Santana Cazorla were also the developers and promoters of the controversial Tauro Beach project, which was recently cancelled along with the Anfi Tauro coastal concession, granted in 2015, which was reversed and removed following various discrepancies, at least one high profile arrest, and a series of court cases.
This Tuesday a boardroom battle that has been quietly raging behind the scenes came to the fore at the main Mercantile Courts of Las Palmas de Gran Canaria, pitting the investment partners, Santana Cazorla and Lopesan, head to head, in what could be a decisive battle for control of the Anfi Group, one of Europe’s leading timeshare companies. The future of two companies in the group, Anfi Sales and Anfi Resorts, is at stake, writes Iván Suárez in CanariasAhora, as Lopesan argues for their involuntary bankruptcy before magistrate Alberto López Villarubia who must try to decide if these companies have sufficient assets to pay off their short-term debts or if their insolvency should be declared, which would mean their assets being managed by a court appointed bankruptcy administrator.
The non-voluntary bankruptcy proceedings were requested by the company Isla Marina Sociedad Limitada, another Lopesan subsidiary and one of the creditors of Anfi Sales and Anfi Resorts, from whom they claim around €30 million. Anfi International BV, also controlled by Lopesan since its purchase, in September 2016, through the IFA chain, it is understood, are acting based on a request from former owners, the Lyng family, to decisively manage the financial liabilities of the company.
The Lopesan group owns 50% of the shares of Anfi Sales and Anfi Resorts. The other half belongs to Santana Cazorla, the so-called golden share, giving them a preferential position (double vote) over Lopesan in various matters. In the event of discrepancies, it is up to Santana Cazorla, for example, which lawyers can act on behalf of the two companies in legal proceedings. In the hearing held this Tuesday, the lawyers for Anfi Sales and Anfi Resorts positioned themselves against a declaration of bankruptcy, claiming that the other party (Lopesan) is motivated by “spurious interests”.
The outstanding debt, of approximately €30 million has its origins in a €95 million syndicated loan, granted to Anfi in 2004, by several participating banks and financial institutions, which had three purposes, explained José Luis Trujillo, Anfi CEO since 2003, and Arturo Ramírez, former director of the company and the one who negotiated that original agreement on behalf of Anfi. Most of it was to refinance old debts, as well as several million to build new hotels among other capitalisation needs. The payments for these loans were set to continue for a further 15 years, with instalments every six months, falling in step with the company’s own 6 monthly accounting schedule, however the final three instalments were not paid, including the largest and last payment of around €23 million, nor was the credit line refinanced, which led to an accumulation of unpaid debt now totalling nearly €30 million (between capital and interest). The debt then passed from those financial entities, who lent the money, to Lopesan subsidiary, Isla Marina SL, who bought the unpaid loan from the financiers, apparently having agreed to do so when they bought the Lyng family shares. These are the creditors who now demand the winding up Anfi Sales and Anfi Resorts, with a declaration of necessary bankruptcy.
José Luis Trujillo however said that there are various other options for the creditor to collect the amounts owed. One of them would be to foreclose on properties included as collateral in the initial loan, which are now valued at more than €116 million, almost four times the amount of the debt. He added that the group in fact owns more than 60 real estate assets with a total market value of €307 million, though €205 million worth of that are subject to mortgage charges, so could not be used to cover these debts. Trujillo said that the Board of Directors has already discussed the possibility of selling some of these assets to pay off the debt, but that this option has met with opposition from Lopesan’s directors.
He also claimed that the Anfi Group has about €20 million available to it, which would be enough to deal with two of the unpaid instalments, but not the final payment due. It has been noted, however, that the accounts presented this year at the Board of Directors meeting, held last week, is quite different from the one presented just over a year ago, before the pandemic, when the 2020 report included a deficit of almost €54 million.
The lawyers bringing the action demanded to know how there could be such a difference between the annual accounts of this year and last, when the final instalments of this debt are not even being counted nor have they included a further €30 million euros that Anfi owes to former clients who have secured convictions, in recent years, against the timeshare operator for serious irregularities in the marketing and sale of their primary products. Trujillo responded saying “Last year they asked me to include it”.
Anfi’s corporate director explained that, following guidance from their legal advisors, they have had to change their strategy in relation to how final judgments are dealt with so as to try and guarantee payments by designating sufficient assets to avoid seizures of the company’s current accounts.
Trujillo indicated that the group is trying to reach an agreement with the law firm that has won the majority of the enforcement proceedings against the Anfi Group, the Canarian Legal Alliance (CLA). Those liabilities, awarded by various courts, including several more Supreme Court judgements against the company, currently total about €40 million, of which they say they have already paid around €10 million. CLA however puts the figure at nearer to €54 million.
A “letter of intent” presented to Anfi’s Board of Directors envisaged the payment of some €5 million directly to CLA in order to obtain the “credit right” that clients had agreed by contract to pay to CLA, amounting to roughly 25% of all the money that Anfi has been ordered to return to clients in each sentence. With that figure currently calculated at around €11 million, Anfi, were the agreement to be signed, would save around €6 million off of what they owe.
Trujillo made clear that timeshare constitutes the group’s main source of income and that it is quite different from the hotel business. He said it is an industry associated with “luxury and trust”, which is why bankruptcy of any part of the group “would affect” the marketing of these products and put jobs at risk. The company currently has about 700 employees. “It would be devastating,” added Arturo Ramírez, former director.
Separate to this enquiry into Anfi’s commercial dealings and economic position, another court in San Bartolomé de Tirajana is currently investigating the Anfi Group for the alleged concealment of assets, in an attempt to avoid seizures. These proceedings were opened after the Las Palmas Prosecutor’s Office filed a complaint during the summer of 2019 against Anfi Sales and Anfi Resorts for the suspected crimes of obfuscation in the payment of court-awarded damages to their clients, punishable with insolvency and the confiscation of assets. Investigations by the Public Ministry began with the submission of two separate letters from the lawyers Miguel Rodríguez Ceballos, of the law firm Navarro y Ceballos (now Ceballos & Lopez) and lead lawyer Eva Gutiérrez, from CLA, exposing the obstacles allegedly placed by the company trying to avoid payment of amounts awarded in numerous judicial proceedings since that very first Supreme Court resolution issued on January 15, 2015, as part of that landmark case for CLA, brought by Miguel Ceballos, back when he was law partner to Mencey Navarro, now Mogán Deputy Mayor and Councillor for Urban Planning.