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(506) 2223-1327             Published  Monday, Jan. 18, 2010,  in Vol. 10, No. 11        E-mail us
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Trusts are a good way to insure trustworthiness
By Garland M. Baker
Special to A.M. Costa Rica

Trusts are one of the most important legal documents a lawyer can make for a client in Costa Rica.  It is amazing that most attorneys do not know how to create or administer them here.  Most people think of trusts in the case of death and inheritance, but they can be used for many more situations.

This is a refresher for expats to remind them of the usefulness and power of making a trust to protect assets or to solve a dispute.  Originally, this subject was addressed last year in "Trusts are a perfect vehicle for getting deals done."

Many large property transactions are based on trusts.  Banks use them to lend money.  Developers use them to hold property until a sale and then, once payment is made for a piece of property or building, they release it from the trust to the purchaser.  The later is usually done in conjunction with the lender to the developer.

Fideicomiso is the word for a trust in Costa Rica.  There are five basic parts to a fideicomiso:   1) trustor or fideicomitente, 2) trustee or fiduciario, 3) beneficiary or fideicomisario, 4) trust property or bienes fideicometidos, and 5) the trust contract or contrato de fideicomiso.

The rate published in the lawyers' fees guide to charge for a trust is .01 percent.  However, this rate is not what lawyers usually charge for the document.  Really the fee charge by a lawyer depends on the complexity of the trust.  The going rate is more like 1 to 3 percent of the value of the trust.  Usually, trustees charge a yearly administration fee as well, and it can be expensive.

The value of a trust for the average expat is to use them as a vehicle to sell or buy a piece of property or to solve a legal dispute.  Here are a couple of examples:

An expat has a property to sell and he or she has found a buyer, but the buyer is another expat who cannot get credit in Costa Rica and does not have all the money.  The seller can take back a mortgage and attach the property, but the danger is that the buyer may not pay.  Even though the collection laws in Costa Rica have changed, foreclosures can still be complex and can get hung up in court. 

What happens in many cases is a buyer who cannot pay sues the original seller in criminal court over some trumped up allegation to postpone paying.  This tactic does not work as well as it use to, but it still works for awhile.  If the seller in this case puts the property in a trust, it would be harder for a nonpaying buyer to wiggle around and not pay.

In this example the seller and the buyer would be trustors or fideicomitentes and they would put the property in question in a trust or fideicomiso held by a trustee or fiduciario for the term of time that it would take the buyer to pay the seller.  In this case, both the seller and the buyer would be beneficiaries or fideicomisarios of the trust.  The purpose and result of the trust would be that the seller would get paid in full and the buyer would get the property free and clear of any encumbrance.

This kind of legal transaction lessens the chance the buyer will pull any funny business on the seller because if he or she does, the trustee would revert the property back to the seller.
trust graphic

Trustees can be virtually anyone, but they usually are lawyers, title insurance companies or banks.  Making a trust with a lawyer and using a lawyer as the trustee is in most cases the cheapest alternative.  Title insurance companies are reasonable priced in most cases, with banks being the most expensive and more complicated when it comes to the paperwork.

Trusts work great to solve legal disputes. 

Say two or more people are in a legal battle.  Usually, this means fighting over money or assets.  If the parties to the dispute can come to an agreement to end the matter, the terms of the arrangement can be put into a trust document to enforce the agreement.

For example, an employee of an expat leaves and sues for amounts unpaid by the employer.  This is a very common occurrence in Costa Rica: Disgruntled employees suing their employers.  Under the Costa Rican labor laws, there are amounts that must be paid to an employee regardless of the reasons the employee leaves or whether the employee is fired. 
Employees love going to the labor ministry and in many cases to court because they believe they will win big.  However, in most cases they are willing to settle out of court for a lesser amount because they know the court system in Costa Rica is slow.

The best case scenario is for the expat employer to just pay the employee off and be done with the problem.  However, many expats are on a limited income because they are retired and cannot pay the full amount.  In this case, a simple trust with a lawyer comes in real handy.

The trustors, the employer and the employee would go in front of a lawyer who would act as a trustee to an agreement and set out the terms of payment.  The employer would make payments to the lawyer who would in turn disburse the money to the employee.  In this way, an expensive legal battle in labor court would be avoided.  Nine times out of ten, an employer loses in labor court, so it is a nice place to avoid.

Trusts are not magic, but they are sure a good way to solve simple or complex legal situations in Costa Rica.  In many cases, they can be a less expensive alternative to financing, collection and solving legal problems.

Garland M. Baker is a 38-year resident and naturalized citizen of Costa Rica who provides multidisciplinary professional services to the international community.  Reach him at info@crexpertise.com.  Baker has undertaken the research leading to these series of articles in conjunction with A.M. Costa Rica.  Find the collection at http://crexpertise.info, a complimentary reprint is available at the end of each article.  Copyright 2004-2009, use without permission prohibited.


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San José, Costa Rica, Monday, Jan. 18, 2010, Vol. 10, No. 11

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Wealthy gunshot victim
getting detailed investigation

By the A.M. Costa Rica staff

Agents are pulling all the stops in their investigation of multi-millionaire John Felix Bender, who died in his home in  La Florida de Barú, Pérez Zeledón.

Bender, 46, and his wife, Ann, lived in an 8,000-square-foot home that had walls of glass. The five-level home faces a 600-foot waterfall, according to The New York Times that did a short article on the property in September 2000.

The mansion is set on 5,000 acres that Bender and his wife turned into a private wildlife refuge, called Refugio de Vida Silvestre Boracayán. Scientists had access to the refuge and some studies led to academic publications.

Bender was a math whiz who had a system for buying securities. He was known to make money going against conventional wisdom. At one time he ran the Amber Arbitrage Fund, but left the business after he suffered a stroke in 2000, according to The Wall Street Journal. Bender had tight security at his refuge in La Florida and had been in Costa Rica for at least eight years.

Investigators were reported to be concerned with the way Bender was shot in the right side of the head. They said that he was left-handed and that there were other inconsistencies in the case.

Our reader's opinion
Colon now is too volatile
for running a business


Dear A.M. Costa Rica:

I am surprised that your publication does not find the foreign currency exchange in Costa Rica a daily news worthy item along with weather. (The two most important issues in Costa Rica, right?)

For expats and Costa Ricans alike the dollar-colon relationship directly impacts our cost of living in Costa Rica and is not included into Costa Rica’s inflation index.

One presidential candidate, Otto Guevara, is promoting the U.S. dollar as the national currency of Costa Rica much like Panama, El Salvador and Guatemala. It would certainly make investing and purchasing more predictable than the extreme fluctuations we now experience.  One week ago the U.S. dollar was pegged at 573 and today, Friday the 15th the dollar buys only 552 colons. (A drop of 21 colons in one week.)

In real terms, a 25,000 colon expenditure a week ago = $43.63. That same purchase a week later = $45.29 That is a $1.66 price increase in one week.  While many goods and services are sold in dollars, the sales price is typically pegged to the value of the colon. These value extremes are causing havoc among investors as well as international trade.

We are a country that lives from international trade and tourism. Therefore longer term predictability of costs is essential to a healthy economy. And, more so during a period such as now when pricing of products and services is so terribly critical to the sales process.

For example: I import my products in dollars and sell in colons. It is a shot in the dark how to price my product to the public and still be price competitive since there is so little predictability.  Exporting is even worse.  Products are exported in dollars and when the Costa Rican product or service becomes more expensive because the dollar buys less, the results are to be priced out of many markets.  This includes tourism that pay in both dollars as well as in colons.

There are but few companies in Costa Rica who truly influence the currency exchange ratios and they throw askew any chance of even short-term planning for the mid to small businesses, not to mention consumers. When companies like Intel deposit large quantities of dollars to pay a major supplier or even its taxes, the colon goes up in value. However, it is an artificial value since soon after larger Intel like companies pay out the dollars, the colon is again devalued. Not being privy to the plans of Intel, HP, Boston Scientific, etc. the rest of us must remain reactionaries who cannot control our own monetary destiny.

One of two things needs to happen. Either go to a dollar economy instead of this mixed bag we now have, or go back to the controlled value of the colon and forget the floating Banco Central bands. This limited free market policy might help the government’s books, but it is not helping either enterprise or the consumer.
John Holtz
Santa Ana

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Each day someone complains via e-mail that the newspages are from yesterday or the day before. A.M. Costa Rica staffers check every page and every link when the newspaper is made available at 2 a.m. each weekday.

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Readers should refresh the page and, if necessary, dump the cache of their computer, if this problem persists. Readers in Costa Rica have this problem frequently because the local Internet provider has continual problems.

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San José, Costa Rica, Monday, Jan. 18, 2010, Vol. 10, No. 11

   
Check out the printed version of the Top Story news feed and see what  you  missed.
Enjoy Incredible Beach Sunsets and  Sunrises. With the Pacific Ocean and the awesome mountain behind.
Elegantly built to your specifications. Delivered and set up at your home in Costa Rica.

Caldera highway opening criticized as a political ploy
By the A.M. Costa Rica staff

President Óscar Arias Sánchez already is being criticized for moving up the inauguration of the San José-Caldera highway to a week before the Feb. 7 general elections.

Arias said during a trip to Puntarenas that the highway would be opened sooner than expected. Skeptics immediately decided that the action was taken to shore up the election chances of the president's hand-picked candidate, the former vice president Laura Chinchilla.

Arias was quick to point out that when the highway opens he will be able to travel by car to Puntarenas from his Rohrmoser home in about 45 minutes. The route that has been used for years takes about two hours.

Arias said he was aiming at an opening Jan. 27. The project was supposed to be completed in March.

The skeptics may not be correct. This is the time in a president's term that there is one inauguration after another. Former president Abel Pacheco, as his term was ending, pushed ahead the inauguration of the highway bridge over the Río Tempisque even though it was not finished.

Arias was in Puntarenas Saturday inaugurating a center for street people, including drug addicts. The new center cost about $215,000 and will house about 50 persons, the government said.

Arias is not supposed to take sides in the election according to the current rules, but he has made no secret of his desire to see a woman as president. Polls are suggesting that Ms. Chinchilla is losing support among voters and probably will be thrust into a second runoff vote against Otto Guevara, the Movimiento Libertario candidate. She has to win 40 percent of the vote on the first ballot to be elected. Guevara is the focus of a hard-hitting campaign. Ms. Chinchilla is taking the high road.

Meanwhile, the election took a strange turn. Rolando Araya, presidential candidate for the Alianza Patriótica, and Walter Muñoz of Integración Nacional gave their support to Ottón Solís of the Partido Acción Ciudadana.  
ARias and shears
Casa Presidencial photo
President Arias will have a busy pair of scissors during the next few months. Here he is in Puntarenas Saturday.

The announcement was expected because representatives of the three parties had been in discussions for several days.

According to a joint statement, the alliance is to defend the country against the aggression of neoliberalism, corruption and the indiscriminate sale of human and natural resources. Supports are mostly those who opposed the free trade treaty with the United States and are against privatization of state resources.

Of the three, Solís has the best chance of winning the presidency even though he is well down in the polls. The candidates are calling the alliance an agreement of honor. There is no way that the names of the candidates can be taken off the ballot. The paperwork already is printed and being distributed.

If Solís is elected, he is pledged to form a government of national unity, according to the announcement. Presumably the other presidential candidates would get jobs in a Solís administration.

Left in the cold are those who are seeking legislative posts on the tickets headed by Araya and Muñoz. The alliance is sure to skim off some legislative votes.


Government cheers vote on docks, but Vargas sees a bribe
By the A.M. Costa Rica staff

The Arias administration is basking in the glow of an overwhelming victory in Limón Friday where more than 90 percent of the dock workers voted to accept the government's offer of a payoff. The deal is part of the plan to lease the ports of Limón and Moín in concession.

The dock workers would get $137 million in severance pay if the deal goes through, and many would be eligible to seek jobs with the concession holder. The deal is similar to one that was worked out to put the Caldera docks on the Pacific out in concession.

But the leadership of the union opposes the deal, and refuses to consider the meeting of about 700 union members Friday to be a general assembly. The case likely will be fought out at the Ministerio de Trabajo and in the courts.
The union leadership and the Asociación Nacional de Empleados Públicos y Privados were outraged by the vote. The association's general secretary, Abino Vargas Barrantes, likened the Arias brothers, Óscar and Rodrigo, to Latin American dictators and said that they bought the votes with a big bribe. The association stands to lose significant income if the ports go into a concession.

Rodrigo Arias was the only one of the two brothers to comment on the election. He is the minister of the Presidencia, and he said the executive branch was pleased with the vote.

A Casa Presidencial release emphasized that the proposal was for a concession and not to privatize the docks, which are among the most inefficient in the world. Rodrigo Arias insisted that the assembly of workers had complete validity. Court cases will hinge on technicalities and interpretations of the union's constitution.


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San José, Costa Rica, Monday, Jan. 18, 2010, Vol. 10, No. 11

Costa Rica rescue team is ready to go via a trip donated by TACA Airlines. The scene was Friday morning.
Costa Rican team to Haiti
Ministerio de Gobernación, Policía y Seguridad Pública photo


Time is running out for successful rescue efforts in Haiti

By the A.M. Costa Rica staff
and wire service reports

Costa Rica's human contribution to the rescue effort in Haiti left Friday for that nation. At least 20 of the 50 individuals on the team are experts in rescuing persons trapped in rubble. Their route was through the Dominican Republic, which shares the Island of Hispaniola with Haiti.

Much of the capital of Port-au-Prince is that way, and time is running out for those who are trapped. The 7.0 magnitude earthquake was late Tuesday afternoon. There has been no official word back from the Costa Rican volunteers, but the overall picture is gloomy.

So far more than 70 people have been found alive, a record number for these operations following tremors, said the United Nations. More than 40 teams, comprising over 1,700 rescue workers and 161 dogs, are working under extremely difficult and challenging conditions, the organization said.

Among the problems facing Haitian earthquake survivors is the shortage of clean water.

If survivors go without water, they could die of dehydration. Those desperate enough to drink dirty water risk getting diarrheal diseases, including cholera.
International aid teams are working to alleviate the problem, which is familiar to those with experience in disaster zones.

The United Nations Children's Fund has shipped water purification tablets, water tanks and rehydration salts to Port-au-Prince. The World Food Program is also distributing water purification tablets.

A U.S. aircraft carrier now operating off Haiti's coast also brought thousands of bottles of water and is equipped withpurification machinery capable of producing more 
than 1.5 million liters of drinking water a day.

Aid workers' ability to distribute the supplies has been hampered by transportation and communication difficulties. Clean water was already scarce in Haiti before the earthquake hit. The World Health Organization says that as of 2006, only 58 percent of the population had regular access to clean water, and only 19 percent had appropriate sanitation.

The head of the U.S. Agency for International Development, Rajiv Shah, said the U.S. military will provide 100,000 10-liter water containers.

Non-governmental organizations are also helping. Water Missions International, a U.S.-based charity, has sent 10 water filtering systems to Haiti and is planning to send more. The systems can provide clean drinking water to thousands of people a day.

U.N. Secretary-General Ban Ki-moon has arrived in Haiti to show his solidarity with the people of the impoverished Caribbean nation and assess for himself the scale of the devastation.

The earthquake is said to have affected one third of Haiti's population of 9 million, and the United Nations estimates that 10 per cent of the buildings in the hardest-hit city, Port-au-Prince, have been destroyed, leaving 300,000 people homeless.

Upon touching down in Port-au-Prince, Ban, who will take an aerial tour of the city, met with President René Préval and had an emotional reunion with Michele Montas, his former spokesperson who was in Haiti at the time of the tremors.  Other top U.N. officials perished in the earthquake. The country has been ravaged by continual tremors, too, complicating the rescue work.



Volunteers providing link to persons with families

By the A.M. Costa Rica staff

The communication situation in Haiti has improved since the blackout during the middle of last week. Haitians in Costa Rica had no luck in trying to reach relatives right after the Tuesday quake.

Mobil communication has been restored in some parts of the damaged country. In addition, volunteers are providing links between Haiti and the outside world.

A reader reports that the Salvation Army Team Emergency Radio Network has been handling several hundred requests for welfare information an hour.
Internet links like http://koneksyon.com and American Red Cross Family Links also were popular. However, the Internet has become a victim of its own success, according to Christopher P. Csikszentmihalyi of the Massachusetts Institute of Technology. He is Center for Future Civic Media there. He said on a journalism Web site that there were too many sites where people were putting information. Technology volunteers set up a system to mine the information.

He said that Google now has become involved and is now running a site, http://haiticrisis.appspot.com/ Meanwhile, the Salvation Army site is at
 http://qso.com/satern/emailfrm.htm.

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San José, Costa Rica, Monday, Jan. 18, 2010, Vol. 10, No. 11

Medical vacations in Costa Rica

Escazú fraudster facing
up to 25 years in prison


Special to A.M. Costa Rica

Dilraj Mathauda, a fraudster from Escazú, has entered a guilty plea in federal district court in Miami to one count of an indictment pending against him, charging conspiracy to commit mail and wire fraud, the Justice Department and the U.S. Postal Inspection Service announced.

Mathauda was arrested following his indictment by a Miami federal grand jury June 9, based on charges that he and his co-conspirators purported to sell beverage and greeting card business opportunities, including assistance in establishing, maintaining and operating such businesses.  The charges form part of the government’s continued nationwide crackdown on business opportunity fraud.

Mathauda worked for USA Beverages Inc. and Omega Business Systems Inc.  Beginning in 2005, USA Beverages sold business opportunities to own and operate coffee beverage display racks.  USA Beverages rented office space in Las Cruces, N.M., and otherwise made it appear to potential purchasers that USA Beverages’ operations were fully within the United States.  However, USA Beverages actually operated from Costa Rica, said the government.  Omega was a Wisconsin and Florida corporation.

The companies used voice-over-internet protocol to pretend that they were based in the United States. Their offices were mainly mail drops, including one in Fort Collins, Colorado, that was contacted by A.M. Costa Rica. The mail forwarders did not know the criminal nature of the business.

In 2007 and early 2008, Omega sold business opportunities to own and operate greeting card display racks.  Omega rented office space in Madison, Wis., and otherwise made it appear to potential purchasers that Omega’s operations were fully within the United States.  However, Omega actually operated from Costa Rica. At one time the office was in la Sabana.

In all, federal agents estimate that Mathauda and his associates took in $13 million from U.S. customers.

To fraudulently induce others to purchase the business opportunities, Mathauda and his co-conspirators made, and caused others to make, numerous false statements to potential purchasers of the business opportunities, the government said.  Potential purchasers were falsely told that the companies were established years earlier, had a significant number of distributors across the country, and had a track record of success, the government added.  Potential purchasers were referred to references who told false tales of their success as business opportunity owners.  Through these and other misrepresentations, purchasers of the business opportunities were led to believe that they would likely earn substantial profits, said the government. 

“Business opportunity fraud causes significant financial hardship for victims who are trying to start a business and earn a living,” said Tony West, assistant attorney general for the Department of Justice’s Civil Division.  “The Justice Department is committed to uncovering and vigorously prosecuting business opportunity fraud.”

Mathauda faces a maximum sentence of 25 years in prison, a possible fine and mandatory restitution.

“This guilty plea demonstrates that individuals living outside of the United States will not be allowed to use technology to commit fraud on the American public. This investigation illustrates our resolve to protect American consumers from business scams, wherever they occur,” said Henry Gutierrez, U.S. postal inspector in charge, who is based in Miami.
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San José, Costa Rica, Monday, Jan. 18, 2010, Vol. 10, No. 11


Latin American news
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Chile turns to the right
and elects billionaire


By the A.M. Costa Rica wire services

Former Chilean President Eduardo Frei has conceded losing the country's presidential election to conservative billionaire Sebastian Pinera.

With 99 percent of the polling places counted, official returns showed Pinera with 52 percent of the vote and Frei with 48 percent. The result was less than the landslide that polls predicted.

Frei conceded defeat Sunday evening, marking an end to two decades of center-left rule in Chile.

The new president will succeed outgoing President Michelle Bachelet.  She cannot run for a second consecutive term.

Pinera, 60 and a Harvard-educated economist, lost to Ms. Bachelet in the last presidential vote in 2006.  He owns a television station, a soccer team and a stake in Lan Airlines.  He is expected to steer Latin America's most stable economy toward more free-market policies.

The center-left coalition known as the Concertacion has been in power since democracy was reinstated in Chile in 1990.

Chile is one of the few countries that allows foreigners to vote in presidential elections provided they have been living in the country for five years.

Frei failed to capitalize on the high approval rating of Ms. Bachelet.  Pre-election polls reported that she had the support of nearly 90 percent of the country's citizens. However, Frei's party courted some far left groups, and may have alienated some voters by doing that.


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