Success claiming under a bank guarantee

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11 Nov 2010 9:40 PM by cbrammeld Star rating. 172 posts Send private message

Hi

We cancelled our contract due to several breaches of contract by the builder, executed the BQ and when it went to court we won the judgement, received deposit, legal interest and legal fees. The case was so strong they did not even appeal the Courts' decision. Money is now in our bank account.

Today we have recieved a letter from an English solicitor demanding full payment to the builder as they do not feel they are in breach of contract. Obviously the builder does not agree with the judge.

Is this why they are using the English system?

The letter is written in a threatening manner, continually stating that copies of judgments show all attempts to avoid payment in Spain have failed. If we don't settle then the builder will litigate either in Spain or UK.

Does anyone have advice to counter this claim? If the builder starts proceedings against us can we counter claim against them.

 

Thanks Colin





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18 Sep 2014 12:01 PM by Guadalupe. Lawyer Star rating. 261 posts Send private message

EOS Supporter

 

GM LEGAL EXPERTS WON CASE

 
HACIENDA BUENAVISTA (SIERRA MAR DEVELOPMENTS, MIJAS): BANCO POPULAR IS HELD LIABLE FOR BUYERS' DEPOSITS ALTHOUGH NO INDIVIDUAL OR GENERIC BANK GUARANTEES WERE GRANTED
 
Although no individual or generic bank guarantees were given, we claimed Banco Popular's liability under the provisions of the 1st article of the 57/58 Act First Instance Court from Marbella, because the account where deposits were paid into was really an special account, although Bank and Developer used the name "ordinary".
 
Our understanding is that the enforcement of mandatory laws must not depend on the good will of the parties and, obviously, should ensure protection for third parties acting in good faith (purchasers).
 
Luckily,  the Judge of the First Instance Court in Marbella was of the same opinion, and declared that account was really "special", no matter the name given by the parties, so Bank should have made sure that deposits were withdrawn just for building purposes, and should have also requested the delivery of bank guarantees for buyers whose deposits were paid into that account. Therefore, Banco Popular has been ordered to pay deposit plus legal interest to those purchasers.
 
This kind of judgements are unusual, but it seems that Courts are finally moving forward on purchasers' protection justice and their knowledge and awareness about the 57/68 Act is increasing.

 





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