Generic Bank Guarantees

Maria

I would be very grateful if could you clarify something relating to generic Bank Guarantees.

If you have a successful first instance ruling for breach of contract against a developer that has not gone into administration (but has asset stripped or hidden assets), and have gained a successful resolution against the developer's appeal, and you have a copy of the generic Bank Guarantee for the development (but no individual BG), does this then imply that you can simply enforce return of monies, as per the existing successful judicial rulings, against the Bank that provided the generic Bank Guarantee?

Or would you need to bring together a joint action against the developer and Bank (as in Keith's situation) to gain a successful enforcement for return of deposited monies and costs etc as per existing rulings?

Many thanks.

 In that case that you are describing, the case will be just against the Guarantoor

Kindest,

María

Thank you Maria. Much appreciated! 

Would the case be against the guarantor (the Bank) if the developer still had assets to dispose of?

Hi Ads

If initially you just took legal action against the developer and have a first instance decision against the developer and/or an appeal court decision against the developer then your next action will only be against the Bank.  Your Lawsuit against the Bank would make reference to the successful First Instance and/or Appeal Court decision against the Developer.

You would not need to take legal action again against the developer as the original judgment is already there.

The next action would just be against the bank.

The best way for those not yet started any course of legal action would be to file a joint Lawsuit against both the developer and the bank.

So to summarise:

If you have a successful First Instance Court decision against the developer and the developer has not appealed and for whatever reason you are unable to execute the judgment then the next legal action would only be against the Bank who issued the Generic Bank Guarantee or if there was not a Generic Bank Guarantee, against the Bank who 'knowingly' accepted the off-plan deposit.

If you have a successful First Instance Court decision against the developer, the developer appealed and you then have a successful Appeal Court decision against the developer then follow the above scenario.

If you have never previously taken legal action then the best way forward would be to take a joint legal action against the Developer and Bank. 

But remember, all cases are different.  To pursue a claim against the Bank you must have certain evidence, proof of payments to the bank, possibly a generic Bank Guarantee etc.....

I am sure María will correct me if I have made a mistake in any of the above scenarios.

Before making a decision or taking any legal action I would strongly advise that you take independent legal advice.

Kind regards

Keith

All correct Mr. Rule. You already know much more than me on these matters!

This is not Justice! -

This message was last edited by mike_congress on 06/06/2012.

This is disgraceful and a complaint  surely needs to be brought IN WRITING to the CGPJ immediately (with retained copies) plus full case details need to be sent to your local MEP's (www.writetothem.com ).

I wonder how many more are being subjected to failure of justice due to "technicalities" born from Spanish court incompetence?

It's imperative that all new evidence of this nature be reported also to Keith's petition www.bankguaranteesinspain.com which may subsequently be sent to the World Justice project and European Commission amongst others?

I would be interested to know if the existing administrative system provides law firms with any formal acknowledgement of receipt, itemising the documents received relating to individual cases? If not, then might a practical solution in the interim be for law firms to request (or demand!) detailed confirmation of receipt to ensure that problems of this nature are not repeated?

Thanks Ads for your reply.

Yes it is disgraceful! - I feel that tyese judges have not even attempted to apply justice but have simply searched for a reason to cause dismiss the case.

As you suggest, I will lodge a complaint with the CGPJ, but I expect they will just ignore it in the same way as do all other authorities in Spain.  As for writing to politicians, I think it's just a waste of time as they will simply look up their book of standard replies and respond with - 'we do not get involved with individual cases' ......'it doesn't fall within our remit' ....'we cannot interfere with the judiciary of another member state'  ...etc - no matter who you ask for assistance in the UK, these are their standard replies.

Do you know what the procedure is for submitting a complaint to the CGPJ, and does it have to be done in Spanish

I propose to start a new thread referencing this case as yours is the only reply on this one. Maybe I can get more visibility with a more relevant title.

COMPLAINTS TO THE CGPJ

ONLINE COMPLAINT FORM:

http://www.poderjudicial.es/portal/site/cgpj/menuitem.178d5a0b03ac7b23737c9ad3dc432ea0/?vgnextoid=1fe4f52e02cdd210VgnVCM100000cb34e20aRCRD&vgnextchannel=4d7b93841e3eb210VgnVCM100000cb34e20aRCRD&vgnextfmt=default

Hi everyone,

I have been posting to many forums but I think that if I received my deposit from bank guarantees you can receive it too.
As I see that many of you had problems with the deposits you gave to Herrada-San Jose, I must say that my lawyer in Spain won my case regarding the guarantees. As most of you, we didn't have any individual guarantees to our name, they were just general guarantees.

I know that every client has the same right as me so I asumme that you can recover this back too.
We won against the banks Banco Pastor, BBVA and SGR and they already paid our guarantees back.
I am really happy with the work done so if any of you looks for any legal assistance I can give you my lawyers email address or if you have questions you can write to me caroline.mills36@yahoo.com

I hope that everyone can be so as lucky as me

Caroline