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

Can you tell us when this sentencing was passed and where did you obtain the Generic Bank Guarantee from. Perhaps this ruling could help our case.

Yet the same lawyer lost the case against La Caixa / Trampolin Hills with the same circumstances.

Where is the consistency ?

Dear M11block: 

Please find below the references that you can provide to your solicitor to get copies of the sentences mentioned on the post

AP Cadiz, Id Cendoj: 11012370052012100415

Nº de Recurso: 360/2012

Nº de Resolución: 454/2012

AP Madrid, Id Cendoj: 28079370102013100067

Nº de Recurso: 644/2012
Nº de Resolución: 78/2013

Hope it helps

Dear billyboy99: the fact that you win a case for generic bank guarantees enforcement doesn't mean you would win all of them. Every case is different as long as the plaintiff is different. In your country works same. That's why lawyers cannot commit 100% successful rate.

And the case you mention is not lost yet. We are still waiting for the Magistrate Court's ruling.

I last posted to this thread on 6^th June 2012 when my claim against Banco Popular for the enforcement of my bank guarantee had just failed due to the fact that the court office lost my original documents.

We originally won our claim in 2006, but Banco Popular appealed on grounds that the lawyer at the time did not correctly follow procedures as required by Ley 57 and the court reversed their decision.

In Feb 2011 we re-submitted the claim but lost because we were forced to attach copies of the bank guarantee and purchase contract as the originals were never returned after the original claim and despite several requests to the court office they were unable to locate the documents.  My lawyer eventually found the originals in a pile of unfiled papers in ta Madrid court office and submitted these to the court to be attached to our appeal.

The court failed the appeal, in spite of now being in possession of the originals, again because the originals were not submitted when they should have been. On this occasion the judge had all originals in front of him and had indicated at a pre-hearing that he had all he needed to proceed with a judgement.

We started  all over again and re-submitted the claim this year.  A hearing took place in May 2013. We won the claim against the bank and they were ordered to honour the guarantee and refund deposits with interest.

Once again the bank appealed the decision, claiming that because Licences of Occupation were issued in June 2012 (7 years late) the bank guarantees were no longer valid and because we had made a previous claim – in 2006 using the executive process, this option was no longer available to us and we should be using a litigation process. The court again reversed the decision so once again the we had another failed case.

At the hearing in Feb 2011 and the appeal in June 2012, there was no objection to the process so the court accepted the process 3 times and even proceeded with a hearing and judgement before allowing the bank’s appeal and reversing the judgement.

This should not be happening!  The bones of the case are that the developer have breached the contract by 7 years, the bank guarantee was perfectly valid when we cancelled the contract and first attempted to enforce the guarantees and all these technicalities which allow the bank to appeal and have the court’s decisions reversed are unimportant and should be rejected by the court in the same way that they rejected my claims when it was their office that lost our documents and forced us to submit copies.  A bank guarantee anyway is simply a piece of paper – it is the number of the document that is of importance as it is this that is registered with the Bank of Spain and can easily be checked for its validity.

The behaviour of Spanish courts is disgusting.

I now have the option to proceed with litigation against the bank for failing to honour guarantees, for lying on paper and under oath – they have claimed all along that the licences had been issued, yet these were officially issued by Marbella Town Hall in June 2012 – and for fraudulently withholding monies which they have promised to pay out under the terms of their guarantees.

Dear Guadalupe,

Thank you for your educative posting.

I wonder how long have you been waiting for the magistrate court's ruling?

Are you reporting any excessive delays to the authorities so that statistical evidence can be more accurately monitored?

Likewise, are you reporting any factual evidence of compromsing instances relating to consumer rights to the National Institute of Consumers?

So long as we hear and witness inconsistent rulings (such as Mike's below) and the incredible lengths that innocent consumers have to go to, to gain justice against the Banks (and developers) in Spain, the longer the message of BUYER BEWARE will remain. Especially when we recognise that we have been denied inalienable rights.

All too many of these cases against Banks and developers that are being compromised by delays and/or inconsistent rulings are being hidden from view, and what is needed is for good legal professionals to come together with a more cohesive plan to bring ALL of these instances relating to their clients to the attention of the authorities.

They should not remain hidden from view any longer.

Until such time as adequate time constraints are put in place to ensure regulatory proceedings are conducted in a timely way that respect the due process of law, then respected law firms who are experienced in these lawsuits against Banks/developers need to bring these matters to the fore and push for a fast track approach with consistent rulings via a specialised court (as Keith Rule has advocated in his BG petition text).  Only then will the Spanish Justice system regain the trust of innocent consumers, who have been fighting for their inalienable rights FOR YEARS.

It needs to be stressed that the status quo is no longer proving a viable option for many, especially as more lawsuits against the Banks are submitted and so long as these legal inconsistencies remain.

Apologies for this rant, as I and many others are aware of the good work that you and Maria are doing in this regard, but without prioritorising and highlighting the need for basic timescale constraints (deadlines) on the various legal procedures necessary to protect consumers from abusive delays (i.e. delays relating to preliminary hearings, 1st instance rulings, preliminary enforcements, appeal rulings, delays from the courts for return of monies as per final rulings, return of interest and costs, Supreme Court etc), and adequate monitoring of legal inconsistencies (which incur increasing costs, not to mention additional stress associated with lengthy battles for justice), then the innocent consumer will continue to be compromised.

All of these facts need to be consistently fed back by the legal representatives as complaints to the relevant authorities, otherwise this "legal lottery" in Spain will sadly continue to be exposed to the wider media and press and external organisations such as the World Justice Project, which does a grave disservice to those good professionals, such as yourselves.

Please help us all by consistently reporting back these instances to the relevant authorities and please strive for a more specialised fast track approach to make the Banks/developers truly accountable by enforcing Ley 57/68 in its entirety.

This doesn't sound like an adequate disincentive to me.

It would be interesting therefore to know on what grounds they based this ruling and the reason why the judge chose not to award costs and adjust interest. Is it possible to identify this?

Many thanks Sandra.