DAVID HAMMERSTEIN - MEP

To All Finca Parc Investors in Danger of Losing Their Money - Please Read Below & Get in Touch NOW!

Reply to Inspectahomespain

" I am not sure how to explain this to you but the direct response is if you do not have a BG then there isn´t one for your property and there is NO POINT contacting the bank because it is nothing to do with them" ???

I cannot undrestand how such a statement can be made given the following facts:

1. The Finca Parc project was financed by CAM Bank and all investors paid their money into an account held in the CAM Bank. Without the CAM Bank there would have been no project, no investors and no contracts to sign! So the idea that CAM Bank can accept investor monies into accounts held at their bank in accordance with contracts signed by investors with Cleyton Ges and then claim that the contracts have 'nothing to do with them' is ludicrous!

2. Spanish law is absolutely clear - no sale without a BG - Therefore by accepting investor money and failing to issue BGs in accordance with the CAM Bank's own contract with Cleyton Ges, the investor contracts, and the law means that CAM Bank has broken Spanish law. According to Cleyton Ges, CAM Bank bluntly refused to honour their legal and contractual obligation to provide BGs to investors whose money was being paid into accounts held at CAM Bank. CAM Bank is under a legal obligation as the financing bank of the project and the bank in receipt of investor funds, to issue BGs, to investors the moment the contracts were signed and the money received by them!

Furthermore, Cleyton Ges explicitly informed investors that the money would be held in an escrow account. This would mean that the money invested by people in Phase 3-4 should have remained untouched, since no building licenses have been issued for Phases 3-4!  However, my understanding based on a recent discussion with a director of CAM Bank is that the money was NOT in actual fact held in an escrow account. So yet again investors have been deceived by CG and CAM Bank!

Conclusion

Both CG and CAM Bank have acted illegally by accepting investor money and failing to issue BGs. They are therefore liable to prosecution under Spanish law. CAM Bank as the Bank responsible for financing this project is legally required to immediately issue BGs to ALL investors in this project whose money is held in their Bank.

I STRONGLY urge anyone who has invested money in this project but who has not been issued with a BG to contact me asap, irrespective of whether or not you currently have a solicitor representing you. I am compiling a list of all investors who are in this unfortunate position with all the details of each case. The objective is for investors to present a united front in order to strengthen our position as we endeavour to seek justice in this case.

This message was last edited by Frik on 19/07/2009.

This message was last edited by Frik on 19/07/2009.

This message was last edited by Frik on 19/07/2009.

This message was last edited by Frik on 19/07/2009.

Please don´t thnik that I am having a go at anybody however I have a question which I believe should be answered and this is, are the statements that you are making regarding THE LEGAL obligations of the CAM Bank being made after you have received confirmation, from a legal professional, or just your view on the situation and have you employed a lawyer and instructed them to take action on your behalf

If you have not employed a good lawyer, why not, why didn´t this happen a year ago when these problems were known

I would like to add some comments on this as although I am not a buyer the advice that I try to provide is based on practical experience of having people I have helped who have had similar problems

The first point is is the developer that has failed to honour their commitments regarding the build times and the BG´s and the bank will be more than legally covered and if you don´t have things in writing then you don´t have any rights to enforce anything

it is also the responsibility of your lawyer to ensure that they have protected your interests by getting the BG´sbut there doesn´t seem to be any mention of them in these threads

Spain has a very complicated legal systems which is why I gave the advice regarding contacting CAM and I maintain mt belief, and it seems that from your conversations with The CAM Bank, and it would be interesting if you pubished more details of your conversations, but I am CERTAIN that they would have told you to go back to the developer as it was not their responsibility

If you ask CAM I am certain that you will find that there is no contract in place with CAM than requires CG to provide a BG. chances are CAM can have reduced their risk and loans to CG because deposits have been used to fund the build 

I know that The Bank has legal conditions that remove their legal liability for statements made by promoters regarding BG´s

Chances are you didn´t sign a CAM Bank contract you would have paid your money into a CG account with the CAM Bank, please check this, was your payments cheques etc made payable to CG. People pay me into an account held at the Cam Bank but if I fail to provide a service it doesn´t make them responsible for my failings 

The biggest problem is that you cannot get money back if the developer has used it, regardless of the legal situation, the longer you leave things the worse it gets,as on numerous other developments. If the company goes into administration you just become another creditor, on a list behind the banks and government

You mention the media, forget it, if you can get them to run something in my experience it doesn´t make any difference longterm and is soon forgotten even wuth the re-runs, do we remember Watchdog and Polaris World no, did it change anything

My next question is have you actually employed a lawyer, have you had a lawyer look at the paperwork and give their views regarding a potential action, if not why not, and why is it

I thank everybody for sharing information on this site, otherwise the situation for all could be far worse.

As this is a discussion forum, I thought I might put forward some views.

I just wanted to ask Inspector Home's about  his view that bank guarantees are the responsibility of an individual to obtain.  If its in Spanish Law that developers and thier banks provide a Bank Guarantee, then maybe in this case, there wont be the need by individuals to provide evidence of one.

The whole project is financed by CAM bank, including probably financing the purchase of the land in the first place. CAM bank have already issued quite a few guarantees and even returned some deposits . So its quite obvious who the developer is and who is financing.

Are you saying , Inspector Home, from your experience that Cam Bank  can say that Bank Guarantees, if some didn't get them, are not their responsibility ? And that it is up to the developer to get them and inform them. (of who gets  guarantees and who doesn't ??)

Do you think the developer can say also that it's not their responsibility to issue a Bank Guarantee to everyone and its up to  individuals and their lawyers to persue one from them?

Going back my original point. Apart from making it easier to claim, would you really need any Building Guarantee in writing if its already stated in law?

It must be clearly stated in Spanish Law, the framework, the time frames, secured deposits, what the developer is allowed/ not allowed, bank committments etc etc. it wont vary contract to contract.

If its compulsory in law for the developer to issue a BG then its compulsory that an individual receives it and therefore, I expect, deemed to have been received by all.

The response to this is very simple as it is the responsibilty of the developer, not the bank to issue a BG to the buyer and often on larger developments a number of different banks may have issued the BG

It is also the responsibility of your lawyer to act in your best interests to ensure that you have all of the necessary legal paperwork and to keep you advised including the BG hwich they must be able to prove that they have requested on an audit trial

Lawyers should have professional liability insurance and there are a number of cases going through where individuals are sueing their lawyers as the developers have gine into receivership

If you don´t have a BG in writing then you don´t have a BG as the way that banks treat the money is very different, it is ring fenced in an account and the developer cannot touch it so this is why some money has already been paid out on those that have been issued

BG cost the developer money, they cannot use the money to fund the build and what normally happens is that the bank will loan against the BG money that they hold in their escrow accounts, nit normally 100% of the money held

The developer cannot say that it is not their responsibility, they cannot blame the bank and it they break this condition they have broken the law but the problem is that all that happens is that they will be be fined which doesn´t help all the people who don´t have a BG

If the developer does not have funds to place with the bank, to cover the outstanding BG´s, then there is no way that you will evevr get one

Again you CANNOT CLAIM or involve the bank unless you have a written BG so the developer has broken the law, they can be taken to court and fined

Hi Inspector Homes

Thanks Inspector Homes for your advice. It is surprising that the bank can waive responsibility for BGs to some. I suppose it is conceivable that a developer is going to avoid  BGs where it can, as you say, it makes their development more expensive if they do give BGs. Especially if they fail to deliver.

Its a shame the responsibility does not extend beyond the developer to include the sponsor. I guess the bank maybe a stakeholder in the land but not exactly a co-owner of properties being built. Can't help thinking if this was a development in the UK a major bank would not get involved financing a developer if it thought the developer was breaking the law. it would be like throwing themselves into a minefield.

I dont necessarily believe CG will go bust, but I have friends who are in the later phases and have NO bank guarantees. According to you, they look like they will be left high and dry.

If CG go bust...dare I say it....wont the land  simply be repossessed by CAM bank?   Will investors still be ok as the land is sold on to another developer with all the committments still in place? Maybe a deal between the new developer and investors would take place?

Julian

What will normally happen is that if somebody starts a legal action the first thing that a doos lawyer will do it put a charge on the land and completed properties that have not been handed over to secure the debt

Same for government or local authority debts

The responsibility does extend beyond the developer to the lawyer who should have obtained this to protect the interests of the client

If the developer goes bust or just pulls the plug on the later stages of the development as with La Tercia Real and Ochando people without any BG have to legally fight for their money back

People on later phases should be chasing their lawyers for BG´s