Last January Resort Tres Molinos S.L., was called for Meeting of Creditors, leaving many purchasers who never got their bank guarantee really upset about their deposits.
Fortunately the Meeting of Creditors is not the only chance that buyers have to get deposits refunded. As I explained on previous posts, the Article 1 of the 57/1968 Spanish Act states that funds paid in advance by purchasers must be credited into a Special Account held at a Bank or Savings Bank. The Special Account must be separate from any other account held by the developer and must only contain funds deposited for the construction of dwellings. It is the responsibility of the Bank or Savings Bank to ensure that the Special Account is opened and must either issue the aforementioned Bank Guarantee themselves.
So Bank liability can be claimed as long as there are evidences that Bank was aware that the account was held by a builder and the money credited into it came from buyers.
In the "Resort Tres Molinos" funds were transferred into a builder's account openned in Banco Santander, who issued Bank Guarantees for many of them.
An individual Bank Guarantee is the consequence of a previous agreement between the builder and the Bank, which it is usually called"General Bank Guarantee policy". This general policy rules which properties' deposits are covered by the guarantee (one phase, the whole resort...) and the commissions that the builder must pay to the Bank for every individual bank guarantee.
Therefore, the grounds upon Bank Santander may be claimed liable, are:
- The Bank issued individuals guarantees for many purchasers, so this means that they agree with the builder to guarantee properties' deposits and, consequently, they have knowledge that "Resort Tres Molinos SL" was a builder company. This conclusion is additionaly supported by the "General Bank Guarantee" the builder and the Bank signed, which could extends the Bank's Liability to the whole resort.
- The Bank never requested to the builder information about the purpose of the money withdrawed from the account (never made sure that it was expended for building issues).
- Most of the purchase contracts stated that any deposit paid into the Bank Santander's account will be guaranteed.
- The Bank Santander was supossed to be the Bank providing financing to the development and arranging the builder's mortgage.
Should you require further information about this particular matter, please do not hesitate to contact me.