Legal tip 552. Case Law on Banks liability when NO Bank Guarantee

  Legal tip 552. Case Law on Banks liability when NO Bank Guarantee 

20 June 2011 @ 21:50 

Very recent Case Law ( dated 3rd of May 2011) by Burgos Appeal Court

1.- Claimer requests both developer and Bank ( issuer of a generic Bank Guarantee) to provide the individual Guarantee and subsidiarily to refund the handed amounts plus legal interests.

2.- On Banks liability Judge interprets that the constitution of the guarantee is so essential that if it is not met, the buyer directly acquires rights for devolution of the handed amounts. Banks are obligued to restitution of handed amounts due to negligency for not constituting the required Guarantees.

So, if you bought off plan and claimed for refund of deposits, obtaining a win but finding an unsolvent developer who cannot pay you back, go and find possible liabilities of the Bank who issued the general Bank Guarantee and did not assure you had your individual certificate for the protection of your amounts. Banks where you placed your amounts are also liable for the refund according to provision 1.2 of Law 57/68.

Great for Burgos!

Playa de Areacova, Cangas de Morrazo, Rias Baixas, Galicia, Spain by Inmobiliaria Lares at Flickr.com

 We bought off plan with Aifos. We paid alot of money to take them to court. Paid to take an emnbargo on a property which we had to release. We shelled out again to get on the creditors list too. We won the court case, but were only awarded our initial deposit plus legal interest and are now being told we MUST accept the offer of 45% or we will get nothing. 

Our first solicitor actually told us we had a guarantee right up until we tried to get our deposit back, then he told us we didn't. So if there is any way we can get OUR money back from AIFOS or their BANKERS I'd love to know how we go about it WITHOUT paying out more and more money. We have already been bled dry.

 Has anyone considered suing the bank that fails to comply to the existing law (37/68)?

Leigh 

 Has anyone considered suing the bank that fails to comply to the existing law (37/68)?

Leigh 

Hi Leighroberts1.  Maria has written to us recently saying she and her team at Costa Luz Lawyers have decided that the best thing for us would be to sue the bank.  We won our action against Aifos in March 2010 but of course by then they were in administration.  We did not have a bank guarantee as the original lawyer, Alfonso Alvarez Asociados of Fuengirola, advised us that it was not necessary and foolishly we believed him.  So we now have to decide whether it is worth spending another 5000 Euros in the hope that Caja Mar will pay back our deposits.  This is a decision not to be taken without much consideration.  We were interested to hear that the Finca Parcs group won their case against the bank, but the bank is appealing so we may wait and see who wins the appeal.  The judgement is due in March 2013 I believe.  Any other cases won against banks should add weight and help us decide.

Dear Sirs,

 In the last years, we have obtained positives results going against the bank that have received the funds paid by the purchasers. Even when no bank guarantee has been issued.We have claimed against the banks in the north of Spain and all the cases were won. In some occasions, the banks negotiate before the claim is submitted because it has been already obtained a judgment where it is stated that the funds have to be returned. 

I do not know where you live because we have already meetings with people who are in the same situation, money paid and the property were not finished and no bank guarantee issued or they are told the bank guarantee issued is expired. We explain all the possible scenario and the possibilities. If you let me know the details of your case, I will let you know. Basically, it is needed the payments done to the developer and the contract. It is very vital to know that the payments went to the developer´s bank account. 

 Best regards 

Ana María Vázquez

amvazquez at urbalexabogados dot com

951 77 53 84

 My payments went direct to Aifos' bank account. We signed bills of exchange for our stage payments and have copies of the acknowledgements for these payments. It would be helpful if you would give me some information of cases that have been successful, how we would go about weeking recovery and an estimate of costs involved.

Brenda

A new judgement by COMMERCIAL COURT NUMBER ONE in Malaga has opened the way for many AIFOS creditors (among them buyers of properties that were never completed) to recover their money. Malaga Court has formally initiated the liquidation of the Spanish developer, AIFOS, allowing the Administrators of the Bankruptcy to present a plan about the builder assets; in other words, whatever the builder has left. It is unlikely that there will be much in the way of assets to be shared by the smaller creditors.

However, this is an important decision which will automatically terminate Purchase Contracts, leaving open the possibility for creditors to claim back bank payments which were and were not guaranteed under the law 56/1968. Some clients have not been able to claim and recover their credits yet as they did not cancel the purchase contract with the builder (one of the requirements from the law 56/68 is that before proceeding with the claim, the creditors must have cancelled the purchase contract first). Again, during this phase, the claim can be made without this requirement.

Those clients that voted in favour of the agreement but a judgement has forced them to wait to recover their money until the agreement is in force, will not need to wait anymore as under the liquidation phase, the agreement will be null and void. This mean, that clients who have voted in favour of the agreement can proceed now with their credit recovery.

The claim will be done to those banks where the deposits were transferred as they have the responsibility to guards the funds under law 56/68. We are actually taking legal action against banks on behalf of those clients who have and who have not bank guarantees, so if you want us to explain more about this situation, we will be more than happy to talk about your individual case.

You can contact us on 07712 129567 and alternative you can visit our web site www.ah-solicitors.com.  

There may be hope after all!

After 14 years have elapsed since our initial deposit, it seems like the banks are being held responsible for failing to ensure guarantees were in place when they took our deposits.

Our lawyers Antonio Jurado Solicitors in Fuengirola ( we are represented by Juan Manuel Colomina) have told us we have a hearing next week and a chance of some recompense and even some interest on our money.

I will update the forum as the situation develops- fingers crossed!!!!

Well, we got our judgement against the bank who have been ordered to repay the full deposit and interest!

They have 20 days to appeal so we'll see what happens next!!

Mike,

Has the 20 days elapsed yet? Any appeal from the bank?

Hi,

The 20 ( working) days only lapsed on Friday so I am  still waiting to hear.

I expect to hear any day now but if I were the bank I'd appeal, appeal and appeal or they will have to accept we are all owed a refund.I did hear last week that the Supreme Court has upheld a similar claim, so " watch this space" as they say!

Mike

Hi Mike, our case against Banco Popular and Santander re.Aifos El Balcon del Hipodromo is scheduled for its first hearing in November. 

We were not given bank guarantees. We think our Spanish solicitor at the time was negligent at least if not in cahoots with Aifos as he told us we didn't need one when dealing with such a big company with so many assets. How naive were we!

Looking forward to further updates on your case.

Olwen

Blackbird

That is exactly what my solicitor said to me, verbatim?

Is he from the Malaga area by any chance?

Paul

H

Hi all,

Well, as expected, the bank has appealed but after waiting 14 years already, I guess we can hang on a bit longer??

Hi Paul, my solicitor was from Fuengirola.