Confirmed: Buyers deposits for Herrada del Tollo, San Jose covered by generic guarantee policy

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31 Mar 2011 00:00 by Guadalupe. Lawyer Star rating. 261 posts Send private message

EOS Supporter

 I am really happy today, because I can confirm to buyers of "Herrada del Tollo SL", "San Jose Inversiones y Proyectos Urbanísticos", and "Inversol Grupo Urbanistico" that their deposits are covered by generic guarantees.

Yesterday, a Eye on Spain forum member posted me some paperwork he got from his agent, because he wan't sure about how important they could be. I was really astonished when I saw them, because they were:
 - a certificate from SGR  about the existence of a generic bank guarantee for Herrada del Tollo.The certificate states that the guarantee is not made to cover just particular developments or properties, and settles a maximum amount as a limit (6,5 millions euros). 
- A copy of the first pages of three Generic Guarantees contract signed between Banco Pastor & San Jose Inversiones y Proyectos Urbanísticos (in one of them is also included Inversol Grupo Urbanístico). On the contracts there is not mention to which developments are covered by the guarantee, and settle a maximum amount as a limit (26 millions of euros!).
 
As posted previously, I had knowledge of the existence of a generic guarantee agreed between SGR and San Jose Inversiones, and I was sure that there was another for Herrada del Tollo, because I have represented clients from HDT who enforced individual bank guarantees issued by SGR, and no individual guarantee is made by a Bank if there is not a previous agreement signed with the builder (Generic Guarantee, called "Póliza de Contragarantía" or "Póliza de Contraaval" in Spanish). But now I can confirm that the generic policy for HDT exists and, in addition, I can report everybody that the generic policy issued by SGR for San Jose is not the only one which covers the buyers' deposits, because there is a "massive" policy from Banco Pastor as well.
The above means that any deposit paid to Herrada del Tollo, San Jose or Inversol is covered by a generic guarantee, because the amount limit doesn't apply to the buyer, as long as the art. 7th of the 57/68 Act states that the rights ruled by that law cannot be waived. As the generic policies don't mention which particular developments are covered, the decision about which deposits did get an individual guarantee, and which ones didn't, was taken by SGR-BANCO PASTOR and HDT, SAN JOSE OR INVERSOL arbitrarily, without buyers' knowledge, so the negative consequences of an agreement in which the buyers weren't involved must not be suffered by then.
 
** EDITED - Against forum rules **

 

 



This message was last edited by EOS Team on 01/04/2011.



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31 Mar 2011 15:09 by ads Star rating. 3099 posts Send private message

This sounds amazing Guadalupe and begs the question what other "generic" guarantees exist to protect others in the real estate sector in Spain?





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31 Mar 2011 22:43 by nweatherall210 Star rating in Scunthorpe, England .... 74 posts Send private message

nweatherall210´s avatar

Guadalupe,

that sounds like great news. I have the exact same paperwork, but I have been previously advised by two Spanish lawyers that it goes to nothing and cant be used to force a repayment of the deposit sums paid to HDT.

As a lawyer are you now saying \ advising that this is not the case and the documentation can be used to force a repayment of the deposit sums direct from the Bank either directly or through the courts?

Please advise.

 



_______________________
All the best, Nigel & Jo. nweatherall210@hotmail.com



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31 Mar 2011 23:16 by mariadecastro Star rating in Algeciras (Cadiz). 8857 posts Send private message

Legal Questions? Speak to Maria Direct

 Really good news for all Herrada del Tollo and Santa Ana buyers



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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04 Apr 2011 20:54 by nweatherall210 Star rating in Scunthorpe, England .... 74 posts Send private message

nweatherall210´s avatar

I have now heard back from Guadalupe @ GM Legal and she has asked me to post the following note on the forum as she is having trouble with her EOS account.

The news is very positive and GM Legal are now commencing a Class action for all interested parties. I have also had a second opinion from Maria De Castro who has advised of a similar view.

Obviously taking furtther legal action is very much up to you guys as individuals to consider , but for us this is the best positive news we have had in two years, & for people without specific Bank guarantees I personally think its got to be worth a try.

Guadalupes email  below : >>>>>>>>>

About the low cast class action grounds:

 A generic bank guarantee is an agreement signed between the Bank and the Developer, in which the Bank agrees to deliver bank guarantees for the deposits paid to the builder, and the developer accepts to refund the Bank the amounts covered by the guarantees if he breaches the contracts. The generic guarantee can specify which development (or phases of a development)are covered, or even settle a limit for the amount of deposits covered. So basically is a document where the Bank commits to give a bank guarantee for every deposit paid to the developer by buyers. This means that no individual guarantees are given unless a generic guarantees has been previously signed between the builder and the Bank.

 It seems that the generic guarantees signed between DHT and SGR doesn’t include any reference about which developments are covered, the guarantee is extended to any deposit pay for any resort. You have to bear in mind that SGR provided guarantees for several buyers of HDT in Santa Ana, whose contracts were exactly like yours and paid to the same BBVA account, under the provisions of the generic guarantee. So there is one thing we can assure: the generic guarantee covers the resort Santa Ana del Monte, because individual guarantees wouldn’t have been given to buyers otherwise.

 The generic guarantee made by SGR settles a maximum amount limit, 65 millions of euros, and when they get opposite to my claim they will probably allege that the maximum amount has already been reached, so they are no longer liable. My opinion is that the “amount limit” is against the provision of the 57/68 Act. SGR is a financial entity, but they just provide financing and not banking services (accounts, etc). So the fact that the deposits were not credited in a SGR’s account is not relevant, because SGR does not provide banking services. Therefore, SGR and DHT did not follow any criteria to decide which deposits paid for Santa Ana were guaranteed, and which weren’t. It was just an arbitrary decision. Consequently, SGR’s liability could be claimed,  as long as the art. 1st of the 57/68 Act states that bank guarantees must be delivered to every buyer of an off plan development and the bank must control if guarantees are given to buyers, and the art. 7th states that the rights established by the law can’t be waived. If their excuse is that the deposits were not paid to them because they don’t provide banking services, they should have established additional control systems to make sure that every buyer  got an individual guarantee.

 Before bring a civil action against SGR, I will file a preliminary enquiry, to request them a copy of the generic guarantee (general and particular conditions) and to make sure that any if my clients is the holder of an individual bank guarantee which wasn’t given to him (please note that Banks are forced by the law the keep copies of every individual bank guarantee given). As explained on my post, what we have now is a certificate signed by SGR, and also an email from HDT which confirms that the generic guarantee is not for an specific development or phase. Even we will probably find that on the particular conditions of the generic guarantee is established that SGR will provide guarantees for the deposits paid on the BBVA account  hold by HDT mentioned on the purchase contracts.

 As many buyers seems to be interested, we can bring a class action. To make everybody possible to join this action, the provisions of funds requested by GM will be just € 700 (instead of the standard €1,500).

 Please let me know whether you are interested on joining the action.

End.

For those interested her contact email is : guadalupe@gmlegalexperts.com and web address is www.gmlegalexperts.com .



_______________________
All the best, Nigel & Jo. nweatherall210@hotmail.com



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15 Jan 2013 10:29 by carolinemills Star rating. 27 posts Send private message

Hello to all,

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

 





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