Getting the money after judge finding in our favour.

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28 Dec 2011 00:00 by coleen Star rating. 74 posts Send private message

 Hi all,

And Happy Christmas holidays.

My questions is this:  is there anything we can do to get our money from a developer who has been found by the Spanish courts to be in breach of contract on a development where we bought off plan?  In other words, the judge found in our favour, even after the developers appealed twice but we still have not received any money three years later.  

I can appreciate the fact that if the developers were forced to pay the money back to everyone, then it would potentially make them bankrupt. And if it came down to it, maybe I would rather wait than be offered a very small percentage.  However, our investment was large (not just one apartment) and we have paid thousands to a solicitor in order to pay for the original case and the two appeals. We are in a very precarious position financially ourselves now and there doesn't seem to be any upturn in the european economy in sight anytime soon. 





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28 Dec 2011 11:38 by Keith110 Star rating in the UK and I am lead.... 682 posts Send private message

Hi Coleen

Do you have a Bank Guarantee for your deposit?  Have you executed the Bank Guarantee?

It seems that getting judgement against the developer is the easy bit.  But all too often it is almost impossible to execute the judgement and obtain a return of the money.  As you say the developers are either bankrupt or have asset stripped.

Have you considered taking legal action against the Bank who funded the developer and accepted your off-plan deposit?

Kind regards

Keith




 



_______________________

LEY 57/1968
CLICK HERE FOR THE BANK GUARANTEES IN SPAIN WEBSITE

       
      

fpag@btinternet.com




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28 Dec 2011 14:33 by coleen Star rating. 74 posts Send private message

 Hi Keith,

Many thanks for your reply, it's nice to know there is somebody out there who gives a whatsit!

But no, we didn't have a bank guarantee.  We completely trusted the estate agents who are a big company in the Canaries and who assured us that they 'wouldn't let us sign anything that we shouldn't.'    So we didn't know of the existence of the bank guarantee being a legal requirement until it was too late. 

We haven't really considered taking legal action against the bank but to be honest, another court action would be a scarey prospect in terms of us funding it.





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28 Dec 2011 15:39 by mariadecastro Star rating in Algeciras (Cadiz). 8857 posts Send private message

Legal Questions? Speak to Maria Direct

 If you can find about the existence of a General Bank Guarantee, you may avoid a new judicial trial



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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28 Dec 2011 16:57 by ads Star rating. 3098 posts Send private message

Maria,

Please could you explain a little more about the procedure relating to generic Bank Guarantees.

Does your last reply mean that if a Bank provided a generic BG for a development, then by law they have to return deposited monies (once the developer breach of contract has been proved) without the client having to go to another judicial trial?

Does the Bank have any leeway under these circumstances? What happens if the Bank for instance appealed a successful ruling or didn't agree to any such settlement, would it then have to go to judicial trial?

Also if the developer appealed the first instance ruling would the client then have to wait until the developer appeal was resolved before the claim could stand against the Bank?





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28 Dec 2011 21:22 by coleen Star rating. 74 posts Send private message

In our situation, the developers appealed twice and it was still ruled in our favour.   Now the case has been heard three times, so I would have thought that the bank could not appeal in what would be the same case.

There was a creditor's meeting about 9 months ago but no information came our way about the results.  I think everyone was hoping that if they played a waiting game, the economy would pick up but it just isn't going to happen.  And as far as I know, the developers are still solvent - but they wouldn't be if they were forced to pay out. 

 

 





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29 Dec 2011 10:26 by Keith110 Star rating in the UK and I am lead.... 682 posts Send private message

Hi Coleen

I would do what María suggests in her post below:

Speak to your Lawyer and ask them to make investigations to find out if the Bank issued a Generic Bank Guarantee covering all deposits for your development.  If it is a large development there maybe other Lawfirms who already have this information and will be willing to share it with your Lawyer.

If not, I would then speak with your Lawyer and........given that they must already have all the evidence and documentation (contracts, bank transfer documents etc) for the original lawsuit against the developer........I would ask them to give you a reduced fee for filing a Lawsuit against the Bank who accepted your off-plan deposit.  Your case against the Bank will be based on their liabilities under LEY 57/68 in particular Article 1.2

Kind regards

Keith



_______________________

LEY 57/1968
CLICK HERE FOR THE BANK GUARANTEES IN SPAIN WEBSITE

       
      

fpag@btinternet.com




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30 Dec 2011 17:36 by coleen Star rating. 74 posts Send private message

 Many thanks Maria for your reply and suggestion of a General Bank Guarantee.  

Also thanks Keith for your reply.

I will ask the solicitor to look into this avenue for us and see if he could pursue it on a reduced fee basis.

I also saw the online petition with regard to bank guarantees, and i will be completing that.

Before we went to court over this, I was in contact with one or two other people who also put down a deposit on the same off-plan developement.  Of the ones I had contact with at the time, all of us had the same contract.  Two ended up going to a solicitor to draw up an agreement that they gave up any rights to the deposit, one simply couldn't afford to do anything and one other was hovering.   But if I could get a group action - or just two of us - that would help.

Also, the solicitor had the list of people who were/are owed money so maybe that would be a source to find someone else. 

Thanks so much for your help, it really is desperately appreciated. 





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30 Dec 2011 19:29 by mariadecastro Star rating in Algeciras (Cadiz). 8857 posts Send private message

Legal Questions? Speak to Maria Direct

 Very best of lucks and fight hard!



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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30 Dec 2011 20:12 by coleen Star rating. 74 posts Send private message

 Dear Maria,

Many thanks for your support.  I will fight hard, but against these giants who do not follow the law, it is very hard! Perhaps we have to be like David and Goliath.

I have sent you a PM asking for your advice. 

 





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31 Dec 2011 09:29 by Keith110 Star rating in the UK and I am lead.... 682 posts Send private message

Good luck Coleen and thanks for joining the petition. If your Lawyer has full list of the victims then he should be able to form an action group to file a joint lawsuit against the bank. One question - is your Lawyer independent or was he recommended by the developer or agent? Kind regards Keith

_______________________

LEY 57/1968
CLICK HERE FOR THE BANK GUARANTEES IN SPAIN WEBSITE

       
      

fpag@btinternet.com




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31 Dec 2011 12:31 by coleen Star rating. 74 posts Send private message

 Hi Keith,

The solicitor we used was one we found ourselves.  How I wish we had found Maria first because there is no question that we would have asked her to take the case. 

We did mistakenly think that the estate agents who are English and based in Tenerife would help us with this large problem as we put down a deposit on more than one apartment, and asked them for a suggestion of a solicitor.  They did supply us with a couple of names but as it happened they were not available at the time and we urgently needed someone to take the case as the developers only gave us a few days notice out of the blue requiring us to complete.  We  had only just been to see the development two months prior to that and it was far from ready, so we were really taken by surprise.

Perhaps we have been lucky with our solicitor because he has secured us a victory 3 times following the appeals but it is not his area of expertise and now tells us that he has no experience of creditor's mettings, etc. which is the situation we now have.  so he  might not be able to fight our corner on this as well as I would like, plus we can't really afford to pay him any more for this ongoing situation. 

Just thinking about the petition though, I know that the date for closing it is imminent but if it could be stretched to another month, then it might be worth putting something on the two Tenerife forums because there are certainly people there who have been affected.

For anybody who is in a similar position and reading this, just for the record about deposits and bank guarantees on off-plan developments, our estate agents told us when we suggested pulling out after the works were 2 years overdue, that  'of course we would lose the deposit, why would we think anything different?  This is the same law as in England, so yes you will lose the deposit.'

When we originally suggested taking the case to court citing late completion, they said we woudln't stand a chance. It almost felt as if they had a vested interest in us loosing the deposit because they also refuesed to reduce the sale price of the property when we tried to get them to sell it. 

And a Bank Guarantee was not in the contract which they supposedly checked to be safe for us to sign.  Let the buyer beware! 

 





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31 Dec 2011 14:39 by Keith110 Star rating in the UK and I am lead.... 682 posts Send private message

Hi Coleen

OK, it is good that your Lawyer is independent from the agent and developer.

From my experience and from the information collected so far in the Bank Guarantees Petition I am sorry to say that it appears that Agents were only interested in one thing - THEIR COMMISSION.

The petition replies clearly show that most agents who were selling off-plan properties had little or no knowledge regarding Bank Guarantees and LEY 57/68.  The petition also provides damming evidence to show that the majority of agents, once the initial contract was signed, failed to keep in contact with the purchaser and failed to update the purchaser as to progress on the development.

You say that despite your development being 2 years behind schedule your agent still told you that you would definately lose your deposit if you pulled out.  This is scare tactics.  Of course if the property is delivered 2 years later than the contracted completion date you have a valid case for contract cancellation and a full refund of your deposit.

The Petition also shows that most Lawyers were recommended by the Agent or Developer and therefore clearly had a conflict of interest.

Your Lawyer has won your case against the developer, which is good, however as in the majority of cases this does not result in the return of your deposit.

Being part of the creditors meeting is not an ideal situation.

I really feel that your focus should be on the Bank who accepted the off-plan deposits - which was probably the same bank who financed the developer.  I am sure Maria can best advise you on this after she has seen the available evidence.

I am not familiar with any Tenerife forums but if you can provide links I will be more than happy to post information there regarding the Bank Guarantees Petition.  I am planning to extend it for a couple of months as certain information needs updating due to the new Spanish Government just taking office.

You are absolutely correct - when buying a property in Spain it is definately BUYER BEWARE!!

Kind regards

Keith



_______________________

LEY 57/1968
CLICK HERE FOR THE BANK GUARANTEES IN SPAIN WEBSITE

       
      

fpag@btinternet.com




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31 Dec 2011 18:23 by trowell1 Star rating. 150 posts Send private message

 Hi

I would suggest that you ask your lawyer to see if there is a generic bank guarantee, if so you have a real chance of getting your money back (I am involved in a group action against a bank, which is going well). However if there is no BG, I would guess it would be the same as anywere in the world - asking for money from someone who has none= no refund. Good luck





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01 Jan 2012 13:48 by Mal J Star rating. 17 posts Send private message

 Hi Coleen,

Sorry to hear of your problems. There are so many like you.

I don't wish to deter you from taking the bank to court but even if you do, the wait for all of your funds to be returned can be long.

i employed Maria and she was sucessful in winning my case and we had our deposit returned to us within a few weeks. However there had to be a seperate case for the payment of costs and interest. The case was to be heard in July but Maria informed me  that our case had been cancelled but the court had agreed to settle the interest and costs anyway.

Six months later we are still waiting for the return of our money. Whether this is just the Almeria court or just normal for Spain, but it seems almost worse than the normal corruption in that even when it is admitted that the bank was in the wrong, there is no desire to correct it. Amazing.

I can vouch for Maria's team and am very grateful to them for recovering my deposit. Hopefully, one day I will be able to post that the rest of our monies have been received.

Good luck in your fight.

 

Mal





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01 Jan 2012 18:49 by coleen Star rating. 74 posts Send private message

 Hi all and wishing everyone a happy New Year.

Keith, the tenerife forums are www.tenerifeforum.org and www.thetenerifeforum.com/

I really do hope that some more people come forward to fill in the details for the petition.  You are doing a huge amount of work there, compiling it all and it is much appreciated. 

It looks like I shall have to ask the lawyer if he can find out if there is a generic bank guarantee although I fear that he might take a bit of convincing that this is a worthwhile avenue.  I wonder if there is any way I can find out myself?  

As you've already got paid out Mal, it sounds very optimistic, even with a long wait.  I'd rather wait a long time and get the deposit back than wait a long time and get nothing!

 





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02 Jan 2012 15:46 by GreginLondon Star rating. 8 posts Send private message

 We are in the same position over an apartment bought on Green Hills in Elvira, near Marbella. The developer tried to force us to complete, we resisted, as the development wasn't finished to the proposed specifications (no planning permission for a golf course and golf club, other facitilites etc therefore didn't materialise) and the value of the apartment was (leaving aside any economic crashes) worth substantially less than we'd agreed to pay. We won the court case, the developer appealed. We won the appeal and were told that they had no other reeourse under the law and would have to refund our deposit (over €100k) but they applealed again. We have no date for another hearing and are so sick of what passes for Spanish 'justice' and legal process that we've just let things ride until we hear of something. 

This has been going on for several years now - at least 5 and probably closer to seven! What was supposed to be a dream second home to enjoy with our daughters as they grew through their teens has become a nightmare that has soured us towards Spain as a result. 

It's a scandal that the European Courts ought to have dealt with - since Spanish corruption and lazy bureaucrats have caused the problems for tens of thousands of people. But it's just being ignored on an international scale. The lack of information, the snail like process of what passes for a legal system in Spain and the indifference to the hardship that is caused to so many make it all the worse. 

I'm sorry you have the problem too! 

Greg





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02 Jan 2012 16:36 by coleen Star rating. 74 posts Send private message

 Hi Greg,

The Spanish judicial system is doubtless a big-playing culprit in all of this.  There is hardly any point in spending thousands of euros and sleepless nights taking a developer to court if the findings are not enforced.  In my case, I  lay my financial devastation and ensuing nightmare also at the door of  the English estate agents, the self-claimed experts, for their erroneous and harmful advice right through the process. 

There is at least one thing you can do, if you haven't already, and that is to complete the petition and invite anyone else you know in the same situation to also complete it. 

Let's fight on! 





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03 Jan 2012 12:28 by GreginLondon Star rating. 8 posts Send private message

 Hi

I've completed the petition as best as I can remember all of the many questions! I hope it helps in some way. 

We had bought an apartment already and it was completed (on a different project by the same developer) and just before the crash decided to buy a second on Green Hills - the market back then for rentals was quuite healthy (estimates of around 28-32 weeks per year occupancy) so the idea was to have one apartment for ourselves as a 'secind home' and another for rental. 


When things went south we put both on the market with the view that whichever one sold, we'd keep the other. Somewhat stupidly (wiht hindsight) we put the properties up for sale with the same agents who were selling both devleopments - bottom line was they had no interest in selling Green Hills re-sales when they had loads of unsold first-sale apartments. We did sell the first apartment on the other develppment, however. So we weren't too concerned about the commitment to Green Hills, which we then just thought we'd have as our 'second home' - until the time to complete, when we then discovered that there would be no golf course (the apartments were marketed heavily as 'golf apartments' to be built around a new 9 hole course). This meant that there was no golf club or any other amenity built on the site and eventually only about ~40% of the planned apartments were built. The community looks nice, to a point, but it is in the middle of nowhere with no facilities close by - a car is eessential to be there. The value is therefore probably (even without the property crash) worth half what the original selling price was - yet the developer offered 'free air conditiioning' as the only compensation for failing to get planning permission for the golf course and other aspects. 

I don't understand why it's so difficult to get closure on the whole thing from the courts. In any other country, failing to deliver the project to specification on so many aspects would render the contract void and be a formality to resolve, even if it went to court. To win both the first case and then the appeal should have meant that the issue was done and dusted. 

I am reduced to wondering if I'll ever see a resolution to this in my lifetime! I have never felt personal hatred to anyone the way I do towards the developers on this. There aren't words to describe the misery I hope that awaits them in the next life - if the courts won't impose it on them in this one! Let's hope that the petition does do some good at a governental level - but my experience of Spanish justice is not that good - despite them eventially finding in our favour, twice. The misery that is being caused to you, me and to so many others is a national disgrace for the country.  

Greg





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03 Jan 2012 12:28 by GreginLondon Star rating. 8 posts Send private message

 Hi

I've completed the petition as best as I can remember all of the many questions! I hope it helps in some way. 

We had bought an apartment already and it was completed (on a different project by the same developer) and just before the crash decided to buy a second on Green Hills - the market back then for rentals was quuite healthy (estimates of around 28-32 weeks per year occupancy) so the idea was to have one apartment for ourselves as a 'secind home' and another for rental. 


When things went south we put both on the market with the view that whichever one sold, we'd keep the other. Somewhat stupidly (wiht hindsight) we put the properties up for sale with the same agents who were selling both devleopments - bottom line was they had no interest in selling Green Hills re-sales when they had loads of unsold first-sale apartments. We did sell the first apartment on the other develppment, however. So we weren't too concerned about the commitment to Green Hills, which we then just thought we'd have as our 'second home' - until the time to complete, when we then discovered that there would be no golf course (the apartments were marketed heavily as 'golf apartments' to be built around a new 9 hole course). This meant that there was no golf club or any other amenity built on the site and eventually only about ~40% of the planned apartments were built. The community looks nice, to a point, but it is in the middle of nowhere with no facilities close by - a car is eessential to be there. The value is therefore probably (even without the property crash) worth half what the original selling price was - yet the developer offered 'free air conditiioning' as the only compensation for failing to get planning permission for the golf course and other aspects. 

I don't understand why it's so difficult to get closure on the whole thing from the courts. In any other country, failing to deliver the project to specification on so many aspects would render the contract void and be a formality to resolve, even if it went to court. To win both the first case and then the appeal should have meant that the issue was done and dusted. 

I am reduced to wondering if I'll ever see a resolution to this in my lifetime! I have never felt personal hatred to anyone the way I do towards the developers on this. There aren't words to describe the misery I hope that awaits them in the next life - if the courts won't impose it on them in this one! Let's hope that the petition does do some good at a governental level - but my experience of Spanish justice is not that good - despite them eventially finding in our favour, twice. The misery that is being caused to you, me and to so many others is a national disgrace for the country.  

Greg





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