Generic Bank Guarantees

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30 May 2012 14:38 by ads Star rating. 3025 posts Send private message

Maria

I would be very grateful if could you clarify something relating to generic Bank Guarantees.

If you have a successful first instance ruling for breach of contract against a developer that has not gone into administration (but has asset stripped or hidden assets), and have gained a successful resolution against the developer's appeal, and you have a copy of the generic Bank Guarantee for the development (but no individual BG), does this then imply that you can simply enforce return of monies, as per the existing successful judicial rulings, against the Bank that provided the generic Bank Guarantee?

Or would you need to bring together a joint action against the developer and Bank (as in Keith's situation) to gain a successful enforcement for return of deposited monies and costs etc as per existing rulings?

Many thanks.

 


 


This message was last edited by ads on 30/05/2012.



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30 May 2012 17:34 by mariadecastro Star rating in Algeciras (Cadiz). 8809 posts Send private message

mariadecastro´s avatar

 In that case that you are describing, the case will be just against the Guarantoor

Kindest,

María



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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30 May 2012 19:27 by ads Star rating. 3025 posts Send private message

Thank you Maria. Much appreciated! 

Would the case be against the guarantor (the Bank) if the developer still had assets to dispose of?





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31 May 2012 14:34 by Keith110 Star rating in the UK and I am lead.... 682 posts Send private message

Hi Ads

If initially you just took legal action against the developer and have a first instance decision against the developer and/or an appeal court decision against the developer then your next action will only be against the Bank.  Your Lawsuit against the Bank would make reference to the successful First Instance and/or Appeal Court decision against the Developer.

You would not need to take legal action again against the developer as the original judgment is already there.

The next action would just be against the bank.

The best way for those not yet started any course of legal action would be to file a joint Lawsuit against both the developer and the bank.

So to summarise:

If you have a successful First Instance Court decision against the developer and the developer has not appealed and for whatever reason you are unable to execute the judgment then the next legal action would only be against the Bank who issued the Generic Bank Guarantee or if there was not a Generic Bank Guarantee, against the Bank who 'knowingly' accepted the off-plan deposit.

If you have a successful First Instance Court decision against the developer, the developer appealed and you then have a successful Appeal Court decision against the developer then follow the above scenario.

If you have never previously taken legal action then the best way forward would be to take a joint legal action against the Developer and Bank. 

But remember, all cases are different.  To pursue a claim against the Bank you must have certain evidence, proof of payments to the bank, possibly a generic Bank Guarantee etc.....

I am sure María will correct me if I have made a mistake in any of the above scenarios.

Before making a decision or taking any legal action I would strongly advise that you take independent legal advice.

Kind regards

Keith


 


This message was last edited by Keith110 on 31/05/2012.

_______________________

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

       
      

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31 May 2012 14:43 by mariadecastro Star rating in Algeciras (Cadiz). 8809 posts Send private message

mariadecastro´s avatar

All correct Mr. Rule. You already know much more than me on these matters!



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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06 Jun 2012 21:08 by mike_congress Star rating. 31 posts Send private message

This is not Justice! -

I have just received notification that my claim against Banco Popular for refusing to honour a bank guarantee has once again failed.
 
In 2006, we won our claim for return of deposits placed on property in Santa Maria Greenhills. The development was illegal and there were no LFO's. Our lawyer at the time failed however to present  an essential document  to the court which was noticed by the bank, who then appealed and had the decision reversed based on this technicality. We counter appealed and lost. The case was lost due to this one procedural error. The lawyer argued with the courts, pursuing it thro the Supreme and Constitutional courts who all refused to re-consider the case.
 
6 years later I have finally got back into 1st instance court, this time with a more competent lawyer. The new claim was submitted over a year ago but the original documents were still lodged in the court system. The courts were unable to locate them so copies were attached to the claim with a letter explaining the situation and requesting the court to locate the documents. Many months later they claimed they could still not locate them so my lawyer travelled to Madrid where he personally searched the courts and found them. He promptly forwarded these to the new court to replace the copies.
 
At a pre hearing, the judges agreed they now had all they needed to make a decision. On the day of the hearing however, the judgement was that the claim must fail because the original documents were not attached to the claim. Technically, the documents were in the court system when the claim was lodged but just not actually stapled to it. Any non-compliance was totally due to the incompetence of the courts being unable to track and return my original documents. The judges are totally aware of this yet have rejected my case on a futile technicality. 
 
My only option now is to start again in 1st instance court which will probably take at least another year and I feel that however watertight my case may be, they want the bank to win and will just keep finding reasons to decide in their favour. How can we ever win against such this system!  - This is not justice!


 


This message was last edited by mike_congress on 06/06/2012.


This message was last edited by mike_congress on 06/06/2012.



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06 Jun 2012 23:39 by ads Star rating. 3025 posts Send private message

This is disgraceful and a complaint  surely needs to be brought IN WRITING to the CGPJ immediately (with retained copies) plus full case details need to be sent to your local MEP's (www.writetothem.com ).

I wonder how many more are being subjected to failure of justice due to "technicalities" born from Spanish court incompetence?

It's imperative that all new evidence of this nature be reported also to Keith's petition www.bankguaranteesinspain.com which may subsequently be sent to the World Justice project and European Commission amongst others?

I would be interested to know if the existing administrative system provides law firms with any formal acknowledgement of receipt, itemising the documents received relating to individual cases? If not, then might a practical solution in the interim be for law firms to request (or demand!) detailed confirmation of receipt to ensure that problems of this nature are not repeated?


 


This message was last edited by ads on 07/06/2012.



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18 Jun 2012 18:32 by mike_congress Star rating. 31 posts Send private message

Thanks Ads for your reply.

Yes it is disgraceful! - I feel that tyese judges have not even attempted to apply justice but have simply searched for a reason to cause dismiss the case.

As you suggest, I will lodge a complaint with the CGPJ, but I expect they will just ignore it in the same way as do all other authorities in Spain.  As for writing to politicians, I think it's just a waste of time as they will simply look up their book of standard replies and respond with - 'we do not get involved with individual cases' ......'it doesn't fall within our remit' ....'we cannot interfere with the judiciary of another member state'  ...etc - no matter who you ask for assistance in the UK, these are their standard replies.

Do you know what the procedure is for submitting a complaint to the CGPJ, and does it have to be done in Spanish

I propose to start a new thread referencing this case as yours is the only reply on this one. Maybe I can get more visibility with a more relevant title.

 





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18 Jun 2012 18:54 by Keith110 Star rating in the UK and I am lead.... 682 posts Send private message

16 Jan 2013 08:21 by carolinemills Star rating. 27 posts Send private message

Hi everyone,

I have been posting to many forums but I think that if I received my deposit from bank guarantees you can receive it too.
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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26 Sep 2013 12:00 by Guadalupe. Lawyer Star rating. 261 posts Send private message

EOS Supporter
ENFORCED GENERIC BANK GUARANTEE FOR EDIFICIO TORREBLANCA IN CASTELLON (PROMOCIONES AUGIMAR). BANKIA SENTENCED TO REFUND DEPOSIT PLUS LEGAL INTEREST AND DEFENSE COST TO PURCHASERS WHO NEVER RECEIVED INDIVIDUAL BANK GUARANTEES
 
We are proud to announce another success of GM LEGAL EXPERTS Legal Team in Court. This time is about the Torreblanca development, built in Castellon by AUGIMAR.
 
Although our customer never received an individual bank guarantee, some information obtained through the Bankruptcy proceeding followed against the developer guided us to the generic bank guarantee signed by Bankia (before called Bancaja) with Promociones AUGIMAR.
 
The Court from Valencia has estimated in full our claim for the enforcement of that generic bank guarantee, and has sentenced Bankia to refund to our client the deposit, plus legal interest and defense cost, despite he never received an individual bank guarantee and his deposits wasn't paid into the "special" account.
 
 




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26 Sep 2013 12:01 by Guadalupe. Lawyer Star rating. 261 posts Send private message

EOS Supporter
BRAND NEW RULINGS FROM MAGISTRATES COURTS SENTENCING BANKS TO REFUND DEPOSITS UNDER THE PROVISIONS OF GENERIC BANK GUARANTEES
 
Magistrates' Courts from Madrid and Cadiz have recently sentenced Banks to refund deposits plus legal interest to purchasers, although they never received individual bank guarantees.
 
The legal reason to sentence banks is based on the generic bank guarantee agreements signed between Banks and developers.
 
As many times before, Courts understand that the lack of individual bank guarantees, and the payment of the deposit into an ordinary account, rather than into a "special" one, can't prevent purchasers to claim to the Banks the refund of deposits, given that the breach of the developer's obligation is not enforceable against the purchasers, whose rights cannot be waived under the 57/68 Act and General Consumers protection Laws.
 




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26 Sep 2013 12:39 by M11Block Star rating. 173 posts Send private message

Can you tell us when this sentencing was passed and where did you obtain the Generic Bank Guarantee from. Perhaps this ruling could help our case.





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26 Sep 2013 12:51 by billyboy99 Star rating. 11 posts Send private message

Yet the same lawyer lost the case against La Caixa / Trampolin Hills with the same circumstances.

Where is the consistency ?





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26 Sep 2013 13:21 by Guadalupe. Lawyer Star rating. 261 posts Send private message

EOS Supporter

Dear M11block: 

Please find below the references that you can provide to your solicitor to get copies of the sentences mentioned on the post

AP CadizId Cendoj: 11012370052012100415

Nº de Recurso: 360/2012

Nº de Resolución: 454/2012

AP MadridId Cendoj: 28079370102013100067

Nº de Recurso: 644/2012
Nº de Resolución: 78/2013

Hope it helps

Dear billyboy99: the fact that you win a case for generic bank guarantees enforcement doesn't mean you would win all of them. Every case is different as long as the plaintiff is different. In your country works same. That's why lawyers cannot commit 100% successful rate.

And the case you mention is not lost yet. We are still waiting for the Magistrate Court's ruling.

 

 

 


This message was last edited by Guadalupe. Lawyer on 26/09/2013.



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26 Sep 2013 13:46 by mike_congress Star rating. 31 posts Send private message

I last posted to this thread on 6th June 2012 when my claim against Banco Popular for the enforcement of my bank guarantee had just failed due to the fact that the court office lost my original documents.

We originally won our claim in 2006, but Banco Popular appealed on grounds that the lawyer at the time did not correctly follow procedures as required by Ley 57 and the court reversed their decision.

In Feb 2011 we re-submitted the claim but lost because we were forced to attach copies of the bank guarantee and purchase contract as the originals were never returned after the original claim and despite several requests to the court office they were unable to locate the documents.  My lawyer eventually found the originals in a pile of unfiled papers in ta Madrid court office and submitted these to the court to be attached to our appeal.

The court failed the appeal, in spite of now being in possession of the originals, again because the originals were not submitted when they should have been. On this occasion the judge had all originals in front of him and had indicated at a pre-hearing that he had all he needed to proceed with a judgement.

We started  all over again and re-submitted the claim this year.  A hearing took place in May 2013. We won the claim against the bank and they were ordered to honour the guarantee and refund deposits with interest.

Once again the bank appealed the decision, claiming that because Licences of Occupation were issued in June 2012 (7 years late) the bank guarantees were no longer valid and because we had made a previous claim – in 2006 using the executive process, this option was no longer available to us and we should be using a litigation process. The court again reversed the decision so once again the we had another failed case.

At the hearing in Feb 2011 and the appeal in June 2012, there was no objection to the process so the court accepted the process 3 times and even proceeded with a hearing and judgement before allowing the bank’s appeal and reversing the judgement.

This should not be happening!  The bones of the case are that the developer have breached the contract by 7 years, the bank guarantee was perfectly valid when we cancelled the contract and first attempted to enforce the guarantees and all these technicalities which allow the bank to appeal and have the court’s decisions reversed are unimportant and should be rejected by the court in the same way that they rejected my claims when it was their office that lost our documents and forced us to submit copies.  A bank guarantee anyway is simply a piece of paper – it is the number of the document that is of importance as it is this that is registered with the Bank of Spain and can easily be checked for its validity.

The behaviour of Spanish courts is disgusting.

I now have the option to proceed with litigation against the bank for failing to honour guarantees, for lying on paper and under oath – they have claimed all along that the licences had been issued, yet these were officially issued by Marbella Town Hall in June 2012 – and for fraudulently withholding monies which they have promised to pay out under the terms of their guarantees.





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26 Sep 2013 16:48 by ads Star rating. 3025 posts Send private message

Dear Guadalupe,

Thank you for your educative posting.

I wonder how long have you been waiting for the magistrate court's ruling?

Are you reporting any excessive delays to the authorities so that statistical evidence can be more accurately monitored?

Likewise, are you reporting any factual evidence of compromsing instances relating to consumer rights to the National Institute of Consumers?

So long as we hear and witness inconsistent rulings (such as Mike's below) and the incredible lengths that innocent consumers have to go to, to gain justice against the Banks (and developers) in Spain, the longer the message of BUYER BEWARE will remain. Especially when we recognise that we have been denied inalienable rights.

All too many of these cases against Banks and developers that are being compromised by delays and/or inconsistent rulings are being hidden from view, and what is needed is for good legal professionals to come together with a more cohesive plan to bring ALL of these instances relating to their clients to the attention of the authorities.

They should not remain hidden from view any longer.

Until such time as adequate time constraints are put in place to ensure regulatory proceedings are conducted in a timely way that respect the due process of law, then respected law firms who are experienced in these lawsuits against Banks/developers need to bring these matters to the fore and push for a fast track approach with consistent rulings via a specialised court (as Keith Rule has advocated in his BG petition text).  Only then will the Spanish Justice system regain the trust of innocent consumers, who have been fighting for their inalienable rights FOR YEARS.

It needs to be stressed that the status quo is no longer proving a viable option for many, especially as more lawsuits against the Banks are submitted and so long as these legal inconsistencies remain.

Apologies for this rant, as I and many others are aware of the good work that you and Maria are doing in this regard, but without prioritorising and highlighting the need for basic timescale constraints (deadlines) on the various legal procedures necessary to protect consumers from abusive delays (i.e. delays relating to preliminary hearings, 1st instance rulings, preliminary enforcements, appeal rulings, delays from the courts for return of monies as per final rulings, return of interest and costs, Supreme Court etc), and adequate monitoring of legal inconsistencies (which incur increasing costs, not to mention additional stress associated with lengthy battles for justice), then the innocent consumer will continue to be compromised.

All of these facts need to be consistently fed back by the legal representatives as complaints to the relevant authorities, otherwise this "legal lottery" in Spain will sadly continue to be exposed to the wider media and press and external organisations such as the World Justice Project, which does a grave disservice to those good professionals, such as yourselves.

Please help us all by consistently reporting back these instances to the relevant authorities and please strive for a more specialised fast track approach to make the Banks/developers truly accountable by enforcing Ley 57/68 in its entirety.





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22 Oct 2013 17:17 by SandraD70 Star rating. 24 posts Send private message

Hi

My friend he won his first instance case in Alicante
The banks appealed and last week the judgement came
It awarded all of his deposit but reduced his six years interest by 66%
Also they denied him his costs yes although he rightfully won he got NO COSTS
so be warned not all are winners But we never read about this only the lucky ones

Regards
Sandra



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22 Oct 2013 17:38 by ads Star rating. 3025 posts Send private message

This doesn't sound like an adequate disincentive to me.

It would be interesting therefore to know on what grounds they based this ruling and the reason why the judge chose not to award costs and adjust interest. Is it possible to identify this?

Many thanks Sandra.

 





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22 Oct 2013 17:49 by SandraD70 Star rating. 24 posts Send private message

No it's not a disincentive I agree
I'm sure someone can access the judgement and inform us more
I'm just perplexed as to why we are not reading about these loses on here
And maybe an insight from our legal friends as to why these decisions can be so inconsistent
All I'm saying is it's not all win win win as usually reported on here
People need to know the ups and downs
Regards
Sandra



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