BG and The Lawyers Responsibility

Maria,

I would like to ask you if you have any experience of a lawyer being taken to court, for failing to secure a bank guarantee for his client, and the client successfully recovering his deposit from the lawyers insurance.

I have been told that Spanish judges are likely to protect the Spanish lawyer, and not the foreiner, regardless of what the law may dictate.

Spanish Law has different parameters for damages Law as those of the  Commun Law.

In the Spanish system it is very important to prove a clear and specific damage and an unqustionable cause-effect relationship between action/default  and damage.

Judges need to apply Damage Law according to Law and Case Law obviously.

Maria reading your quote is it fair to then state the following

In the case that I have mentioned the develper is still trading and failed to deliver the properties so the buyers can still take action against them so the buyers have not yet lost their money

We all know that it can take years to get the developer to Court so are you saying that until this has happened the lawyer, even though they failed to get the required BG, as there has not yet been any financial loss, has to case to answer

Hi Roy:

Please have answers below in bold green ( same text of your email):

Maria reading your quote is it fair to then state the following

In the case that I have mentioned the develper is still trading and failed to deliver the properties so the buyers can still take action against them so the buyers have not yet lost their money

We all know that it can take years to get the developer to Court so are you saying that until this has happened the lawyer, even though they failed to get the required BG, as there has not yet been any financial loss, has to case to answer

A Judge would be able to possibly state this. I see the financial loss of not producing/requesting the  bank Guarantee very clear but... I also know a bit of how Damages Law work in Spain.

In my opinion, it would better to try a declarative procedure for breach of contract against the developer first and if failed, then to act for civil liability against the Lawyer with the Court decission in place.

Need to add that declarative decissions  for delay  are being more and more in favour of Consumers in the Spanish Courts  and that the lack  of  Bank Guarantee is also being increasingly  recognised as a cause for contract cancellation by our Courts.

Anyhow... it all depends on proffessional criterion. Of course you always have the Lawyers Insurance company to repond for lawyer´s proffessional negligency.

Hi Maria

Is there a time limit to take action against the solicitor.  My original solicitor did not get a BG for me (despite it being in my contract) - the develpoer did not have full planning permission and the building work has been stopped.  I am suinig the developer for my moneis back but am wooried that they may not have sufficient assets to return my money.  If this is the case then I would like to take action against my original solicitor but I am worried there may be a time limit to me starting my action.  I signed my contract in July 2005.

Nigel

15 years. No problem. 

Good luck with the declarative procedure. Fight  hard.

Hi

I have read how quick it it be should be to have your case against the Banks or a Developer heard in court.

What about how long it can take . 1 Month .  6 Months. 1Year.. 5 Years. 10 Years?

Simon

Hi Maria

I purhased a property on The Almanzora Country Club in June 2005.  My contract stated that I should have a bank guarantee (pointed out to me by my agent that because of this if everthing went wrong for some reason I could get my money back).  In October 2005 building work was stopped due to lack of planning.  My solicitor had paid over my  65,000 euros to the developer without obtaining a bank guarantee.  They also had failed to advise me that the building  licenses were not all in place. 

I changed my solicitors who have taken HUMA (the developer) to court - won and have placed embargos on 3 properties and 4 bank accounts.  Unfortunately 2 of the bank accounts have come back as having no money in (we are waiting details on the other 2) and of the 3 properties 2 have been mortgaged and the other have earlier embargos on (my solicitor said this happened between the court hearing and the embargo being placed.   They are looking to place an embargo on other properties but to be honest I doubt whether there are any assets to place an embargo on. 

My question is assuming my solicitor can not find any further properties what should I do.

1) Sue my original  solicitor - the firm are called AG2 Asesores - (somone said Asessores are not proper solicitors and wont have insurance cover - but the information I have from them states Solicitors & Lawyers)

2) Take further action against the directors of HUMA?  Can they be made personally liable as they did not give me a bank guarantee and I believe that was a legal requirement. 

3) Anything else I could do?

Nigel

If they are registered Lawyers, they have insurance liability. It is a requirement to be a member of the Law Society.

Best,

Maria

Thank you Maria.  Do you think suing the solicitor is the best ideas or is there any further action I should take against HUMA.  Also if I were to take action against the solicitor would it be better to take a joint action with other people in the same position as me who used the same solicitor.

Also if we were to use you as the solicitor to sue how much would you charge (and how much up front) and what sort of timescale would be talking about. 

Nigel

Hi Maria

You don't seam to have replied to my last posting.

I would be grateful for some advice.

Nigel

I would be very pleased to give to you any advice but I would ask you please send to me a private message or an email.

Best,

Maria

Legal tip 166. No Bank Guarantee?: action against the Bank
20 October 2009 @ 08:41

 

Madrid, November by Martius at Flickr.com

But how do we know if the promoter banked the money in a special account or just used it in a normal account?

He is obligued by Law to put the funds in a special account and funding banks always know that certain company is getting funds for an off plan project. So...

In my position I have sued the developer (HUMA) won my couirt case but at the moment my solicitor has not been able to place an embargo on any properties they hold which have equity in (I am owed about 65,000 euros) - what do you think would be the best way forward - to sue the banks for not giving mer a BG or the original Solicitor for bad advice?

I would initially say that better against the Bank, but I would need to see your contract.

Would you be entitled to interest & costs and what sort of timescale is it likely to take?

Can similar rules be applied to insurance company guarantees that never arrived?

Nigela: Yes.

Cardifflan: Yes, it applies too.