23 Feb 2010 2:19 PM:

 It is always a good idea to look for assetts before starting a court case. 

 

If they have assets at the ouset it is not a guarantee that they will exist when the sentence is due for execution, but if no assetts exist at the outset we need to consider if the court case is worthwile

 

Michael Davies. 

Abogado. 

DAVIES SOLICITORS (Almeria)

 

Community thread: Courts

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23 Jun 2009 1:24 PM:

 Dear Maria. 

Regarding Bank guarantees. 

We have cashed  in many bank guarantees. 

I am surprised when you say that the norm is fo rthe banks not to pay out on a bank guarantee forcing you to go to court. (this could lead peple not to attempt to cash their BG. putting them inj danger of loosing their money)

If the bank guarantee is correctly written, and their is a clear breach of contract by the builder , the banks DO PAY . 

We have presentd exectuion of bank guaranteed amongt others against Bankinter, Banco Popular, Banco de Andalucia, Cajamurcia ,Banco de Valencia, CAM bank  CAJA MADRID etc.  THEY ALL PAID. 

All these banks mentioned above have paid out on bank guarantees executed by us (wihtought going to court)

They do need to  be pushed , and the correct point of  pressure needs to be  aplied, but if the builder is in clear breach of contract the bank guarantee is correctly written, and is not out of date (many bank guarantee state they are not valid after a certain date/the legalitie of this clause is not clear, but banks will not pay out if exectured after this date) the BG can be cashed. 

It is very possible that if a buyer tries to do it on his own, he mignt be messed around, but a bank will not unlawfully refuse  pay out on a bang guarantee (which is a binding document for them ) unless they have at least one legal leg to stand  on (i.e. BG out of date, the breach of contract by the builder is not serious enough ).

We have come across one bank (the exception to the rule) that will not pay if the Builder is allready in concurso de acreedores , as they feel it could cause them problem with the administrador concursal. This particular case was sorted out joining the concurso and prsenting an incidente judicial.

IF PEOPLE HAVE BANK GUARANTEES THEY MUST BE CAREFULL THAT THEY DO NOT ELAPSE. 

If the BG  does not mention their obligation to pay interest, in a couple of cases they have refused to pay this interest. 

I am convinced that if I whent to court I would win in relation to teh interest, but in both cases my clients did not wish to persue it further. 

I am sure you must have examples of cases in which the bank has not paid, but their refusal to pay I am sure will have a reason atttached.  i.e They consider their is not a breach of the builder contract yet, the BG. has elapsed  etc. If the BG is correct , the breach is clear (for example non completion 6 months after the completion date),  and the execution has been presented in form I find it difficult to understand how the bank  can not pay. 

We have executed no less than 70 BG.s and all but one where paid . I only have one case at the monent in which the bank has not paid when I consider they should , which is with BANCO de VALENCIA, who has refused to pay the bank guarantee while  the building company is in concurso until the judge handling the concurso tells him to do so. I could achieve this with an incidente judicial at the CONCURSO, but up to now we have not done this. But thi is just the exception to the rule. 

Havingn said all the above, I can agree that most of the buyers out thier do not have BG. and that many who have have let them elapse. The bank will also normally play games and call the builder , so that he in turn can call the client to try and convince him/her to pull back the request of payment of the BG. (they do this, because the bank knows that if all is presented correctly they will not be able to escapte payment , and that they in turn will then have to turn to the builder to get theri money back after paying th client. 

 

 

 

 

 

 

 

Forum thread: portabello by proindal introduced by Mri

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23 Jun 2009 1:08 AM:

 Dear Grandslam.

To execute they bank guarantee I would suggest using a solicitor.

If you wish to try and save the solicitor fee, the precedure would be as follows: 

Prepare a claim for the bank to pay you your deposits paid  , plus interest.

Go to the bank with your originala bank guarantee and your claim. Take photocopies of both documents. When you get to the bank they could ask to see the oriinal bank guarantee, but you MUST NOT LET THE DOCUMENT OUT OF YOUR OWN HANDS. 

They must stamp an entry stamp on your copies as proof of entry. 

If the bank is correct, they will pay within three to four weeks. Most banks though wil try and cause you as much grief as possible. The first thing they will do is call the builder who in turn will call you to try and get you to withdraw your claim. 

If you have not receive the money after three weeks, we recommend orgaisin a requerimiento notaria via a local notary. I.e. you ge the notary to present himself at the notary with yourself with and theoriginal bank guarantee demanding payment on the spot. 

At this point the bank would be crazy if they did not pay. 

If they do not you should put a complaint in writing to the bank of Spain. 

These are the steps. The last one would be to sue the bank, but it would not be normal for the bank to not pay out. 

As more and more coompanies go under and the banks in turn get into more trouble bank will in general become slower in paying out the BG.  but in genear should pay. 

You can do all this yourself except for suing, but I personally think that the chances of success will increase if you use a solicitor acustomed to these claims. 

Michael Davies. 

Abogado. 

DAVIESSOLICITORS. 

Offices: Mojacar and Almeria. 

 

 

 

 

 

 

 

 

 

 

 

Forum thread: portabello by proindal introduced by Mri

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23 Jun 2009 12:49 AM:

 I would cash in on the bank guarantee unless a very good discount is offerd on another property. 

 

Michael Davies.

Abogado.

DAVIESOLICITORS

Forum thread: portabello by proindal introduced by Mri

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22 Jun 2009 8:44 PM:

 

 

Hello .

My name if Michael Davies. My firm is called DAVIES SOLICITORS .

Somebody from your complex came to see me the other day and explained your situation and explained that their could be up to a 100 people in a simmilar situation.

i.e. People that have put down a deposit of aprox. 30 TO 40 thousand euros. on properties solf for between 180 and 280000 euros with builders mortgages on the properties of between 100 and 150 thousand euros.

I undersant that the contract has a clause that states that the builde can choose between pocketing all the money or enforcing completion.

I also understand that the builder is thretening to enforce the contract and go after clients in the u.k........................... This client told me that he felt he was being bullied with tel. calls etc.

Your case due to the amount of people and money involved is of great interest to me and I would like to discuss this posibilitie with you.

I suspect that on this forum their could be representatives of the promotor and the estate agents spreading disinformation etc.

The first thing we need to establish , is how strict PROINDAL has been in complying with the contracts and consumer laws.

Have the issued bank guarantees on all stage payment. ?

Have they completed the complex completely within the timescale of the contracts, including thelicence of first ocupation?

Do the descriptions of the property you are purchasing as shown on search certificate from the property register tie up exactly with the measerements shown on your private contract (number of bedroom, square meterageetc). If the description does not match , they would bein breach of contract.

Are the services of the complex as advertised when you purchase.

I expect the above is all perfect, but it needs to be looked into just in case as it would make your position much stronger.

The contract is not in your favour, but having said this, I find that : 

The penalisation clause established by  this contract  could be challenged based on consumer protection laws. It would not be an easy case, but it would not be easy for them either. 

I offer two different services.

1. For those of you who do not wish to complete under any discount however high this may be.

Work out your strenths and weakensses and on the basis decide if to :  settle a deal for no furher claims  or innitiate court action if it looks feasable.  If they innitiate court action, then defend your case , and if this happend which I would doubt, innitiate a counter claim. In other words look into the posibilitie of claiming some deposit back (which will probably not be the avenue we woull choose unless they push you into a corner by suing you (which I doubt), or tying down the loose ends with a contract signe by them to avoid further claims be them. Even if they have done everthing to perferction(the above and other things), I am sure they would prefer a documented resolution of yoru contract to a loose ended end to your purchase , as they would find it unconfortable legally to pocket the money and sell on the property withought a document signed by you or a court decidion which is expensie and messy due to consumer laws etc. 

2.For those of you who do not wish in principle to complete, but that would do so if they offerd a very serious discount.

Depending on the financial situation of PROINDAL , and theirfore the situation with BANCO PASTOR . (the lender of the money to build this complex), If a group was formed of at least 50 buyers , I suspect that BANCO PASTOR would be in favour of any deal that avoided 50 people walking away from their purchases leaving them having to repossess the properties because their is no money to pay them.  They may in this circunstance be able to excersise pressume on PROINDAL to help the transaction go through.

3. A combinatin of both the above. For some of you 2 may not be an option in any case. For someof you we would have to play a game of working out strenths and weakenesses  and then deciding which options to take for the better.

What I would basically do is secure that out of a bad situation , you come out as well as you possibly can. In the case of enough people going for option 3 , it may even be possible to turn a bad situation around. 

Normally these forum are also visited by solicitors disguised as clients etc. For this reason I do not wish to provide any more info regarding different procedure etc.

If you would like to discuss the above, please call or email us.

The system does not allow me to put a website address up, but if you p.m me I  will provide it. or you can google it. We have offices in Mojacar and Almeria .

 

MIchael Davies.

Abogado.

Member 1748 of Almeria Law Society.

Member 67228 of Madrid Law Society.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Community thread: anyone who has walked away recieved a letter from prodinal lawyer

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