09 Feb 2011 12:00 AM:

Dear members

 As this was an issue a few months ago, and some of you were reluctant to believe, I confirm that today I have received the confirmation from Court number 14 in Murcia, ORDERING BANCO POPULAR to pay back to my clients (buyers in Phase III Corvera Golf) the Bank Guarantee for the money previously paid.

 I am waiting now another resolution for CAJA MURCIA also to pay their Bank Guarantee to the same clients, I hope this is coming soon.

 What I want you see is that BANK GUARANTEES have a CLEAR PURPOSE ACCORDING SPANISH LAW 57/1968: TO PROTECT BUYERS ABOUT DEVELOPERS WHO ARE NOT FINISHING AT ALL, OR EVEN NOT FINISHING IN TIME OR PROPERLY. Of course every case is different.... but with a Bank Guarantee in hand you have many options to have your money back.

 Kind regards to all

 Luis F Mendez Banderas

 Solicitor Málaga n. 6052

  

 

Community thread: COURT RESOLUTION ABOUT PHASE III BANK GUARANTEE-BANK WILL HAVE TO PAY BACK

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23 Nov 2010 7:36 PM:

 Dear Sir

 The case with Polaris that I have the Court Bank Execution was far more complicate than the one in Corvera (and we were able to obtain the Execution from the Judge), because Polaris has finished the property and obtained First Ocupation License meanwhile the Court case was happening..., now we are discussing at the High Court if the term of 18 months from the date of  Building License is abusive or not, when the property was delivered two years late as iniatially told  to the client..., 

  In Corvera the situation is far more simple, we have even not a building license, and probabley the works are not beginning in years, so the Bank Guarantees are exactly for that according Law 57/1968, to protect the buyers money and allow them to claim it back if property is not completed on time.

 I am handling now my First Case in Phase 3 in Corvera, with all the data I have obtained for this case and with the Certification from Town Hall that shows that this property is not going to be built probably in years, I am going to Court with everything in our favour, I think we have a 90% rate of success... that is the reason and in the case of Mrs. Dow I have reduced my legal fees to a minimun and arrange a  success fee.

 I can send you a few cases from High Courts, but they are all in Spanish... and very difficult to translate into English, give me your email and I shall post to you.

 Luis F Mendez

 

Community thread: anybody had a legal proceedings update?

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23 Nov 2010 6:34 PM:

 Dear Mr. Howitt

 I cannot send this private information through this channel, as you know any of this information is highly confidential, and Lawyers are ruled by a very rigid Privacy Law. I can send you to your private email a copy of Court Resolution against Polaris, but you cannot give any sort of publicity to it.

 I hope you understand, please send me in private your email, and I shall send you a copy.

 Thank you

 Luis F Mendez

 

 

 

Community thread: anybody had a legal proceedings update?

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23 Nov 2010 5:58 PM:

Dear Sir

 I have some sentences from Courts in Murcia Region against Banks in order they pay the Bank Guarantees, I am reluctant to go against Developers that normally have no assets and the litigation is only a very expensive way for a client to proceed, even if he wins.

 The Law is for all the same in Spain, and CONSUMER LAW IS FROM 1984 (nothing new...), the differences are coming normally from Judges at the first level, we call it PRIMERA INSTANCIA, here is typical you have completely different sentences for exactly the same cases... I have a few of these, and finally is the High Court who is resolving in a far more reasonable way.

 I would like to say that clients have to Appeal sentences from Judges at the First Level, I know there are many succesfull cases for clients who have Appeal.

 Anyway each case is different and any Lawyer will give his own approach. But I am sure things are not so negative in Murcia as you are saying.

 I tell you how things could happen: regardin the Court Case that I won against Bancaja (Polaris World property), the Judge gave me the execution of the Bank Guarantee, then Bancaja present oposition to this execution... and the Judge changed completely his initial line and gave the reason to Bancaja, so I have Appeal to High Court in Murcia and waiting a final resolution probably around April-May next year. I am waiting for the final hearing date. We will see...  

  My approach is simple if you have Bank Guarantees and your property has not been built or has not a First Ocupation License arranged at the proper time (according the contract, or according common sense:2-3 years). You CAN execute your bank guarantee, probably the Bank will not pay, so you will have to begin legal executive action against the Bank, then you have many chances to have your money back.

 Luis F Mendez Banderas

 Lawyer Malaga College Number 6052

 

 

Community thread: anybody had a legal proceedings update?

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23 Nov 2010 11:05 AM:

Dear Sir

 I am the Lawyer of Mrs. Dow, and I shall inform you about the legal situation of this client and others who have similar situations to this Phase 3 in Corvera Golf and Country Club.

 The contract that was issued by the developer had the "usual" tricky clause that says: "the property will be delivered after 18 months from the Building License" (in other contracts for other developer says 24 months from the "works have begun..." or something similar in order to give all chances to developer...)

 But the fact is that the CONSUMER LAW from 1984 says that when you sign a contract for delivery of property not build yet THE DEVELOPER HAS TO APPOINT A CERTAIN DATE FOR DELIVERY... , so ALL THESE CLAUSES IN THE DEVELOPERS CONTRACTS ARE COMPLETELY ABUSIVE... (AND ALL SPANISH LAWYERS HAVE BEEN SIGNING THEM FOR YEARS, INCLUDING ME), and this have been declared now ILLEGAL for most of the HIGH COURTS IN SPAIN, YOU CANNOT INTRODUCE A CLAUSE THAT GIVES NOT A PROPER DATE, AND EVEN LEFT THE COMPLETION ENTERELY IN DEVELOPER HANDS.

 ACCORDING THE LAW ALL THE ABUSIVE CLAUSES ARE NULL AND VOID... SO THE COURTS HAVE TO MAKE A REINTERPRETATION OF CONTRACT PRO-CONSUMER, AND THEY ARE DOING SO... ALLOWING TO EXECUTE BANK GUARANTEES IN THESE CASES.

 Corvera Phase 3 is a perfect example, the Town Hall in Murcia has confirmed (I have the certification from Town Hall) that the Developer have applied in 2008 for the BUILDING LICENSE for 89 apartments and houses in Manzana M-33, the Town Hall opened a building license file with number 9072/08-LE, BUT THE DEVELOPER DID NOT COMPLETE ALL THE PAPERWORK AND DID NOT PAY THE LEGAL TAXES, so the MURCIA TOWN HALL HAS CANCELLED THIS FILE... so this phase HAS NOT ANY BUILDING LICENSE, and who knows when will be reapplied and pay again... WHEN THIS APPARTMENT WILL BE FINISHED ? May be NEVER ¿?

 So what has a buyer to do there? To wait for the 18 months of a building license that never will come?, to wait all his life...?

 NO WAY, ACCORDING SPANISH LAW AND JURISPRUDENCE OF HIGH COURTS YOU CAN AND YOU MUST EXECUTE YOUR BANK GUARANTEES, and this is exactly what I am doing for my client in Corvera, and for many others in other regions of Spain.

 As you say the FIRST STEP is to proceed against the Banks, and to claim them to pay the Bank Guarantess, I have done so with Mrs. Dow, I have sent a legal communication (burofax) to Banco Popular and Caja Murcia, I have done this in July, and not answer yet from the Banks, unfortunately this is common in the present economic situation, EVEN BANKS ARE LOOKING AT THE OTHER SIDE AND TRYING NOT FULFILLI THEIR OBLIGATIONS.

  SO UNFORTUNATELY WE HAVE TO GO TO SECOND STEP, AND WE HAVE TO OPEN A SPECIAL COURT CASE CALLED IN SPANISH LAW: EXECUTIVE DEMAND AGAINST THE BANKS, TO EXECUTE THE BANK GUARANTEES.

 I have run during 2.008-2.010 around 20 executive cases against most of the main Spanish Banks, many of them are lookin for any given excuse for not paying, I can say that we have at present won all the cases except one that is in Murcia High Court pendent of final resolution.

 We have still a long way ahead in Spain to convince the public and even some Lawyers and Judges, that CONSUMERS has to be protected in Spain, and we have the Laws to do it, just the application of the Law has been really naive and only protecting one party, normally the stronger one: Developers.

 The huge importance of the Building Sector in Spain and the lack of control from the Spanish Public Authorities (who by the way were completely tax dependant on this sector) are the reasons of this "mess", and may be the good side of this crisis is that many hearts and eyes can be opened if Lawyers and Professional of Law are really committed to do so, so we have a far more better future with more control and justice.

 Thank you for your attention, and I am looking forward for any commets.

  Luis F Mendez Banderas

  Lawyer Malaga College number 6052

 

 

 

 

 

 

 

Community thread: anybody had a legal proceedings update?

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