RETURN OF DEPOSIT - PROGRESS THROUGH THE COURTS

I realise that a lot of people wont post here but would like those who are having some joy / progress on the return of deposit and escape from this venture to post here and cheer us all up please......

Thanks....this can be known as the good news thread.

Hi this is my first time to post on the forum but i have followed progress on it for about twelve months or so, i am a buyer on medina golf and like many have a contract dated for october 2008 for completion. I had the bank guarentee in place but im not sure if its worth the paper its written on. I have quizzed my spanish solicitor on several occasions as to the best way forward but im not sure if he even knows himself. In the latest email from him he is looking for more money to join in the bankruptcy effort, i would prefer to go after the banks, ANY IDEAS?

Try Maria del Castro of Costaluz lawyers. I have heard that she will give you an informed opinion. Many other lawyers appear to be a waste of space when it comes to knowing the best route to follow when defending your interests with property purchases.

There are a few of us using CostaLuz lawyers to try and cancel the contract.  I have been waiting about 14 months for a court hearing though.  Many of us have never been given bank guarantees, and in this case I don't think we can go after the bank/insurance company until (or if) the court agrees to a cancellation and the loss has been established.  

I believe our cases would be cut and dry in the UK, but who knows what will happen in Spain.

Paul l - What do you mean by they "are asking for more money to join in with the bankruptcy effort"? As I have been trying to cancel for over a year, I am not necessarily up-to-date with the information that others are getting.

Hi Cardifflan

I meant that my solicitor is looking for more money to enable him to follow up the case in the courts. Im trying to get accross to him that with the original insurance backed guarentee we paid for that it should be a straight forward claim with them, He keeps saying that they must be deemed bankrupt before the insurance will pay out.

Im not sure where we stand now or how far away from completion the sorry mess is!

Hi all,

I have cancelled my contract for an apartment in Medina Golf and made a claim on the bank guarantee provided by ACC Seguros (a subsidiary of Zurich Insurance).  My solicitor in Spain advises that ACC are refusing to pay out on the Bank guarantee until the developer is bankrupt and the loss is crystalised.  I am taking legal action to enforce the bank guarantee, but I have not received a court date.  I would  be interested in hearing if anybody has had any luck in claiming against ACC Seguros in relation to a property in Medina Golf?

Does anybody know how the administration process for Nadalsol (the developer) is going?  If they were to finally go bankrupt, I suspect that my position would crystalise in relation to the claim against ACC.  Any feedback or ideas?

Regards,

Donal

 Hi all,

Some of you may already have seen this, but I just found it on the web. It doesn't  sound like the banks are playing fair - there's a surprise. The article below was copied directly (i.e. I didn't add in the bold text) from  Antonio Flores’ Blog here. I would love to hear any thoughts from lawyers about this, and how they would respond to ACC Seguros refusal to pay back the bank guarantees?

"Zurich Insurance, one of the leading insurance companies in Spain through its ACC Seguros y Reaseguros branch, has refused to pay the sum guaranteed on an insurance policy to a client of our firm on the basis that the developer had stopped all works as it was put into Administration. This dangerous situation, which we would all think is the number one reason for a bank guarantee and/or insurance policy to exist is precisely the impediment put forward by Zurich to say “I´m sorry, we can’t”.

Zurich did attend the payment of just under 40 checks to clients of this firm on the Larsol development as it was not going to be finished, although the developer is still operating. Conversely the above developer, Nadalsol, even though technically insolvent, may be finalizing the works at Medina Golf Residencial Granada, though with a significant delay.

Zurich has decided not to pay based on the following:

1. That the recent Insolvency Act precludes them from paying out on the policy as it would jeopardize their right to reclaim this sum from the developer in a separate recourse action, as the insolvency administrators could argue that the execution was unduly granted.
2. That as we extended the validity date of the policy (which we did, just in case) we also inadvertently extended or agreed to a new completion date for the property bought on contract (The funny thing here is that the validity of insurance policies and bank guarantees for the purpose of guaranteeing funds are never limited in time, except by the license of occupancy, according among other to a most recent ruling by the AP Madrid 27th Dec. 2007).
3. (That perhaps they have ran out of money!).

Well, none of the arguments can be sustained for the following:

1. Argument 1: Because the relationship between the Insurer and the Consumer is autonomous from the vicissitudes affecting the developer as the latter is not party to the contractual relationship.
2. Argument 2: Because it is plain daft and stupid! How can extending the maturity of a insurance policy relate to a completion date for a property?

It is extremely frustrating when trying to explain disappointed investors that a company like Zurich Insurance will look for any excuse on the book to try to not abide by the clear wording of consumer protection laws on off-plan purchases which envisaged the protections specifically for cases of insolvency.

So if Zurich does not pay, who will then in this current climate?"

Cheers,

AIS

Hi AIS,

I have seen the A.Flores Blog, and it is consistent with the position that ACC has taken in relation to my claim against the bank Guarantee.  ACC has said that they require confirmation that my contract has been cancelled by Nadalsol before they will pay out.  Nadalsol are in administration, and are claiming that the contract is still in force as they intend completing Medina Golf.

I have instructed my solicitor to seek to enforce the guarantee via the courts on the basis that the guarantee exists between me and ACC, and that the event that I was protected against has occurred.   It is an entirely different legal matter if ACC need to protect their position in reclaiming the funds from the developer.  I absolutely agree with A.Flores when he says that:  "It is extremely frustrating ................. that a company like Zurich Insurance will look for any excuse on the book to try to not abide by the clear wording of consumer protection laws on off-plan purchases which envisaged the protections specifically for cases of insolvency".

Hence my query in relation to whether Nadalsol is still in administration, and whether they can trade out of their difficulties or will ultimately go bankrupt.  From my point of view, if Nadalsol were to go bankrupt, I would expect the contracts to be null and void, and my claim against Zurich / ACC would have a stronger chance of being paid. 

In the meantime, I am waiting for a court date so that my claim can be heard.  It is possible that a judge could rule in our favour and force Zurich / ACC to pay out, but we won't know until the case is heard.  Has anybody else had the same experience as I have?  I would also be interested in any views from lawyers on my position.

Regards,

D

Hello everyone,

Last weekend I visited Medina Elvira with another client.  We met Steve Hindley and took plenty of photos of most of the developments.

I wasn't able to download the photos here so they are on this page:

http://cid-7f7a8054051f6525.skydrive.live.com/browse.aspx/Medina%20Golf%20Mar%202010

News from the site then:

• As a Medina Golf purchaser I was very disappointed.  There doesn't seem to have been much progress in the last 6 months.
• The finish standards were quite poor and at the moment I would say that without a huge workforce the Habitation Licience is at least 6 months away.
• Some piping has been delivered which Steve said would be to take the sewerage away from the site although works on this has not yet started.
• We found no sign of your riding school Jetdog (I was looking forward to some good photos).  Steve Hindley didn't even know where it was but said it was built years ago.
• The club house is quite impressive and everything seems to work.
• The landscaping is terrible everywhere.  I would be shocked if I were a tourist.  Much of this has been delayed by such a wet winter.
• The electric pilon is an eyesore.  Steve said it would be moved but a Spanish employee on site said that would be extremely unlikely as there isn't any money for it.
• There is very little security at the moment.
• The 12 villas will not be built.
• ME23 looked OK.  Paint had been damaged by the rain, lifts definately didn't work but in general it looked fine.  What Peninsula really need is for other clients to move here and complete.
• If enough clients complete here then perhaps the new rental program will be able to operate.  Steve said this will operate at 4% guaranteed rental and give access to your own apartment for 2 weeks a year for 50 euro a week.
• Peninsula can and have been offerering ME23 apartments at a discount due to people losing deposits and not completing after the licence of occupation has been issued.
• Although Peninsula are not aparently related to Nadasol (the builders in administration for Medina Golf) they can still cancel your PPC with them and move you to ME23 or another development.

Sorry if this is a bit harsh in places but I think being direct is best.  The site with the pictures is public so anyone can coment I think.  A lot of people on this forum seem to be in the dark with things so I recomment that you also take the trip.  Don't expect lunch or even a coffee though.  Steve Hindley was very good to meet us and seems to be the only person genuinely interested in making progress here but I dont think he exactly has the cash to splash.

I stayed at Fuengirola and have to say that talking to the locals the Costas are certainly suffering.  I met an estate agent who was closing his business and cleaning out the shop.  He stated that although clearly no one was buying, very few people were willing or able to sell at lower prices hence he sold up before going bust.  Steve said that prices in Granada were holding up and that good valuations wouldn't be a problem on our properties.  I think people there are living in a dream and that by the end of 2010 things will be in a desperate state in Spain but we will see.  At least Granada should be more protected than the costas from any further downturn anyway as building has been more limited.

I agree with Steve that the most important thing for the development is the commercial centre.  Without this there is no future to the development.  I wish the developers would also realise this and concentrate their efforts in that area.  Perhaps then the site may come alive and people could realistically live there.

The site still has the potential that I saw in 2006.  Perhaps less residential properties and more care over what is there now should be going on to realise this though.

I'll sign off before you all fall asleep now and get back to my ironing LOL.