Taking Huma to Court

Hi  Trudge

Can i join the 'bank' action list please.  Could you send me a form as well? I have read the link Nigela sent and it looks like the Banks definately should be held responsible for not issuing these Guarantees!

Thanks

TASM

 Everyone please see Mara's reply to my posting on http://www.eyeonspain.com/forums/posts-long-11682.aspx

It would appear someone has actually won a case against the Banks.  I think this now becomes a real positive way forward.  Everyone without a BG should seriously consider this.

Hi Trudge,

Got a reply from Maria de Castro today about actio against banks.I have sent you a PM .

can the persons lawers who "won the case" agiainst the bank, conferm they won and got paid or won and never got paid and now have to fight for payment??????winning case and getting paid are very different in spian

Just had an email from my lawyer at last!  Among other things, I asked him about taking action against the banks for not having issued bank guarantees. He said that the account opened by Huma for the money from buyers on ACC was a 'simple account' not a 'special account' as of the Act57/1968 so it would not be possible to take action against banks. Has anyone else received this 'advice'?

You say the Bank account opened by Huma for the recepit of the off-plan deposits was a Cuenta Corriente and not a Cuenta Especial.

So why did the Bank accept funds clearly referenced as off-plan deposits into an account which did not comply with the requirements of LEY 57/68?

LEY 57/68 Article 1.1 and 1.2 state:

First - To ensure the return of the payments made plus six percent annual interest, by means of Contract of Insurance granted with an Insurance Entity inscribed and authorized in the Record of the General Sub-department of Insurers or by means of a Bank Guarantee issued by an Entity inscribed in the Record of Banks and Bankers or Savings Banks, if the construction does not commence or complete for any reason by the agreed deadline.
 
Second - Receiving the sums advanced by purchasers through a Bank or Savings Bank, which must be deposited in Special Account, with separation from any other funds belonging to the promoter, which may only contain funds deposited for the construction of dwellings. For the opening of these accounts or deposits the Banking institution or Savings bank, under its responsibility, will demand the guarantee to which the previous condition refers.

The Bank or Savings Bank has an obligation under LEY 57/68 to ensure that the off-plan funds are held in a Cuenta Especial.  They also have an obligation to issue or to verify the existence of a Bank Guarantee or Certificate of Insurance for off-plan funds in their custody.

It is not the purchasers responsibility to ensure the funds are held in the Cuenta Especial.

The right to have the off-plan deposit secured in a Cuenta Especial and having a valid Bank Guarantee for the total value of the off-plan deposit which are granted to the purchaser under LEY 57/68 are of 'Caracter de Irrenunciables', which translates to 'Inalienable Character'.  This is stated in Article 7 of LEY 57/68.  The rights are so strong they cannot be waived, even by the purchaser.

Purchasers who were instructed by the developer to send off-plan deposits directly to the a Bank account as stated on the reservation form, contract or sales literature may still have case against the Bank for negligence and lack of due diligence.

Purchasers who paid their off-plan deposits to their Lawyer need to ask the Lawyer, why, if they were acting in the purchasers best interest, did they forward the off-plan deposits to an account which did not comply with the requirements of LEY 57/68.  The Lawyer should have checked the status of the account prior to forwarding the clients off-plan deposit funds.

Kind regards

Keith

Thanks for that information. We deposited the money with our solicitor in Spain who then transferred it to the developers bank account. I shall be asking him to explain the points that you have made in your post. I will keep you all informed  his response...if any!

You are welcome.

We must all keep focussed and never give up the fight.  We are asking for nothing more than our legal right to have our off plan deposits protected at all times according to LEY 57/68.

Your Lawyer has a duty of care over your off-plan deposit.  Once they received your off-plan deposit funds they should ensure that it is protected in their 'client deposit account'.  Only when they have carried out due diligence and established that the developers bank account complies with the requirements of LEY 57/68 and that a Bank Guarantee will be issued should they transfer your funds to that account.

Once they have transferred your funds to the developers bank account they must obtain a receipt for the payment and then do everything in their power to secure the Bank Guarantee on your behalf.

The Lawyer must at all times be acting in your best interest.

Who is your Lawyer?  Were they recommended by the developer or agent?

Kind regards

Keith

Muggins,

I will do same as you and also ask Solicitor about the accounts...see if we get matching replies again! did you pay the money through Currencies direct? as I did..... perhaps il try them as well!

TASM

Yes , we used Currencies Direct which were recommended by the agent (Parador Properties!) as was the law firm (Fusters). It would be interesting to know if anyone else has been given this so called advice about the court action against banks.

Hi all.

 Will all those who were interested in going for the banks with Maria,. Let me know if your still interested and if you have sent the data request forms back ,so I can get final numbers.

Thanks 

All

Reply from my solicitor:

I have had a reply from solicitor. He says:

So why did the Lawyer send your deposit funds to a Cuenta Corriente 'simple account' when LEY 57/68 clearly states that all off-plan deposit funds must be deposited in a Cuenta Especial - Special Account?

The bank who were accepting the off-plan deposits are fully aware of the requirements of LEY 57/68.  So why did the bank accept millions of euros clearly referenced as off-plan deposits into an account which DID NOT comply with the requirements of LEY 57/68?

The Lawyer should NEVER have fowarded the purchasers deposit funds until they had verified that the account to which they were sending the off-plan deposits complied with LEY 57/68 and was a CUENTA ESPECIAL.

The Lawyer should be acting in the purchasers best interest at all times and should carry out due diligence before forwarding the money to the developers Bank account.

When the Bank began receiving many payments clearly referenced as off-plan deposits into an account which they knew DID NOT comply with the requirements of LEY 57/68 - they should have, UNDER THEIR RESPONSIBILITY, demanded that the developer open the correct Cuenta Especial and transfer the funds into that account or freeze the account and return the funds to the purchasers.

If the Bank did nothing and continued to accept payments clearly referenced as off-plan deposits into the wrong type of account then they are complicit in the illegal activities of the developer.  If they then allowed the developer to withdraw funds that they knew were for off-plan deposits then they have compounded their negligence.

The Banks are regulated by the Banco de Espana.  The Banks are fully aware of the legal requirements of LEY 57/68.  They cannot just turn a blind eye and do nothing.

Kind regards

Keith

Has  anyone  yet  been  advised  of the  cost  involved  to take on the  banks, bearing  in  mind  there a quite  few banks involved.

Chandon

Hi Chandon.

We have been quoted 2000 euro + court costs .I have emailed Maria to see if this was for group action, but she replied saying there was only two had sent their data form back ,so im waiting to see if more join us and to see if this gets the cost down. We are serioulsly thinking of going for it ,but don't want to jump in just yet and waste more money, although she is sure this will work.. We  also think our solicitor should be doing more to help, after all he has had our money with yet again ,no possitive result and  wanting more money to try going for assets which we know is no good. How many more avenues is there to take, in my mind there is no more ,and in the mean time were bled dry.

I will let you no if i hear any more.

Hi Trudge,

I sent my completed data form to Maria on Tuesday but have not yet had confirmation that she has received it. I hope this course of action will work as I am desperate to get my money back

 There appear to be another couple of cases won -but the banks may still appeal.  

See this thread 

http://www.eyeonspain.com/forums/posts-long-11316.aspx

we have received our money back from huma through a solisitor from alicante who contacted us through e- mail he used our bank guarentee to get the money from the bank and we received it in 3 weeks it cost 10% to get ours back but was worth every penny any body that wants his address contact me on 07855744041 he told us he had names of people that had bought on acc but no contact details   

Hi Mike,

Well done, you must be very pleased to have your money back.  Most solicitors though don't have a great deal of trouble getting money back if there is a bank guarantee the problem is getting money back without one - here is a very different story!!

Can  anyone  confirm  that  they  have been to  court and  won  against the  bank for the  failure to  provide  a guarantee.  Have  the banks  refunded the  money  + legals and  interest.    If  this  is  correct  which  banks  have  paid.   This  is  good  news if that  is the case.   We  paid  our  money  to  Cam  bank,  any luck  against  them?

Thanks