Confirmed: Buyers deposits for Herrada del Tollo, San Jose covered by generic guarantee policy

Dear Nigel:

please find below the reply to some of your queries. I can't post here all the answers, because they could be against the forum's rules.

1. Can you confirm what legal processes have been undertaken to date against the ASGR Bank? I have represented a few buyers whose guarantees were given by SGR. But those enforcement's proceedings are already finished a the customers have already got their deposits plus interest back. No legal processes about the generic guarantee have been undertaken yet, because we want to make sure first in behalf of how many clients are we acting of. I have several meetings over the next three weeks with buyers of HDT and San Jose, who wants to meet me before confirming their decision about joining the class action.

2. How many people \ contracts GM Leagal are representing to date in this class action? Right now, about 10 contracts. But keeps growing.

3. Can you give an estimate of timescales invloved in this recovery action against the bank to bring this matter before the courts? To be answered through the private email facility.

4. Can you outline the legal processes invloved and advise an approximate timescale on each? To be answered through the private email facility

5. Can you advise if you require any further documentation from oursleves? I require original purchase contracts, payments’ receipts, and any communication, letter or document related to Bank guarantees request or delivery. I require also copies of your passports.

6. Do you require power of attorney to represent us in this matter? YES. The PoA can be made in Spain or in your country. If you come to Spain, we will send you for free the Form and the letter which explains you the process to produce it.

7. Can you advise of the likley total GM legal fee and its apportionment between members of the class action? To be answered through the private email facility

8. Can you provide details of other successful legal cases GM Legal have fought of a similar nature against the banks to recover deposit funds against a global guarantee? I am currently dealing with 6 cases related to global guarantees, but unfortunately we have no definitive sentencea for any of them yet. But one of them, against Caja Granada, could terminate next month, because the Bank is offering my clients to get principal, plus half of the legal interest and defense cost, and it seems my clients will take it and the out - of - court settlement will be signed in a court appearance we have in May.

I list of the latest cases won (with definitive sentences) is available on request. 

Hope this helps.

Best Regards,

Guadalupe Sánchez

GMLEGALEXPERTS

Hi All,

I should add we have had a quote from GM Legal on pursuing this matter as part of a class action and the fee quoted equates to: -

---  just under 6.25% of the purchase contract deposit monies we are looking to recover.  -----

(Note this is based on two Malva contracts @ SADM)

We have been advised that after the retainer fee (700 Euro) there is nothing more to pay until the matter is resolved in the courts, and of course assuming a win the Banks will pay the legal fee in any event.

For me this seems great value & we are joining the Class action.

It still seems like 1 to 2 years away, but at least its a massive positive move forward and maybe the only one for those of us looking to reclaim our deposits without the benefit of a specific contract guarantee.

Or waiting for HDT\SJ to repay the monies stolen which just aint gonna happen EVER!!!

Hi All,

I am very concerned that some of you may be tempted to follow a route that yet again has no gaurantee of paying you back a penny but will cost you in legal fees. I must ask and I ask it of every one of you, do you really think all of the solcitors who acted on behalf of all of the SADM creditors did not read this document and do you not find it rather odd that some one suddenly thinks that they can get liabilty on to a bank?  It is even more purturbing because the line of BG 's was for a defined amount, the document ( as far as I am aware) is just a notification of the existence of the funds avaiable for a BG and is not a BG & I have seen a few that purchasers have presented at UK meetings.

So who should we believe or trust? I know that it would be fantastic if there was a sudden and surprisingly new and overlooked way to get money back. But and I suggest that there is nearly allways a but what is the cost, how long would it take, how often would a bank appeal and what is the reall probabilty of getting a good outcome.?

SARC met with HdT recently and an update will be out soon and I would suggest that we all hang on to the money that we have and do not line any ones pockets no matter how good an idea it might appear to be. I will in the meantime ask a very helpful solicitor what he makes of the suggestion concerning the line of credit for BG documentation.

Wishing you all the best

Tony

 Dear TonyMal:

This message was last edited by Guadalupe. Lawyer on 11/04/2011.

This message was last edited by Guadalupe. Lawyer on 11/04/2011.

Dear Guadalupe, Thank you for your continued assistance.

Allow me to ask this in the general forum, rather than private.  I feel it is a question that may be better asked that way.

I understand that the law has been broken by the contractor and the banks, and that it is shameful for Spain and for the future of investment that this has happened.  I also am given to undertand that the penalty for this failure by the banks and contractors, is only a minor fine by the court and has no real potential for us to spend our money on, and pursue.

So, When you say: the first thing to be done, before bringing an action against Banks, is to file a Preliminary Enquire in the Court against all of them, to request the orginal policies (general and particular conditions).  Once we hold the general guarantee, we will be in the position to decide against which Bank we have a better case. 

Are you saying that you will be in this position and advise your individual clients, before you require the funding for the class action from us? 

I have no energy to pursue any action that is merely generating fees or being a minor result, so we will need to know that this is going to be more than the token representation we feel to have had already.

Regards

Brian

 Dear Briando:

what I meant was that before bringing the claim, a preliminary enquire will be filed in behalf my clients to request full copies of the general guarantees. This will allow us to prepare a better claim. So anyone who wants to join the class action will be involved in the Preliminary Enquire first. The Enquire is covered by the retainer too (no further fees are requested).

As explained before, we do not have full copies of the guarantees yet, so it is normal to request a copy through the Court before the claim is filed. The advantage of requesting copies through the Preliminary Enquire is that, in the event that the Banks try to hide information, the Court can order a search, or even can rule that the wording of the documents don't delivered by the Banks must be interpretated in our favour.

Hope this helps,

Guadalupe Sánchez

GMLEGALEXPERTS

Hi Gaudalupe,

I believe that SGR is not a bank but an insurance cover for BG's  and is an umbrella organisation for local business's. This raises several questions:

If the BG was for a defined amount of money and the company have paid out a  large proportion of that to creditors, surely they would have partly met their liabilty and reduced thei exposure?

You mention precendent but give no references, could you kindly do so?

You ask for money for a preliminary enquiry, which I would call a " fishing excercise"  & this is exactly what I told someone last night would be done by your company. So my question is that if you have taken €700 of hard earned money from people to go to the court to see if you have a case and they rule that you have not, will you refund the money?

I am so concerned by your behaviour  that I am in the process of contacting people in Costa Blanca to look into this and I wonder if you would lik to run this idea past the legal Ombudsman in Alicante and get and share his advice prior to taking anyones money?

Personally I think that you have little chance of winning such an action and that it would be throwing money away and a lot of people can not afford to do so. 

Kind Regards

Tony

Guadalupe,

Just so you know Tony is part of SARC and effectively works for HDT / SJ and has a vested interest in putting others off from seeking any means of recovering there deposit monies.

He and a few others still believe that somehow the SADM development will get built by HDT and he will have his dream villa at Santa Ana and that Alumdena is somehow honourable and not a crook who just needs putting in jail.

Now can we get back to the thread please of how to recover our deposit monies against ASGR and other banks?

Tony mal

For gods sake do your research and stop making your self look more of a dick than you are....

SGR are the largest Finance company in Spain. Most developers and builders in the last 35years in Spain have got some sort of finance from them.

Guadalupe is one of the best and most honest Lawyers I have come across in Spain and has ,managed to get deposits back for many people with BGs and with worthless bits of paper with runout dates on.  To date what has SARC managed to get back for anyone.......diddlesquat.

Please go ahead and  contact your people in Costa Blanca, the area where Guadalupe is well known hopefully you will be told by others what a dick you are.

Dave

Hi Dave,

Thanks for your  crass remark, SGR may be a finance company but that does not necessarily make them a bank. As for your stupid insult it really does show your mentality and I am pleased that you have you money back.

Nwetherall, Thank you for your slanderous comment ! I nor any of my colleagues on the committte or SARC are linked to HdT ,I suggest that you are a little more carefull before you make false accusations on an open forum. If you want to throw money away  that is your choice but I suggest that you make sure that any one who offers you a way to get your money back has a cast iron case that they have fully researched before asking you to pay a penny of your hard earned money to them.

As for this crass behavioiur of throwing insults around, it is time that every one grew up and strating behaving like inteligent adults. Stop and think about why DWF, Price Water House and other large legal and finanical firms have not pursued such an action? Some of the solicitors that SADM creditors had representing them were very diligent in trying to get a good out come for their clients.

Finally litigation is not cheap. How many of you have actually pursued litigation through a UK court let alone a court in Spain? Do not rely on getting costs back or any other advantage if you win and what if you loose and the other party gets costs awarded against you?

Wishing you all the best

Tony

Dear Tony

You say we all should hang onto the money that we have, but as it stands i have a 100% of nothing at the moment, with the possibility of 5% of my generous 65% refunded in five years time and the other 60% the year later, which means basically that my 35% i have lost has funded the build of hdt, luckily i am going out to spain in two weeks time and as guadalupe is quite near i will pop-in to see her and get and idea of what is possible, at least guadalupe is communicating with us which is more than can be said for san jose, yet again the only communication we get is when they want something from us. Also not sure why you think you have to get your people in the costa blanca to look into it and are concerned by her behaviour, i would of thought we all should be more concerned by san jose behaviour.

Best Wishes

Mark

Hi Glendale,

We are all aware of the past poor behaviour of HdT and if you look at the old SARC reports you should see that we have pointed this out to HdT at the very beginning. However, that does not mean that I go around in circles covering the same ground  and my concern is that DWF, Maria, Martin and loads of other solicitors have not suggested such a course of action. Also at this point in time we have not "lost" the money, there is still a legal liabilty to repay us or to provide a property and if HdT had been liquidated we would curently have no chance of getting anything back.

As for behaviour, I am truly concerend when some one suggests a course of action, on an open forum, asking for money and also states that they need to get the full information regarding the key point upon which to base a case. If when in reciept of the full information, what will happen if the strength of a case is found wanting , what if it will cost more, what if there are appeals and escallation to higher courts? Can I also ask this:

If you assume that a document covers 10% of the deposit value and it has paid out BG's of about 50% leaving 5% deposit value, what probabilty do you think there will be of getting all your money back? Also consider that legaly HdT are liable for 65%, as per the court ruling, so what percentage would you try to get back and what is the risk benifit relationship between what you need to spend and what you could possibly get back? 

It is your money and it is right for every one to decide what is the best course of action for them but just please be careful, we have all seen enough money put in jeopardy with out risking more.

I wish you all the best, a pleasant trip and good luck

Tony

Hi

My immediate question to my lawyer was : Why did the Director of HdT not know about the existance of this generic bank guarantee?

The reply from my lawyer was : Actually I think he knew but he did not want to disclose the issue, as San Jose and HdT would be liable for the refund of the money to the bank.  His heart (to say it some how) was not with the clients but with HdT.

Regards Chrissie1.

Tony

I fully understand people be sceptical when someone post on forum, but without meeting or asking we would never know, also still not convinced that hdt would ever pay out court ruling or not, just don't trust them one bit, so if there is a posibillity of getting something back without being detremental to me then i would consider it as a course to take. As i said earlier if hdt would only be more communicative with what is going on now, month by month instead of bi-annually maybe we might have a different outlook.

kind regards

mark

Dear Tony:

you can investigate about me and my professional behaviour as much as you want. I have nothing to hide and I would be pleased if you post the opinion that my former customers have about me.

On the other hand, your hesitations are legitimate.

Regarding SGR, it is a Sociedad de Garantia Reciproca. They just provide Financing, but not banking services. However, they are legally considered as a Bank or financing entity, pursuant to the article 1st of the Act 1/1994, de 11 de marzo, sobre Régimen Jurídico de las Sociedades de Garantía Recíproca. However, SGR is not the only financing entity who provided General Guarantees to HDT and San Jose: there are General Guarantees provided by Banco Pastor, BBVA and CAM.

The Preliminary Enquire is not going to be filed to find out wether we have a case. I can assure you that we have a case, but the more information we have, stronger and better will be our petition. And the best way to get as much informationas possible is through the Preliminary Enquire.

Regarding Precendents. Please find below some references of sentences from diferent Spanish Courts about similar cases (or even worst):

- Sentence from the Tribunal Superior de Justicia de Navarra. Recurso de casación foral 38/2008. Date 10/22/08. In this case Bank is sentenced to refund deposits to buyers because a General Guarantee was  signed with the builder. Bank allegued that money was not transferred into an Special Account, but Court considered that it is not relevant, because the details of the special account were not provided on contracts, so there was no way for purchasers to know in which acount they should credit the deposits. The builder should have done it, and the Bank should have requested the builder to do it. Your case is tronger than this one, because Banks involved provided individual guarantees to some owners, despite deposits weren't transfer into an special account. 

- Sentence from the Audiencia Provincial de Santander. Recurso 289/2009. Date 03/17/10. Same than above, but the general guarantee covered a limit amount (Bank agreed to provide guarantees until the limit covered was reached). The court says this limit goes against the law 57/68, which is ius cogens (imperative rights...)

- Sentence from the Audiencia Provincial de Barcelona. Recurso 664-A/1999. Similar than the first one.

- Sentence from the First Instance Court of Madrid, nº 57. Sentencia 599/2010. Date 04/16/10. Bank is sentenced to refund deposits to buyers, despite not general or individuals guarantees were signed wit the builder. Bank was aware that all the money being deposit in the current account came from buyers, and that the account holder was a builder (the provided financing to the developer). Therefore Bank should Bank controlled the funds withdrawall and request the builder bank guarantees.

And many others more (you may undertand that I do not post the whole list). 

After this post, I hope you understand that we have a case. Even if you don't want to join us. I am not here to encourage people to appoint me as their lawyer, make money, and then forget about it. I am here just to inform and assist, and make my job. But you are free to decide and have your own opinion about this matter.

Best Regards,

Guadalupe Sánchez

GMLEGALEXPERTS

Dear   Gaudalupe,

My comment on behaviour  is due to my concern that comments are being made by a professional with the appearance of seeking clients on a forum upon which some of the readers may be desperate and vulnerable.   As for the validity of your case that will depend upon the accepted interpretation of the document and what it contains, case law, how much liabilty can be asigned to a finnacial institution and what case law can be used to refute your position etc.

I  quote from your earlier post  "what I meant was that before bringing the claim, a preliminary enquire will be filed in behalf my clients to request full copies of the general guarantees." I conclude from this that you have not read the full document and all of the clauses or possible restirctions etc covering it. Therefore, without full knowledge of the document you are asking for money to be paid prior to recieving it and fully understaning its content, rather than afterwards. I would suggest that if you believe that you have a strong case that it would be appreciated if you applied for, read and absorbed the full meaning and applicabilty of the document prior to asking any SADM creditor/purchaser to part with their hard earned money. 

I did earlier ask if you have any referneces of relevent case history that would support such a venture. Also as the document has a defined financial liabilty assigned to it  and has  had some payments made against it etc I wonder as to what its financial value/worth would be in such an action? Further more, how would the court view liabilty, as HdT retain liabilty for 65% of the money in the eyes of the court?

I am very sceptical of any one who suggests a course of action that costs  those who follow if money while not giving the probabilty of outcomes, values of returns, the time frames and costs for the legal action, including appeals etc. I am further concerend that there are many who have allready enough of their money in jeopardy without risking more.

I personally have pursued litigation in the UK and when doing so I allways make sure that I am 99% certian of my position and facts before commiting money to legal action. In doing this I have won 3 court actions and received 2 out of court setlements. I am therefore, well aware of the difference between what is possible and what is probable. I am afraid on a risk benifit analysis I have to say that i personally find the probabilty of a worthwhile and positive outcome rather low and would not entertain risking any of my money in such a venture.

All the best

Tony

Guadalupe

Thank you for confirming this. I was also told that this generic bank guarantee was issued for about 6.5 million euros but this figure is not ultimately confirmed.

I am hoping that this proves to be a positive way forward and I for one am very grateful to you.

Regards Chrissie1

Dear Gaudalupe,

I have reposted my post to you as it appears that you have missed it and have not responded to the queries that i have raised and I have very serious concerns about the extent of liabilties that may or may not be able to be assigned to one or more parties. Furthermore, whether there is a ceiling on liabilites etc

Kind Regards

Tony

Dear Gaudalupe,

My comment on behaviour is due to my concern that comments are being made by a professional with the appearance of seeking clients on a forum upon which some of the readers may be desperate and vulnerable. As for the validity of your case that will depend upon the accepted interpretation of the document and what it contains, case law, how much liabilty can be asigned to a finnacial institution and what case law can be used to refute your position etc.

I quote from your earlier post "what I meant was that before bringing the claim, a preliminary enquire will be filed in behalf my clients to request full copies of the general guarantees." I conclude from this that you have not read the full document and all of the clauses or possible restirctions etc covering it. Therefore, without full knowledge of the document you are asking for money to be paid prior to recieving it and fully understaning its content, rather than afterwards. I would suggest that if you believe that you have a strong case that it would be appreciated if you applied for, read and absorbed the full meaning and applicabilty of the document prior to asking any SADM creditor/purchaser to part with their hard earned money.

I did earlier ask if you have any referneces of relevent case history that would support such a venture. Also as the document has a defined financial liabilty assigned to it and has had some payments made against it etc I wonder as to what its financial value/worth would be in such an action? Further more, how would the court view liabilty, as HdT retain liabilty for 65% of the money in the eyes of the court?

I am very sceptical of any one who suggests a course of action that costs those who follow if money while not giving the probabilty of outcomes, values of returns, the time frames and costs for the legal action, including appeals etc. I am further concerend that there are many who have allready enough of their money in jeopardy without risking more.

I personally have pursued litigation in the UK and when doing so I allways make sure that I am 99% certian of my position and facts before commiting money to legal action. In doing this I have won 3 court actions and received 2 out of court setlements. I am therefore, well aware of the difference between what is possible and what is probable. I am afraid on a risk benifit analysis I have to say that i personally find the probabilty of a worthwhile and positive outcome rather low and would not entertain risking any of my money in such a venture.

All the best

Tony

This message was last edited by TonyMal on 12/04/2011.

This message was last edited by TonyMal on 12/04/2011.

This message was last edited by TonyMal on 12/04/2011.