Lack of Bank Guarantees. Bank´s responsability. Case Law

goodstich44,

Both my conveyancing lawyer and my current lawyer are practicing Spanish lawyers.

Are you saying that there is a time factor involved with regard to claiming from my original Spanish lawyers insurance.....if so what is it ?

belucky358

I'll check my records to get this straight, but yes, in the end we couldn't bring a case against our conveyancing lawyers due to the time we had taken to complain about their services. Claiming for not having a BG has I feel been a bit of a grey area, so we were advised to try and get our money back from the developer, which we would have, had they not gone bust during the two year court delay.

I'll check my records to get this straight, but yes, in the end we couldn't bring a case against our conveyancing lawyers due to the time we had taken to complain about their services. Claiming for not having a BG has I feel been a bit of a grey area, so we were advised to try and get our money back from the developer, which we would have, had they not gone bust during the two year court delay.

Who advised you that you should go after the developer.........another lawyer I presume ?

It makes you wonder if there is a problem in Spain with one lawyer assisting/advising you in going after another lawyer ?

With regard to time scales in bringing a case against a lawyer, possibly Maria, could give us an answer ?

The querstion needs answering if you can only win a case against the lawyer if it is linked to proving that the developer breached his contract from the outset. and thereby you need to go through this legal process to cancel the contract first i.e. you presumably cannot take action against the lawyer independently of such evidence.

Also if this proof of breach is necessary then presumably you can only win such an action against the lawyer AFTER the developer's appeal has been resolved (which as we all know takes an eternity these days). Is this correct Maria?

Does this then mean that action against the Bank becomes unnecessary under these circumstances where a BG was not provided from the outset , as you have a viable claim against the lawyer (their insurance)?

Thanks Maria, but where do we stand if we didn't have a lawyer in the first place and the agent promised to do everything as long as the stage payments were paid on time?

Can the agents then be held accountable for failing to provide the BG?

Kind regards

Lin

Tez,

I would need to see the contract between you and the agents, in order to see in written the promises they made to you within the mandate commitment.

Please feel free to send a copy of it to us for our perusal,

Best regards,

Maria

Dear All,

as I understand it, in the UK the Law Society will provide you with indemnity insurance details of law firms and individuals.

is this the same in Spain?

submitting an insurance claim should not involve a court or even another lawyer.

however the mind boggles at the thought of Spanish Loss Adjusters and the bigC, are there Loss Assessors to assist?

someone somewhere must have been here before

many thousands of euros must have already been spent seeking these answers

will no one share?

does Miket know anything?

Regards

Norman

Could this be the way forward, it would appear that the good people of Northern Ireland are showing us how to engage our governments and get the much needed publicity.   I think there are approx 100 people involved, yet "our" thousands are ignored ?

My next trip to Belfast is scheduled for the 26th of January, when the group representatives and myself will be meeting NI Government officials appointed to act on behalf of the Office of the First Minister and Deputy First Minister. If we can successfully convince them of the beneficial implications of the NI Government joining the Spanish Court case, both in terms of support for the group action but also on behalf of the NI society in general, we will have achieved a huge result

This was the latest  from Mr Flore's Blog at Lawbirds

You make a very valid point here belucky, and thank you for bringing this to our attention.

We have said for a long time now that the way forward should be to bring everyone together regarding the lack of Bank Guarantees. Hence Keith's detailed research and his petition.

Unfortunately Mr Flores does not appear to agree with Keith's petition (although I am very confused why he should take this stance) and sadly it appears to have split the unity of those who are suffering the consequences of Bank Guarantee abuse.

I wonder therefore if Maria (and other lawyers perhaps) would be prepared to take on this challenge and if a meeting could be organised in the UK to bring this matter to the attention of our government, as Mr Flores has done with the NI government relating to the case against Ocean View Properties and Sun Golf , where clients at the Estepona Beach and Country Club have deposited 6 million euros?

As belucky has observed we have to somehow bring everyone together on this issue and stand united to bring this to the attention of our UK government and thereby gain the much needed publicity.

belucky358

well it's interesting, and worth following the progress for sure, but to me it reads as a very expensive 'jolly' for Antonio, paid for by very wealthy cheated investors, in return for a  meeting with a representative of the NI government.  If it works and it paves the way for ordinary folk as well as the super wealthy then great. Hopefully a step in the right direction, but hard to tell at this point?

Goodstich,

Is your inference then that Keith's petition should suffice in bringing this to the attention of the UK government? Are you concerned that this meeting may be perceived as an ambulance chasing exercise?

ads

 I'm not sure? . What concerns me a little with this is the people who have bought this forward?  Is it an exercise to get justice for a select few?.  I hope that's not the case of course, and  I'm probably being over cynical as I wouldn't  think Antonio would want  this to be seen as a 'white envelope' job,? and I realise these things have to be paid for, and if we could get the serious attention of our UK government, then any route is worthy of consideration.

Dear Maria,

I have some outstanding questions that I would be grateful if you could address, relating to your EOS tip 426 ARE LAWYERS LIABLE?

In order to take action against a lawyer who has been negligent in not providing the required banking details relating to the Bank Guarantee within the purchase contract as per Law 57/68, and thereby not ensuring that the BG was made available prior to agreeing the contract, do you have to have first prove the effects of this negligence by demonstrating a case win against the developer who had breached their contract, or is this irrelevant/unnecessary?

If a case win is necessary, then if the developer appealed that first instance case win, does the purchaser have to wait until an appeal is fully resolved by the judge, before this evidence would be accepted? Does this process in effect have to be completed before a negligence case could be won against a lawyer?

How does legal indemnity come into this action? Does the action have to be taken directly against the insurance company, or is action taken against the lawyer who then reclaims their losses against the insurance company?

Is there a time limit associated with this legal action?

Is this considered a separate action from the Bank claim route, and as such, for those who have not been provided with a Bank Guarantee, nor been provided with the banking details of where their monies were deposited, does the claim against the Bank then become redundant/ unnecessary?

In the instance where a cheque from the client account was paid to the developer by the conveyancing lawyer representing the client, is this also a negligent act, as the lawyer effectively places the client at risk by losing control at that point of how and where the monies were to be used by the developer? Could in effect the developer pay that cheque into a personal account etc?

Hi  Ads, Goodstich and others.

This has just come in on the Global edge portal, I've just skimmed it for now but it appears to be good news.

http://www.globaledge.co.uk/news/spanish-court-makes-landmark-property-43606

s

Team GB

Thanks for pointing that out, certainly a move in the right direction for those with a BG that banks are trying to avoid paying out on.. It would be great to see a similar ruling on a case where the victim was never issued a BG. That remains a grey area  at the moment and to risky to take action on.

The more cases like this, where a win is based on common sense despite dodgy small print, the closer Spain will get to a justice system that can be trusted to recognise right from wrong consistantly.

Looking at the articale again, it seems the firm involved worked on a 'no win no fee' basis - Norman

Team GB

yes, I was suprised at that. I thought there were no lawyers dealing with Spanish property prepared to do that?. 

Thanks TeamGB.

Looking into the details of that firm, they will retain a success fee from the proceeds and there appears to be minimum requirements i.e.

Please register your interest and confirm the minimum requirements

1. I have ( or can obtain) the original Private Purchase Contract.

2. The property is unfinished.

3. I have not started a legal case.

4. The property is in Spain.

 Some interesting observations on their part which I've highlighted in red (but they appear to make no mention of lack of BG).....

1) Legal Action Against the Developer – This is the most lengthy and costly course of action. Once a case has started the developer will avoid further negotiations and rarely accept liability. In fact, in the knowledge it could take up to two years, the developer has effectively bought himself time to complete the unit before the hearing and thus get the case thrown out. Courts do not want to cancel contracts as tax revenue is lost. Class action keeps costs down and makes for a stronger case and, should the developer be in receivership, we will sue holding companies and / or financing banks and / or insurance companies underwriting any bank guarantees.

2) Negotiating With the Developer – This can provide more immediate results but very rarely will a refund be offered without a court order. Most likely outcomes are discounts, payment of interest for the delay or switching your deposit across to a completed unit.

3) Selling Contract to an Investor – There is a growing number of individuals or investor groups who will purchase private purchase contracts at a discount. They will either be looking to complete on your unit if the development seems viable or take on the court case in the belief they can recover the full deposit. Again, a more immediate solution which also brings closure on the whole episode.

4) Switching to a Completed Unit on Same Development – Many developers will offer this, although it can be a poisoned chalice if you’re intent on getting your deposit back. The developer will see it as a solution to the claim of ‘breach of contract for delays’ and any court would undoubtedly side with the developer. Should you turn down the comparable completed unit you need to be very clear that the replacement is unsuitable or inferior to the one originally purchased.

5) Switching to a Completed Unit on Different Development – Some solvent, stable developers are willing to take over your reclaim fight in return for switching you into one of their completed properties. They will discount this unit by up to 100% of your current deposit. The new developer will then take up your deposit reclaim case and, if they win, keep the money or a substantial percentage. If they lose, you still have a completed property.

 We do not charge a fee for services. Instead we seek to take a percentage of the reclaimed deposit, a percentage of any offer made to the client by an investor or a percentage of any deal made with the developer as a ‘success fee’.

p.s. Just picked up this from their site

"At the point of breach

Many developers will attempt to delay until completion of the unit occurs. Once the unit is finished the courts are much more likely to side with the developer. This is for two main reasons. Firstly, the unit is finished so the court finds the delays to be academic. You may possibly obtain compensation interest but are unlikely to get the sale cancelled. Secondly, every sale they cancel is less money to the local economy and the local market needs your money. In many cases these overseas economies have been built on overseas property investment and don’t want to see it go. Refunding your deposit may also mean refunding tax that has been paid.

Many purchasers win at court but still do not receive any money back from the developer.

Many sued developers are almost bust and have little or no funds, so taking them to court and winning does not always mean you will get your money back. We can investigate suing parent companies, banks and insurance companies and negligent lawyers who do have money.

"

This message was last edited by ads on 20/01/2011.

This message was last edited by ads on 20/01/2011.

This message was last edited by ads on 20/01/2011.

ads

I wonder if they would take the courts on for unreasonable delay on a 'no- win no- fee' basis??  Be good wouldn't it!.

Can anyone with the required knowledge i.e. A  LAWYER  please take a few minutes and answer the questions asked by ads on 19 Jan 2011 17.23.

It may be depending on the answers we are given, that any person can claim from the lawyers insurance providing that, the lawyer has been negligent, such as, not including certain information in the Contract, e.g. :-

1) Bank details of where the deposits are held.

2) Deposit Account numbers.

3) Completion date of off plan purchase.

4) Bank Guarantees.