Waiting for a sentance from the court

Hi everyone i was just wandering if anyone like me has been to court regarding execution of a bank guarentee and are still waiting for a sentance? I went court in March 2009 and am still waiting to hear! is this length of time normal? Can people who have won their cases at court please let me know how long their wait was for a sentance? And people who have been court and like me are still waiting, tell me how long they have waited. Thanks in advance

You can never know with Courts! The best thing to do is to perform periodical checks on the file before the Courts.

Hi Maria, thanks for the reply. Could you explain what you mean by periodical checks on the file before the courts means please.

Thanks

Hello everyone.  I just wanted to point out that it is not only the appeal system that delays justice being carried out. 

We went to court in 2008 the case took months to get to court as the developer refused to acknowledge any letters, bureau faxes, emails etc. The case went to court without them and this then took until April 2009 when the judge ruled in our favour for return of deposit, plus interest, plus all legal costs. Again they would not acknowledge any communication which meant our lawyers had to go to court to ask judge to allow us to access their assets and bank account, this still has not come through, and still we wait. 

So you see there are many scenarios that can delay the justice system.  We have signed Keith's petition and our lawyer is also pursuing the bank for the return of the monies paid through LEY 57/68.  We are not sure what this would mean if we won the case against the banks, would they also be responsible for the interest and legal costs, could they then appeal or ignore sentence and take up to another 12 months, I don't know.

Also one other thing that I cannot understand is when the builder takes your deposit plus IVA 7%, what happens to that money  (government tax), does the bank hold it, does it go to the government or is that just lumped with the deposit, giving the bank and developer more interest. Also what happens to our house during all these years of waiting, which legally 40% should still belong to us, it is getting into disrepair is it flooding?

It is now 4 years this month since we paid our deposit on a house that was complete.  So to answer one of the original contacts question, the time can take anything from 4, 5 even 7 years. So don't hold your breath.

R and G

We too suffered at the hands of court delays. Our enforcement order took 13 months after petitioning before it was even issued, never mind enacted, and in the interim the developer asset stripped. The developer appeal following our case win was back in 2008 and although the company is still trading we still await a resolution from the judge. It's an absolute travesty of justice what is happening right now, and many are being significantly compromised by these court delays and delays from the judiciary.

Unfortunately a win is only classed as a win at the point of return of monies as far as I'm concerned, and sadly not at the point where you achieve a successful judgement.

Having said all of this I still feel strongly, like Keith,  that we should not let these circumstances deter us from seeking justice. We need to remain determined to regain our monies and stay pro-active in that cause. Hopefully this will be with the support of everyone who can recognise that these instances of injustice do Spain great harm in the process.

hi everyone,

Our solicitor last week got an enforcement requesting the banc de Espana to put the money in court.  Has anyone else been in this position?  Does it mean a solution is near or will we still be talking about this five years from now.  It is more tha  five years since we paid our deposit and more than three since the contract was terminated.  We have been to court twice, both times the ruling was in our favour.  We had a bank guarantee (bank of Galicia) but did not pay up.  Now as far as we know the Bank de Espana is the guarantor for the other banks.  Do you think we will get our money any time soon?

rosegreen

Good news from Maria and Costaluz

First Instance Court decissions are coming now.

Received copies during the last five days from two different colleagues of mine who have won cases in First Instance Courts:  in Malaga and Madrid.

The Madrid one specifies that even when there was no Bank Guarantee and the Bank allegates that the amounts were not deposited in a special account, the Bank clearly  knew ( as being the financer of this initial deposits) that the amounts were for an off plan purchase.

By a good interpretation and application of provision 1.2 of Law 57/68, and Law 57/68 objective as per Supreme Court considerations,  the Madrid Court makes the Bank liable of the refund, plus legal interests, plus legal costs.

We are advancing! Balance is coming! Good for my colleagues and for Judges too!

Agreed, this is indeed good precedence, but sadly we need to see return of monies as per these first instance judgements before we can afford to  celebrate. Have the Banks appealed these case judgements?

Please keep us posted and advise when monies are actually returned.

Sorry if I sound cynical but all too often we hear of appeals following first instance case wins and rarely do we hear that monies have been returned as per the successful judgements.

Maria informed of the following on another thread

"Initially CGPJ and Defensor del Pueblo are the best instances to report failures of Courts organisation and functioning

Yes, Lawyers can report defficiencies of the System to the CGPJ and I assume they shoud be motivated for the change as in every ocassion the system does not work at the required level, we, lawyers, are also damaged in our work."

so it's essential that all  good lawyers report back the obvious deficiences in the system to those responsible on behalf of their clients, if we are ever to see true justice prevail.

 Rosegreen:

I do not quite understand your situation. Was there a Court Decission against a Bank in Galicia that now Bank of Spain is honouring? 

Regarding the Madrid case: The Bank did not appeal the Decission in Madrid so is paying back. I will be asking the colleague who have won this case about the actual refund to his client and will let you know.

This sounds very hopeful Maria. Thank you for your update.

Have I understood this correctly that this case relates to non provision of bank guarantee?

This is good news and shows regardless of an off-plan buyer receiving a bank guarantee or of one being in place it is still being enforced becuase it should have been etc

I would guess only about 50% of buyers ever received a gaurantee.

If this type of logic was used more often then people might have some hope in the legal procedural system of Spain ....

Hope this opens the flood gates .....................

Yes, let´s hope this will open flood gates for energies to come back to ordinary people!

We will feel more re-energised when the major court delays are adressed too Maria!

Please can you confirm if this success related to a case without a Bank Guarantee?

That is good news Maria. But ads is correct, is there any chance in sorting out the delays in court procedings? Its a joke how long i have had to wait for my sentance, its torture and i do feel sorry for you and your team as i expect you recive numorous emails from clients asking when will this happen etc etc and to be fair your none the wiser then us. My life with my partner is on hold untill this fight against the bank has come to an end, every day that goes past feels as though i will never see my deposit again which is horrendous.

Without doubt these delays are crippling the justice system and are the major cause of concern to us all. They are the stumbling block to achieving return of our monies. This is the reason I was looking for a means of reporting complaints to the justice department via ALL the lawyers who are representing clients suffering these delays. Keith's petition is also a powerful vehicle to achieve this if only everyone would provide their details. (www.bankguaranteesinspain.com)

This message was last edited by ads on 22/10/2010.

This message was last edited by ads on 22/10/2010.

Hi Maria,

Yes,  on the 22nd of September the court in Malaga requested the Banc de Espana to lodge the money in the court.  We met a court officer in the Palacio de Justicia this mmorning with our lawyer and she saw the document making this request.

rosegreen

I will repeat:

Good lawyers should be taking the responsibility for their clients themselves and report back complaints of this nature to the relevant colegio, consumer associations, ombudsman...... it's not good enough to keep passing the buck back to the clients as many are in ignorant bliss as to how to complain, especially given the language difficulties.

Come on good  lawyers, step up to the mark please and report back your findings of delays that are compromising the application of justice..

Has anyone else (either lawyers or clients) followed this through or am I hitting my head against a brick wall here? Has anyone witnessed any response from the CGPJ?

All clients should be insisting these instances of delays are reported to CGPJ and evidence should be retained as proof. I suggest thereafter these should be presented as part of an official complaint to the EU. Does anyone have any other ideas of how we should be capturing the undeniable evidence relating to the non application of justice? We need to be much more proactive in this. It's not good enough to just moan about the status quo.....

Keith I have a question for you regarding your Bank petition....... do you have plans to submit evidence of delays to the CGPJ as a mass complaint, and if so, when will this be? My concern is that for every week that passes, the situation gets worse, and without formal complaints to act as proof in the interim we will never get anywhere. Could you stagger your complaint evidence in some way so that the complaints are ongoing, and do you plan on forwarding these complaints to MEP's and the EU? I'd be grateful for your feedback on this.

Hi everyone

This is my first time posting and I've been following this for a while but have not yet commented. There are enough good comments and to just simply post to say I agree with you seems a bit of a waste of good reading time. (I'm a slow reader you see). I feel that the two cases Maria has highlighted, Malaga and Madrid, are certainly a step forward and are most welcome. However I have a question that doesn't seem to have been asked before. What if the developer gave a bank guarantee that was a dud. Apparantly there are some cowboy companies that are not authorised to operate in Spain. Mine was with the Swiss Financial Corporation and I am wondering whether I come under the category of having a bank guarantee or not? The Bank that received my deposits was CAM. Bank. Any thoughts?

I think everone in Europe should sign Keith's petition. We need to have some clout.

Hi Rambi,

As far as I'm aware, it's classed as non provision of BG I'm afraid.

Take a look at http://www.dgsfp.meh.es/sector/entidadesnoautorizadas_in.asp for list of companies not recognised in Spain.

This message was last edited by ads on 22/11/2010.

Thanks ads,

I know that Swiss Financial Corporation is one of the non authorised companies. When you say 'non provision' does that mean I have no chance of ever getting my deposit back?