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johnmfranci5
I think due to corruption from both sides, our government or the EU have no intention of standing up for all those so badly cheated, and that fact isn't lost on the Spanish government. They are all as bad as each other I feel now, and I have lost faith in justice and most of those who work within the Spanish justice system. It seems all those cheated can do is write to whoever we can and sign the well meant petitions that fall on deaf ears, and then just wait, and for how long???????
Until someone in a position of power has the balls and integrity to do what's right for those so clearly cheated by Spanish injustice, then we will continue to be pawns in their sick games of corruption, deception and plain lies, and it seems we are supposed to accept that from the UK, government, the EU and the Spanish government as 'Spain' or walk away.......or face years more litigation with no idea of the outcome?
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Dear Goodstitch,
when are you going to post your own "brilliant" lawyers reason's for not pursuing the bank guarantee route??????????
although as "lawbird" he posts here occasionally he wont bite himself so it is up to you.
we know what Faro thinks
why the secrecy?
Regards
Norman
_______________________
N. Sands
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norman
the reason Lawbird give for not taking action against the banks is because they feel that there's not a big enough chance of the courts coming out in favour of those cheated. They say to me ''show us the evidence of somebody in your situation actually winning their case against the bank''.... and even more importantly to me , actually getting their money back?. So can someone show me that evidence?.
Maria obviously feels that the bank route for those with no BG is the way to go, and of course I would love to think that we could get justice by this route, but we have to feel confident that the odds are very much in our favour, otherwise we could find ourselves in a worse financial position than we are now and once again be made to look stupid because we believed in the Spanish justice system.
As for comment about my own ''brilliant'' lawyers, they are your words Norman. I have stated many times that after being cheated by a UK agent, a UK lawyer and then a Spanish lawyer, Lawbird did win our case against Aifos and the UK agent so of course I felt they were worthy of praise for that. Since winning our case and still being left with nothing I have to question if the action Lawbird took against the developer was the best route, and if we would have stood more chance of getting our money with the no BG route?
Lawbird and maria obviously have different opinions on that, and I'm still not really sure we know the reasons, or who is right?.
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thanks excellent reply as always goodstitch.
One thing though , if I ever hear of Aifos doing a stand at some property exhibition in the north of england where
I am based I shall strongly consider spending the day next to that stand making damn sure anyone who approaches it is made fully aware of what type of people they would be dealing with should they wish to pursue anything !!
I suggest everyone similarly considers doing the same should they get to know of any similar exhibitions near where they live.
In fact I think this strategy could be applied to any Spanish propery exhibition ! Spain does not deserve single penny more of UK property investors money in my view and a strategy of deterrimg ALL uk based would be buyers in Spain may help us somewhat.
This message was last edited by johnmfranci5 on 08/04/2011.
This message was last edited by johnmfranci5 on 08/04/2011.
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Again:
I do not recommend to leave the presence in the creditor´s meeting but honestly,there is no much to be obtained from there. Credits are classified very unadvantageously and the results are very poor.
Taking into account that the legal order has provided for this off plan buyers to be safeguarded through clear and innovative systems of Money Guaranteeing... why then to burden them with the weight of going through the nightmare and length of the creditor´s meeting?: a mechanism that just "protects" developers, if so.
Law 57/68, if well applied, was supposed to have been a great tool for a sustainable off plan development in Spain. Big shame that it is a Law which has been deeply mis-understood, mis-applied, mis-commented...
It is not fair that consumers, having a legal mechanism in place for the protection of their money, are conducted to be restricted to the rules of a procedure which is aimed to protect the opposite party: the developer. It is even more unfair as this mechanism is used as a last recourse due to lack of enforcement of the obligations that Financial Institutions have on this all.
Law 57/68 sets a guarantee mechanism for people who risked big amounts of money against a plan. And made financial institutions risponsable ( provision 1.2 of Law 57/68) on verifying on the existence of the Guarantees.
Defense for people like you need to be performed, as a matter of justice, within the ambitum of the legally required protection and protectors.
Creditor´s meeting does not protect you at all!!
Maria
_______________________
Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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Maria
this below worries me about your last posting,
Law 57/68, if well applied, was supposed to have been a great tool for a sustainable off plan development in Spain. Big shame that it is a Law which has been deeply mis-understood, mis-applied, mis-commented....
......words like 'if' and 'supposed' and 'missapplied law' don't inspire confidence in those seeking real justice! We need to know that if a law is in place it will work in favour of the victims?. Many of the problems in Spain are due to these very words. We know the laws are there, and your theory is fine, and of course we should be able to claim against the banks, but can you be confident we will win and get our money back? Do you have the positive evidence that Lawbird have challenged me with?
Please don't take my words as an insult, but we need to know if the courts will stand by their own laws?. The fact the laws are there often means nothing in Spain as you know, so why should we believe that we can be confident of justice now?
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Goodstich: Law establishes clearly risponsability of Banks when there is no Bank Guarantees. Provision 1.2 of Law 57/68. There is also of course a negligency by the lawyer if he did not try, but, as Law 57/68 established very clear an firmly on this liability, we need to try this first. To answer your question on if anyone has succeeded on this: I cannot know as there are many cases which are not public ( those which do not go to Appeal), I am sure there are. To my knowledge there are cases where part of the money not covered by a Bank Guarantee is being refunded by the Bank to the client by using the 1.2 argument.
Johnfrancis: Thanks for your kind support. We understand this as being good for the reform of our finacial system first hand. Banks need to put people at first level of their professional obligations, which is just a matter of order.
I would suggest people to add Keith petition. Definitely.
_______________________
Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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maria
if you can provide the evidence of a few cases where Provision 1.2 has been applied and the victim has had their money returned, then I can go back to Lawbird and say ''look at this, what are you doing to get justice for me using this route?''. Unless you or anyone can provide this evidence, then with respect I have nothing to challenge Lawbird with?.
If you are saying that we also have to prove that a lawyer wasn't negligent, then what chance does anyone stand?. How many lawyers will discredit another lawyer in Spain, and even if they do, how long and how much would that cost? (in my case the lawyer's gone bust anyway, so the bank would be the only one I can claim from).
If the creditors meeting is useless and we will get nothing, then I agree that we have to look at other options, but we have be sure that we won't end with worse than nothing by claiming against a bank?
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Goodstich: For your enjoyment! ;)
Legal tip 420. NEW! Bank risponsabilities ex 1.2 Law 57/68: new case law
31 December 2010 @ 12:03
Very recent, dated the 25th of November 2010:
Case Law by Cantabria Appeal Court, section 4, in Santander. A new great judicial understanding of Law 57/68:
Some relevant statements of said Court decission:
In THIRD paragraph: Law 57/68 aims for the protection of the buyer when he advances good amounts of money before the house is built, covering breaches of the developer and unsolvency ( more or less fortuitous) as it has been frequent in recent times. The rules contained in said Law are imperative and cannot be waived. The advanced payments of the buyer before the building, is balanced with the obligation of the existence of this Guarantee or Insurance Policy ( several Court decissions since 2005 to our days back this).
It is a matter of contract balance again. Balance of risks and guarantees.
In FIFTH paragraph: The imperative and inalienable rules contained in Law 57/68 are obligatory to developers, banks and Insurance entities. The breach of these obligations by professionals: developers and financial institutions can never be to the detriment of the buyer.
In SIXTH paragraph: The legal relationship between buyer and Financial Institution it is not out of the contract but out Law 57/68. Law requires the financial institution to guarantee all deposited amounts:
1. Through the opening of a special Bank account
2. Through the custody of said special account so that all the amounts paid as advanced payments are effectively deposited in said account.
3. Through the transfering into that account of all amounts which might be paid into a different account
4. Through the vigilance for all the amounts to be used for building purposes.
The Finantial Institution needs to know the business of the developer and request this to notify in an exact way all amounts paid by each one of the buyers so, the Bank Guarantee is for all amounts.
The only statement that it is not in this Court decission, because it is not what the Judge is deciding about with the same is what Law 57/68 sayd undoubtedly: The bank receiving adavance amounts needs to request the existence of those Bank Guarantees under its risponsability.
In our Civil Law legal system we do not need a judicial statement for something to be linking/applicable Law.
Catedral de Ronda by Merlin_1 at Flickr.com
_______________________
Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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Dear Maria,
great stuff, so why does Lawbird and Faro remain unconvinced?????
as does this Norman, not me.
norman says:
When moving to any country the golden rule is dont trust anyone but your self.Always ask lawyers to show you their colegio number and make sure its up to date.
Never enter into any contract of anykind unless you understand it.If you follow the last rule you will never be dependent on anyone else and believe me you will have no problems what so ever.All things simple are made complicated and hidden in a secret language that only lawyers and the like are privy to.Its the biggest industry in the world.Be aware very aware.Dont comply,write out and make your own private contracts.
05/04/2011 11:11:00
but if you have convinced Goodstich that is a help.
Regards
Norman
_______________________
N. Sands
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maria
I don't really get any 'enjoyment' from that post!.
I'm looking for some simple words that we can all understand like '' Person ''Mr X'' , didn't have a BG from the developers bank, so he took the bank to court, won the case and got his money back.''
The detail in your last post is encouraging, and it looks as if those cheated should? have a strong case, but where does it say that the victim has won his case and had his money returned? Once again, where is the evidence of a single case of money returned through not having a BG?.
How can any of us feel confident without any evidence of actual success?
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Legal tip 420. NEW! Bank risponsabilities ex 1.2 Law 57/68: new case law
31 December 2010 @ 12:03
Very recent, dated the 25th of November 2010:
Case Law by Cantabria Appeal Court, section 4, in Santander. A new great judicial understanding of Law 57/68:
Some relevant statements of said Court decission:
In THIRD paragraph: Law 57/68 aims for the protection of the buyer when he advances good amounts of money before the house is built, covering breaches of the developer and unsolvency ( more or less fortuitous) as it has been frequent in recent times. The rules contained in said Law are imperative and cannot be waived. The advanced payments of the buyer before the building, is balanced with the obligation of the existence of this Guarantee or Insurance Policy ( several Court decissions since 2005 to our days back this).
It is a matter of contract balance again. Balance of risks and guarantees.
In FIFTH paragraph: The imperative and inalienable rules contained in Law 57/68 areobligatory to developers, banks and Insurance entities. The breach of these obligations by professionals: developers and financial institutions can never be to the detriment of the buyer.
In SIXTH paragraph: The legal relationship between buyer and Financial Institution it is not out of the contract but out Law 57/68. Law requires the financial institution to guarantee all deposited amounts:
1. Through the opening of a special Bank account
2. Through the custody of said special account so that all the amounts paid as advanced payments are effectively deposited in said account.
3. Through the transfering into that account of all amounts which might be paid into a different account
4. Through the vigilance for all the amounts to be used for building purposes.
The Finantial Institution needs to know the business of the developer and request this to notify in an exact way all amounts paid by each one of the buyers so, the Bank Guarantee is for all amounts.
The only statement that it is not in this Court decission, because it is not what the Judge is deciding about with the same is what Law 57/68 sayd undoubtedly: The bank receiving adavance amounts needs to request the existence of those Bank Guarantees under its risponsability.
In our Civil Law legal system we do not need a judicial statement for something to be linking/applicable Law.
Catedral de Ronda by Merlin_1 at Flickr.com
_______________________
Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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.........so did this person win, have they had their money back?.
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Hello Goodstitch
This ruling from the Cantabria Appeal Court on 25 Nov 2010 has been widely discussed in various threads. I know some of the threads become very long and sometimes the vital information can be easily missed.
The case was won by a Lawyer called Rodrigo Blasco. The purchasers were Spanish Nationals - Porfirio Tejon Martinez and Maria Piedad Garcia Martinez.
The ruling in Santander by the Audiencia Provincial Seccion 4 de Cantabria on 25 November 2010 appears to be the most significant Case Law to date regarding the Banks liability according to LEY 57/68. Although the purchaser had a Bank Guarantee it did not cover all of the deposit paid. Among the many interesting comments made by Judge were: “The relationship between the Purchaser and the financial entity do not derive primarily from the contract or guarantee but from the Law”. The Judge also said: “The Law requires the financial entity to guarantee the repayment of all amounts paid in advance though the developer’s accounts for which the financial institution must be vigilant”. In this case Caja Cantabria was made liable to repay the purchaser all the amounts paid towards the off-plan deposit including interest and NOT JUST THE AMOUNT THAT CAJA CANTABRIA HAD CHOSEN TO GUARANTEE.
Here are a couple of links to articles in Spanish on this ruling:
http://www.elmundo.es/elmundo/2010/12/21/suvivienda/1292960314.html
http://www.lavanguardia.es/economia/20101221/54091904319/un-tribunal-rechaza-que-los-bancos-limiten-su-aval-al-comprador.html
I have contacted the Lawyer who won this case to ask if their clients have now received a full refund from the bank together with legal interest and costs.
If I receive a reply I will post the information here.
Kind regards
Keith
La devolución de las cantidades anticipadas a cuenta. La responsabilidad del avalista
Jueves, 23 de Diciembre de 2010 19:36
Así lo dispone una sentencia de la Audiencia Provincial de Cantabria, que condena a Caja Cantabria a responder solidariamente de la devolución de las cantidades anticipadas a cuenta, a propósito de la compra de una vivienda a una promotora.
El comprador de una vivienda, en virtud de la ley 57/1968 de 27 de julio, reguladora de las percepciones de las cantidades anticipadas en la construcción y venta de viviendas, tiene derecho a pedir al banco, caja de ahorros o compañía de seguros que actuó como avalista en su construcción que le devuelva las cantidades pagadas en calidad de anticipo si no le han entregado su casa, sin que la entidad financiera o aseguradora, que actuó como avalista, pueda aducir que el aval tenía un límite de tiempo o se contrató por una cantidad inferior.
Así lo dispone una sentencia de la Audiencia de Cantabria, que condena a Caja Cantabria a responder solidariamente de la devolución de las cantidades anticpadas como adelanto por un ciudadano a la promotora de unas viviendas en la localidad de Arce. En este caso, el comprador demandó a la constructora, Promociones Gumor 3 SL, y a Caja Cantabria para que le reembolsaran las cantidades anticipadas a cuenta por incumplir los plazos fijados en el contrato de compraventa, pero el Juzgado de Primera Instancia número 5 de Santander entendió que la entidad financiera no debía responder por ellas, porque el plazo del aval había expirado.
Sin embargo, la sección cuarta de la Audiencia provincial, corrige al juez de primera instancia y determina que, de acuerdo con la ley, el aval que obligatoriamente debe tener un constructor para poder solicitar anticipos a cuenta a los compradores no expira hasta que se entreguen las viviendas, diga lo que diga el contrato con la caja o el banco avalista. "El plazo de vigencia del aval", razona el tribunal, "no puede invocarse frente al comprador al infringir manifiestamente lo establecido por la ley".
El tribunal tampoco acepta que, llegado el caso, como ocurrió en este litigio, la entidad financiara avalista alegue que su aval era por una cantidad inferior a lo adelantado por el comprador. La Audiencia subraya que "la ley exige" a la entidad avalista que "garantice la devolución de todas las cantidades anticipadas a cuenta a través de una cuenta especial, de cuyo uso la entidad financiera debe estar vigilante" para que todos los anticipos del comprador se ingresen en ella y para que ese dinero no tenga otro uso que el de construir la vivienda, "sin desviación alguna". "Cuando el aval no garantiza, como es el caso, todas las cantidades entregadas a cuenta, dicho negocio es contrario a la ley", sentencia el tribunal, que entiende que la caja avalista debería conocer el negocio de la promotora y exigirle que le informe de las cantidades anticipadas por cada comprador.
Si a usted le ha pasado algo similar, no deje de reclamar las cantidades que ha entregado.
_______________________
LEY 57/1968
CLICK HERE FOR THE BANK GUARANTEES IN SPAIN WEBSITE
  
fpag@btinternet.com
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Hi Keith
thanks for explaining that case about the couple with a BG . I realise that's a step in the right direction, but it still seems a fair way away from someone without a BG not only winning their case, but getting their deposit or court judgement funds back in to their own account. If as Maria says, as Aifos creditors we are likely to get nothing, then the bank route must be worthy of consideration, and I have nothing but admiration for those like yourself and maria who are doing everything possible to make cases against the banks a worthwhile venture. Are we close enough yet though to trust in the justice system recognising right and wrong?.
How many cases like mine will have to be tried in court before we can feel confident of a win?. I certainly can't afford to gamble with the Spanish justice system. Somehow we have to have a ruling or a body of regulation that gives the victims of law 57/58 an upper hand in the courtroom because the crime committed by the bank for not providing a BG is already clear. The case shouldn't be about who is in the right, that's obvious by the lack of BG. The case should be about who pays, and the level and speed of compensation. I know that probably sounds like I'm living in cuckoo land, but without positive regulation for those clearly cheated or even being able to rely on common sense being applied in the courtrooms, then I feel the odds of justice are still to small to risk spending money on?.
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Dear All,
very encouraging but as Keith has said before "every case is different", we need some more varied cases before more money can be risked.
is the Rodrigo Blanco the chap who operates from Marbella?
I would like to see Faro's comment from the hip.
Regards
Norrman
_______________________
N. Sands
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With respect, you are all missing the vital point relating to the actual implementation of law (recompense). Goodstich is completely right to stress this point and is speaking for all too many who witness their legal successes count for nothing.
Only when fair and reasonable timescale constraints are introduced and enforced on the various processes within the Spanish Justice system (no matter how strong the legal argument you follow) will we ever feel protected.
This has to be recognised as a priority before many will feel comfortable commiting to what appears a sound legal argument.
Plus for those who have been compromised through these abusive delays and have no other means of fulfilling their successful judgements they should be adequately compensated.
This message was last edited by ads on 09/04/2011.
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