I have now heard back from Guadalupe @ GM Legal and she has asked me to post the following note on the forum as she is having trouble with her EOS account.
Our deposit contracts are for the Herrada Del Tollo development at Santa Ana \ Jumilla but I'm sure the same hold true for the San Jose Inversiones developments.
The news is very positive and GM Legal are now commencing a Class action for all interested parties. I have also had a second opinion from Maria De Castro who has advised of a similar view, and she has posted the same on several community development forums.
Obviously taking furtther legal action is very much up to you guys as individuals to consider , but for us this is the best positive news we have had in two years, & for people without specific Bank guarantees I personally think its got to be worth a try.
Guadalupes email below : >>>>>>>>>
About the low cast class action grounds:
A generic bank guarantee is an agreement signed between the Bank and the Developer, in which the Bank agrees to deliver bank guarantees for the deposits paid to the builder, and the developer accepts to refund the Bank the amounts covered by the guarantees if he breaches the contracts. The generic guarantee can specify which development (or phases of a development)are covered, or even settle a limit for the amount of deposits covered. So basically is a document where the Bank commits to give a bank guarantee for every deposit paid to the developer by buyers. This means that no individual guarantees are given unless a generic guarantees has been previously signed between the builder and the Bank.
It seems that the generic guarantees signed between DHT and SGR doesn’t include any reference about which developments are covered, the guarantee is extended to any deposit pay for any resort. You have to bear in mind that SGR provided guarantees for several buyers of HDT in Santa Ana, whose contracts were exactly like yours and paid to the same BBVA account, under the provisions of the generic guarantee. So there is one thing we can assure: the generic guarantee covers the resort Santa Ana del Monte, because individual guarantees wouldn’t have been given to buyers otherwise.
The generic guarantee made by SGR settles a maximum amount limit, 65 millions of euros, and when they get opposite to my claim they will probably allege that the maximum amount has already been reached, so they are no longer liable. My opinion is that the “amount limit” is against the provision of the 57/68 Act. SGR is a financial entity, but they just provide financing and not banking services (accounts, etc). So the fact that the deposits were not credited in a SGR’s account is not relevant, because SGR does not provide banking services. Therefore, SGR and DHT did not follow any criteria to decide which deposits paid for Santa Ana were guaranteed, and which weren’t. It was just an arbitrary decision. Consequently, SGR’s liability could be claimed, as long as the art. 1st of the 57/68 Act states that bank guarantees must be delivered to every buyer of an off plan development and the bank must control if guarantees are given to buyers, and the art. 7th states that the rights established by the law can’t be waived. If their excuse is that the deposits were not paid to them because they don’t provide banking services, they should have established additional control systems to make sure that every buyer got an individual guarantee.
Before bring a civil action against SGR, I will file a preliminary enquiry, to request them a copy of the generic guarantee (general and particular conditions) and to make sure that any if my clients is the holder of an individual bank guarantee which wasn’t given to him (please note that Banks are forced by the law the keep copies of every individual bank guarantee given). As explained on my post, what we have now is a certificate signed by SGR, and also an email from HDT which confirms that the generic guarantee is not for an specific development or phase. Even we will probably find that on the particular conditions of the generic guarantee is established that SGR will provide guarantees for the deposits paid on the BBVA account hold by HDT mentioned on the purchase contracts.
As many buyers seems to be interested, we can bring a class action. To make everybody possible to join this action, the provisions of funds requested by GM will be just € 700 (instead of the standard €1,500).
Please let me know whether you are interested on joining the action.
End.
For those interested her contact email is : guadalupe@gmlegalexperts.com and web address is www.gmlegalexperts.com .