Getting the money after judge finding in our favour.

Hi can anybody out there tell me how many people have now signed the petition to date

thank you Mega

 It is simple: because individual certificates of bank Guarantees were not delivered to off plan buyers, these, when claiming had to start with an action against the developer. 

If developer is bankrupted, liquidated or repossessed, the effective enforcement of the Court decission against the developer gets an almost impossible exercise, due to unsolvency, and most importantly: a very long an unfair work.

If the individual certificates of Bank Guarantees had been provided the refund would have been an easy exercise.

There is existing  case law condemning the Bank who issued the bank Guarantee and did not provided the individual certificates to buyers.

But... what if general  Bank Guarantees do not exist? In our opinion, provision 1segundo of Law 57/68 and also professional indemnity of lawyers should cover this.

If you look to the end of the petition Mega, Keith updates the detail re signatures to date. Hope that helps.

Well explained Maria. I was just about to query if there might be ongoing legal technicalities associated with these cases of secondary appeals.

May I ask why the judiciary are allowing secondary developer appeals under these "impossible and complex" circumstances? Do they not have any legal (and moral) authority to request further relevant details associated with the case, from the developer/Bank re the guarantees, and thereby save time and effort at that point to make a valid and rightful decision on the case?

It seems crazy to me that these ongoing appeals are allowed when there is a far more efficient and legally sound way to resolve these matters by the judiciary themselves. Perhaps I am missing something here?

Yes, you might be missing something.

I know of one case where the judiciary were actually involved in the corruption....and I'm sure it can't be the only case in Spain!  Sorry, I can't divulge anything about the case but I can tell you it has been taken to European courts.

All the more reason to identify all the facts in Keith's ongoing petition then!

I would have thought that any pattern of corruption or abuse is far easier identified by a detailed petition of this nature.

Surely however given existing BG laws it would make sense now for there to be a Spanish Judicial directive for all the judiciary to follow a more efficient, fair and effective route to Justice, rather than clog up the system with unnecessarily complex legal cases, when as Maria has identified it is far more simple than that!

Any abuse and systemic failure by the judiciary to enforce rightful judgements by allowing secondary appeals to continue without due reason should be brought to the attention of the European Commission.

Keith is absolutely correct to call via his petition for a fast and effective route to Justice for all those bound up in this ongoing BG abuse.

Please everyone keep supporting him.

www.bankguaranteesinspain.com

This message was last edited by ads on 03/01/2012.

This message was last edited by ads on 03/01/2012.

Hi all,

I have been looking through this comprehensive thread that this subject has provoked and as someone who is in the situation where I have a legal Bank Guarantee originally executed on, or around 3rd March 2008 by my then lawyer.  We changed lawyers in May 2008 and eventually lost the initial decision against developer/insurance company.

I had kept in contact with my current lawyers throughout the period monitoring the progress, but not putting too much pressure on them, to be informed in November 2010 that the developer had tried to offer me a massive discount to complete, to which we declined. 

The next correspondance from our lawyer was Feb 2011 notifying us that we had won the case and waiting for our monies - we were extatic and relieved at that point. However the following months passed with various correspondance all looking good and being informed that we were just waiting for monies to be released to eventually be told that we had not won our case, just the right to appeal?

I can not tell you how dissapointed this has made my wife and I as we still can not understand how this massive mistake could have happened when it should be a fundemental process? 

After reading some of the horror stories on this forum I am really uncomfortable with the legal system and wondered if anyone else had experianced similar situatitions??

Mark B

HI Mark

               SORRY TO INFOFM YOU,BUT I WOULD SAY 90% OF US ARE IN THIS POSITION.  In my case ihad judgement in 2009 for 95000 euros plus interest and an enbargo on another finnised appartment owned by the developer and still have not got a single cent of my depoit back so much for the legal system in spain.

Regards Mega

Dear Mega:

Enforcing these Court decissions against the developer is, in our opinion both useless and unfair:

Useless: Becuase many developers and bankrupted or with bery low solvency rates. Their developed properties all have a preexisting mortgage in favour of a Bank ( which was funding the development) and if enetered into Creditor´s meeting your rights are very poorly recognised.

Unfair: law 57/68 stablished liabilities for both the developer and ( I would say MAINLY) for the bnank which received people´s deposits.

It is a joy that this Law which keeps a pro-consumer, pro-person approach of bank´s rols is active and enforceable in Spain. It gives to us a right and balanced  picture ( even much breached) of these businesses where Banks had much to gain and few to risk. They were constituted as guardians of deposits.

Hi Maria

       I  wrote to the european government in brussels via Mrs Wallis EMP  some time ago and got a reply from someone in her office saying that they were awear of the depoit problem and had brought it up in the past but now it had escalated to such a high ammounts  they  did not want to bring it up at that time as it could affect the worserning finacial situation in spain,what about our hopeless position we have been in for years.

Mega

If you have a won, un-appealable decission, you can start a new action in  order to oibtain the refund either from the Guarantoor Bank or Insurance company or from the Bank which received your deposits.

 Maria

            The problem is that we are talking about Aifos now in addminisration,my award was pre addmin,what chance do i have?

Mega

 I can see from what Maria says and how it is explained that of course the banks have little or nothing to loose. The purchaser has all to loose.  In fact, anybody but the bank. 

So what happens is that the contractor takes a loan out with the bank.  The bank lends the contractor the money.  If it all goes wrong, then our deposit is supposed to be sat in a corner, intact.  It is the bank that has lent the contractor the money, not us.

We are not meant to be funding the bank and or contractor.  The banks - a large institution - are the ones who are supposed to be taking any risks in lending the money to the contractor.  

so the bank takes the risk - ether they get paid back handsomely with interest by the contractor in which case they have obviously 'gambled' well and made money on the deal, or the contractors get into difficulty and the loan is not repaid.  Tough - it's what banks do - lend money.  If they get it wrong, that's not my fault. 

And if they do get it wrong and the contractor becomes bankrupt, then the assests are siezed and the bank gains from those.  Win, win for the bank.

We, the purchaser, are not taking the risk and that is why we have a contract.  If we did not have a legal contract and just casually  handed over thousands, then we would be taking a large risk and would have to  live with the consequences.  Unfortunately, the end result is the same - we loose our money.

Except as Maria tells us - we are (or should be) protected by the fact that the bank is supposed to be holding the deposit money. 

Maria,

          Could you send me your email address and i will send you the relivent info as much as i have.

Regards mega

In many cases, albeit wrongly, it is Win/Win for the banks because many banks 'conveniently' failed to comply with their legal obligations under LEY 57/1968.

In many cases judgements cannot be executed against the developer as the developers are often insolvent, have asset stripped or are in administration.

The rights granted to the purchaser under LEY 57/1968 are of an 'inalienable' character.

The purchaser has an inalienable legal right to receive a Bank Guarantee or Certificate of Insurance for all off-plan deposits.

If the property is not started or completed FOR ANY REASON by the agreed deadline then the purchaser has the right to receive a full refund together with the addition of statutory interest.

If you have proof of your deposit payments being paid to the developers bank account, especially if it was the bank that funded the development, then you should consider filing a Lawsuit against that Bank.

Kind regards

Keith

After the helpful posts on here, for which my huge thanks, I don't  need any pursuading that I need to pursue the bank for the return of our deposits. 

My questions is - how?  

We have now paid for 3 court cases - the initial one which we won, plus two appeals, also won. 

Now the developers are in administration, so we can probably forget about getting any money from them.  So we would have to fund a new case against the bank ourselves. 

The problem is that our capital is now silly-low ie not much!  And the solicitor says that he too has invested in paying for our cases and quite a few thousands riding on it. 

So even if we did manage to pay for another case, I'm not sure how he'd feel about that, in addition to which I'm not at all sure I could convince him it's the bank  he need to pursue now.  

Mega,

I think you missed my point here?

I am stating that I have a legal Bank Guarantee confirmed legal by two lawyers, this was executed back in 2008, since then we lost initail decision, 

I was told by my lawyer they would be appealing the initial decision and was subsequently in constant communication with my lawyer through 2009 & 2010 when in November 2010 via our lawyer the developer offered a massive reduction in price for us to complete on the property (30 - 40%).

We told them no way, the next we heard was in Feb 2011 CONGRATULATIONS that we had won our case and monies would follow soon!  Then after various correspondance all sounding very positive we get a bolt from the Blue to say that we had NOT won our case, but just the righ to appeal?

It is this I am asking if anyone has a similar story where something as massive an alleged mistake has happened????

Mark

 Mark,

Not quite the same but our solicitor rang after the case to tell us that he had some good news - we had won!  Because I am deeply suspicious (now), I asked him in various ways if we had actually - really - won.  Would we be getting our money back? Yes!  So we've won? Yes! And that's it? Yes! 

I felt a small glint of hope.  And then he told us that they were appealing - a mere formality - and could he please have some more money for the appeal case?  

Oh!

Update!

It's good to hear today that there are more winners of cases, at least two today I believe?

I am very interested to see if they have actually won their cases or just the right to appeal??  If they are lucky enough to have won their cases do they actually have their monies yet???

Watching with excitement.....

Mark