Bank Guarantee case won but still no refund

Thanks nick for your input.  We are in a postion much the same as (m11block).  We won our case against the developer last year and had our purchase contract cancelled.  They did not appeal or pay so the lawyers are enforcing the sentence although i am not sure of the process and how long this takes. I totally agree with ads comments regarding the length of time all these cases take to conclude.  It is extreme and very frustrating. (m11block) good luck on november.

Ang

Maybe they are holding back on paying out in the hope that we'll all be dead or mentally deranged. In which case, they won't be far wrong. 

I seem to remember some time ago that Keith identified in his Finca Parcs case (where the Bank appealed) that interest on monies recouped from the Bank/developer following preliminary enforcement of successful first instance win, that these monies were held by the courts in the interim period, and only released at the point of final ruling following Bank/developer appeals..... the result being that the courts benefited from the delay, as any interest accrued on monies held by the courts during this interim period was not recoverable.

I wonder if this is taken into account when the judge subsequently reviews interest/costs associated with the case, or if this interest is in effect "written off"?

Is this correct? In which case, if courts benefit from the interest accrued, where's the incentive to ensure timely rulings? Does this become a conflict of interests (pardon the pun ;) ?

Any interest that accrues on funds held in Court bank accounts pending release to claimants goes to the Spanish Treasury...........;-)

Hi 

seem a bit crazy as they are responsible for the delays and in most cases will not 

release money when there are appeals.

When cases are won how long should court take to release funds they are holding

and pay costs of First Instance and High Court appeal.

who decides the amount of costs and do they not include interest.

It is the courts that hold the money and it should be released to client...maybe they are afraid client would not return it if appeal is lost .....not much trust there !

What do you mean by costs and legal interest. What is interest on if court do not pay interest on money they are holding.

Thanks Keith.

Do you think it might be time to add an addendum to your BG petition text to bring attention to the need for the judiciary to demonstrate moral authority when making their rulings/decisions, given the ongoing problems that have arisen since the petition was closed (contra legem rulings, proliferation of Bank appeals that ignore inalienable rights and requirement to adhere to Ley 57/68 in its entirety etc).

Also to identify realities and potential conflict of interests that have arisen as a direct consequence of lack of time constraints (on courts/judiciary/banks/administrators following developer insolvency etc) all of which have directly impacted timely enforcement of Ley 57/68 on such an abusive scale as to contravene the rule of law. 

How exactly is recovery of costs and interest defined within existing law 57/68?

This message was last edited by ads on 07/05/2015.

Manus, who is your solicitor?

My solicitor has submitted a sum for legal interst on my deposit and courts costs. The court may grant the full sum or a percentage of it. This is interest that had accrued between paying my deposit and winning the case. Someone correct me if that is incorrect.

This is the million dollar question, and many solicitors are promising deposit and legal interest refunds but with very large win percentages (>25%) of the sum claimed. This will leave the claimant with less money than was deposited because the legal interest part (which for many is tens of thousands) is then taken away in completion fees.

You've got to be very careful how the solicitors word their documents. There are increasingly 'no win no fee' firms dotted around who offer no risk alternaitives.

Maria and Keith,

Please could you legally advise if these delays to enforcement of rulings against the Banks are now proving so abusively lengthy as  to be in contravention to the rule of law?

http://worldjusticeproject.org/what-rule-law (see sections titled Civil Justice and Regulatory Enforcement where it makes reference to court proceedings to be conducted in a timely manner, judgements to be enforced without unreasonable delay, and regulatory proceedings to be conducted in a timely way that respects the due process of law.)

Keith may I also ask if as a consequence of delays and failure by the authorities to provide time constraints on enforcement proceedings, with interest that accrues on funds held in Court bank accounts pending release to claimants going to the Spanish Treasury, could this be contested as an abuse by officials pursuing their own interests? How can this possibly be perceived as a method to induce good conduct and moral authority ?

This has now become critical to everyone fighting for justice against the Banks, has it not? 

What are the current legal justifications for not being granted interest and costs on successful rulings against the Banks? Could these justifications be clarified please as there appears to be an increase in instances of this nature of late.

Is this some form of regional inconsistency where the judiciary are not adhering to existing law in its entirety, and if so is it necessary to bring this to the attention  of the European Parliament and Commission as examples of failure to adhere to the principal of legal certainty as basis for the rule of law?

 European nations regard legal certainty as a fundamental quality of the legal system and a guiding requirement for the rule of law so surely instances where legal certainty is being brought into question in this way need to be effectively monitored and reported back to the European Commission?

Where there is no legal justification to deny claimants interest and costs are law firms placing these instances on record with authorities responsible for ensuring that the rule of law is being effectively safeguarded in Spain?

We should never lose sight of the fact that the Banks from the outset have a legal obligation to protect offplan deposited monies and guarantee their safe keeping in secure accounts until such time as the building is delivered according to mutually agreed contractual end dates and declared fully legal with all necessary licences in place,

What message does it convey if innocent offplan purchasers fighting for their INALIENABLE RIGHTS for return of their deposited monies following breach of contract, through no fault of their own, having been denied access to THEIR monies for all too many years, are then left to pay the costs to defend themselves from Banks' failings and cynical legal ploys that further compromise timely return of monies, when an existing law intended to protect them from such abuse is not fully adhered to?

This message was last edited by ads on 24/05/2015.

As more and more people fight for their rights relating to Bank Guarantees and now with new Supreme Court rulings being pro consumer giving purchasers hope for return of their deposited monies, it is even more essential that the time frames associated with gaining return of those monies and the prevelence of Bank appeals is tackled and highlighted to those responsible for safeguarding the rule of law in Spain.

I would therefore encourage all those who have been exposed to excessively lengthy legal proceedings and major administrative delays by the courts to highlight these facts (stating the region where the delays are occurring) to both your MP and MEP (www.writetothem.com) and stress that there is an urgent requirement for time constraints to be implemented and adhered to, if the rule of law is to be safeguarded in Spain.

As more purchasers are encouraged to fight for their rights according to ley 57/68 within the time constraint of 15 years, the situation re major court and judicial delays will only be accentuated and this needs to be effectively addressed by all concerned.

It would certainly be of great assistance if lawfirms acting in clients' best interests bring this matter to the urgent attention of those responsible for ensuring that the rule of law in Spain is upheld.

Also the problem re consistent and timely return of interest and costs for those who have been exposed to excessive time frames for return of their monies, and/or inconsistent judicial rulings/contra legem rulings during this lengthy period  awaiting SC recognition of rights according to ley 57/68, needs to be highlighted and strongly fought for by the legal teams representing their clients.

Innocent offplan purchasers should not be subjected to inconsistent rulings and/or abusive court or judicial delays given the failure to address the need for timely return of their monies, and then find that they are made ultimately responsible for the costs to fight for their rights.

Interesting that the courts are the ones creating a bottleneck.

I presently need to find out how solicitors charge for the offplan refund of deposit process, as back in 2006 I was 'introduced' to a solicitor who subsequently was charging based on the full unit of the apartment.....I got my deposit (less IVA and legal costs) in July 2013, after a court hearing the previous December. To get that far I changed from the original solicitor to a Welsh based notary, and from there finally went to Maria and her team at Costaluz Lawyers.

The original solicitors fees seem extremely high to those mentioned by others on EoS who've discussed their scenarios.

I have to pay my debts, I acknowledge that, however I have fought too hard to simply release funds if I am being overcharged. I hope someone can give me an idea of their costs....it has crossed my mind to do some sort of table showing which solicitors bring results....it has been a very long, tiring process to date getting perceived justice. 

With regard to bottlenecks, it's surely in clients AND lawfirms' best interest to get the issue of time contraints upon court administrative processes and judicial rulings fully resolved, is it not?.

But equally important is the aspect of judicial consistency with regard to reclaiming interest and costs from the Bank, so that clients and law firms benefit EQUALLY from TIMELY return of deposited monies (including interest and costs).

How can it be right that law firms can reclaim their costs from return of deposited monies as per successful Bank claims, but that clients in some instances are being deprived of costs from judicial rulings that ruled against the Banks? (This is not a criticism of the lawyers but of the judiciary). Can anyone please explain under what legal circumstance a judicial ruling should not include return of costs when the Bank has been found guilty and is this in contravention of Ley 57/68?

Consistency of rulings has remained a problem for far too long in the fight for recognition of  inalienable rights against the Banks, so to finally gain clarification of Ley 57/68 from the SC without equal regard to consistency of awards for interest and costs is incredibly frustrating, and sadly if we are not careful, can become an unecessarily divisive issue between client and lawyer, which is in no-ones interests in the longer term.

.Is it not in everyone's interests, client and law firms alike, that this be brought to the attention of those responsible for ensuring legal certainty and timely justice prevails? Are law firms reporting these facts/evidence to the correct authorities in Spain to assist transparency so that monitoring of the legal system can be assured with regard to legal certainty and the rule of law? How else can these issues that further compromise innocent clients ever be resolved?

The stress associated with these lengthy legal battles cannot be under-estimated for clients who pioneered for accountability of developers/Banks, but in fairness nor should we lose sight of the pioneering legal work by those who were wrongly berated in the early years, when resolving these Bank Guarantee issues.

We should all be working together on this to the longer term benefit of all and in that process Banks should be made fully accountable. The awarding of interest and costs are a necessary disincentive to those Banks who use delays and appeals to ironically try and disincentivise innocent offplan purchasers from pursuing their rightful claims to have their INALIENABLE rights recognised..

I would be grateful to gain your views and clarification on this Keith.

This message was last edited by ads on 08/06/2015.

Hi All,

Just to let you know that we have received our deposit and some interest back in the last week. We are over the moon with the outcome and eternally grateful to Maria and her team at Costaluz Lawyers. It has taken 8 years to get to this conclusion but all I can say is that those of you who are still in the same situation as we have, to hang it there - it will  happen. We have asked for a breakdown of the settlement and will post it as soon as it arrives.

Delighted

Manus1

Well done Manus and Costaluz. So good to hear of your success.

I notice in a previous posting that you weren't subjected to an appeal....is this correct? 

Could I ask what region was the court case held, and did the ruling include interest and costs?