ALL AIFOS´BANK GUARANTEES NOW AVAILABLE

Due the unsolvent situation of the developer, all Bank Guarantees have been made available. We have them. Many other lawyers might have them too.

Just in case, someone is still trying to find a guarantoor for an AIFOS development, we can provide details

Well done Maria.

Resiliance has hopefully finally paid off. Good luck with your outstanding claims. ;)

Thanks Ads. Yes, long years of hard work indeed!

M

Hi Maria,

Just seen your note on having all the details of the Aifos Guarantors and could you be so kind as to comment on why the following occurred......

My wife and I attended Malaga Court earlier this year, to reclaim our deposits from Banco Popular (who covered our Aifos property with a General Bank Guarantee)  Upon our arrival we were told we were not required as Banco Popular was pleading guilty, however during the case it transpired that Banco Popular had not received all of our deposits and a portion was paid to Caja Rural and therefore we did not win our case 100% and were not awarded any costs. Plus we were only warded the interest from 15/02/17 and not as expected from 2004/5 which was when we handed over our money to Aifos.

If you say you are in posession of all the Bank Guarantors who covered  Aifos properteys why was Caja Rural not included in our Court case ?

We have now been informed that Banco Popular has appealed against paying us any money and that the Appeal procedure will take up to two years, we are  slightly displeased when this may have been avoided if Caja Rural had been included in our Court case.  The outcome is that we are no further forward regarding any refund of money but are incurring additional expence in another Court case. 

Cheers. 

Belucky:

I would need to look to specific details of your case, no case is the same. If you are a client of us, it is better, for you own privacy, to request that info through a private channel

Kind regards

Maria

Belucky, I would take the money and run. In the meantime you have a bank gaurantee that will cover you.

Seems like a careless mistake though...

Btw, can these bank guarantees simply be presented to a court and the money paid over?

In principle is it correct to assume that General Bank Guarantors are responsible for ALL monies deposited ( where no individual guarantee(s) have been provided) so long as it can be proven that monies were deposited into DEVELOPER bank accounts?
The key point being the general guarantor Bank is ultimately responsible for all monies advanced to developer accounts, irrespective of which individual developer bank took the monies, whenever they failed to provide individual bank guarantees?

is this legal principle correct Maria? In which case has the judge got this ruling wrong?

In terms of being called before the court, does the client in civil cases have the right to request a legal expert to speak on their behalf whenever they are subjected to any form of complex legal cross questioning ( for which they understandably have no prior legal knowledge or understanding)? How are clients protected in these circumstances when they have in effect paid legal representatives to act on their behalf (with all due diligence) with regard to ALL matters associated with purchase contracts? Is this form of cross questioning in court not considered an .unfair practice by the Banks.... disregarding their legal counsel to act on their behalf in all matters? Why should a judge or Bank be allowed to call  a client to court in civil cases when the client has engaged a lawyer to act on their behalf? Surely a client cannot be expected to comprehend purchase contract and/or BG law? Is this an abusive practice by the Banks?

PerhapsI have misunderstood? 

Ads.  

I think the thing to remember is that you are hiring the services of a lawyer to have the process clearly set out before your court case is laid out.

The documents you have proving where your money has been paid to should be identified, the pre trial hearing should have any discussions about what your claiming, who from and what evidence you have.

in my way of thinking, to get to the final trial and be misled about what your being questioned about, what money your claiming and from whom, is likely to be malpractice from the lawyer, don't you agree?  There should be a satisfactory explanation.   Also about the ongoing fees, if fee structures change you should be told in advance, not given a bigger bill at the end, that's also misleading.  

To try and then solve the issues yourself and have to look into legal matters, is beginning to sound like incompetence from your lawyer (to my mind). 

I am in doubt if my Lawyer is on our side. Our case was won in May 2016. We have not received anything of our deposit back. We have paid all our fees as we have gone along. I get no reply from questions i ask and i feel trapped. What is the best way to handle the situation?

Ads: Answers below in bold green ( same text as your message below):

In principle is it correct to assume that General Bank Guarantors are responsible for ALL monies deposited ( where no individual guarantee(s) have been provided) so long as it can be proven that monies were deposited into DEVELOPER bank accounts?

General Guarantoors are risponsable of all money paid into a developer´s account by a buyer, regardless the account ( special or not) or the Bank. This is because roff plan regulations, allow Guarantoors, for the sake of meeting their obligations to have information of the whole contract history.

If no Guarantoor is found for a developer/ development, depositer bank is liable. 

In any case, every case is different. Law is NEVER mathematics.

The key point being the general guarantor Bank is ultimately responsible for all monies advanced to developer accounts, irrespective of which individual developer bank took the monies, whenever they failed to provide individual bank guarantees? Correct. General Guarantoors are lieble even if the developer did not deposit  money in a Bank account but the payment is recognised in a contract

is this legal principle correct Maria? In which case has the judge got this ruling wrong?

Just in those cases where payment were made out of Banks and contract control ( black money). Rest of cases General Guarantoors are liable of paymemnts made under the safe contract system.

In terms of being called before the court, does the client in civil cases have the right to request a legal expert to speak on their behalf whenever they are subjected to any form of complex legal cross questioning ( for which they understandably have no prior legal knowledge or understanding)? Lawyers are director of their work. They are risponsable of preparing evidences to be enough and effective according to his practise and professional understanding.   How are clients protected in these circumstances when they have in effect paid legal representatives to act on their behalf (with all due diligence) with regard to ALL matters associated with purchase contracts? Is this form of cross questioning in court not considered an .unfair practice by the Banks.... disregarding their legal counsel to act on their behalf in all matters? Why should a judge or Bank be allowed to call  a client to court in civil cases when the client has engaged a lawyer to act on their behalf? I agree with you. These callings have been, in most cases we have directed against banks, unnecesary as there were enough evidences already in the file. Banks were expecting clients not attending in order to take advantage of the evidence in their favour. Judges cannot deny its practise, they can disallow some specific questions . Surely a client cannot be expected to comprehend purchase contract and/or BG law? Is this an abusive practice by the Banks? Legal representative of person being questioned can oppose certain questions of ways of questioning for the protection of the client.

PerhapsI have misunderstood? 

Thank you Maria. It is much appreciated.

So where proof of all monies deposited into developer accounts is provided to the court ( regardless of which Bank) and a general BG exists as opposed to individual guarantees, the judge should rule in favour of a client?

In your firsthand experience is this being consistently recognised by the judiciary and if not are clients being exposed to unnecessary appeals?

To your knowledge is any monitoring of appeals being done to determine if irregular patterns of appeals are occurring so as to protect clients from either Bank abuse of the appeal system ( where Bank appeals are  ultimately and more frequently being overidden) or judicial inconsistency is occurring in any particular court or region ( where first instance rulings are now being more frequently overidden at appeal)? Or for that matter where irregular patterns of appeal court rulings are out of line with growing and correct judicial interpretation in this particular regard?

Alongside these understandable concerns relating to Bank behaviour and accountability and judicial consistency, presumably it is the duty of lawyers to request proof ( either from the client, the Bank, or previous conveyancing lawyer) of all monies deposited ( to ascertain that these monies were deposited correctly into developer accounts) and have proof of all guarantees in existence for that development prior to submitting a lawsuit?

Ads

Thank you Maria. It is much appreciated.

In your firsthand experience is this being consistently recognised by the judiciary and if not are clients being exposed to unnecessary appeals?

To your knowledge is any monitoring of appeals being done to determine if irregular patterns of appeals are occurring so as to protect clients from either Bank abuse of the appeal system ( where Bank appeals are  ultimately and more frequently being overidden) or judicial inconsistency is occurring in any particular court or region ( where first instance rulings are now being more frequently overidden at appeal)? Or for that matter where irregular patterns of appeal court rulings are out of line with growing and correct judicial interpretation in this particular regard?

This will be part of the statistical information coming from the court conclusions concerning these cases perhaps? Because there are more and more instances of lawyers chasing the business of clients involved in this type of financial issue, I have been making the assumption that lawyers are following outcomes closely and minimising appeals and negative outcomes (although I have not been good at finding the information myself yet!).  Is this not the case then?

Alongside these understandable concerns relating to Bank behaviour and accountability and judicial consistency, presumably it is the duty of lawyers to request proof ( either from the client, the Bank, or previous conveyancing lawyer) of all monies deposited ( to ascertain that these monies were deposited correctly into developer accounts) and have proof of all guarantees in existence for that development prior to submitting a lawsuit?

This is in the area of the pre-trial work comments I mentioned in a prior post.  I was trying to state then that the amount of work carried out in preparing a case, using legal knowledge and assembling all the documents of payment to place before a judge, along with the original contract, is part of the lawyers expertise and knowledge.  I was also trying to say the challenge then made at the trial stage, using the plaintif as a means of questioning concerning legal matters which perhaps should be pre-determined, would be the shortcoming of a lawyer (shouldnt it?).  I assume this is what pre trial hearings are for.  Im not making judgements with this but I would be concerned my case fell into a similar trap.

I have a court case coming up soon,hoping to get a return of my deposit on  a off plan property that i bought in 2006.My question is this.My lawyer has told me that my name is on the creditors list,but do i need proof of payments to the developer who went bust.Will i be called to the stand to give evidence and what kind of questions should i expect to be asked,or is being on the creditors list enough?

I'm really sorry to keep going on about this but the last post from Ciaron is just reinforcing the point that the lawyer simply isn't working closely enough with the client.  

Otherwise why would these questions not be answered by the lawyer.   I don't get it.  

Briando

There appear to be many vulnerabilities relating to this whole sorry saga and I agree the more that lawyers can do to minimise these vulnerabilities through their client care systems and enhanced communication the better.

But this is not the only factor that needs to be addressed in terms of client's vulnerabilities.

Trust in the legal system is also at stake here, i.e. trust in the consistency of judicial rulings and " reasonable" timeframes to effect justice and enforcement of rulings.

And sometimes the latter problem relating to delays or inconsistency of rulings can give the impression that this is a failure of the legal team, whereas in reality it is a failure of inadequate resourcing of the justice system that has sadly resulted in abusive and compromising delays.

My current concerns relate to the latter and the perceived growing instances of clients either subjected to  Bank appeals that are subsequently overturned, or those clients requiring appeals ( subsequently upheld) following inconsistent  judicial rulings.

Hence my query re the need for effective monitoring to minimise inconsistent judicial rulings and ensure that adequate resources are being made available to those courts/ regions where delays are increasingly compromising timely justice and enforcement.

I am not referring to " reasonable delays" here, but to delays which are are far in excess of the norm....i.e. years between lawsuit submission and acceptance into the court system,....years to achieve first instance rulings..  years to achieve appeal rulings....years to achieve Supreme Court rulings, ....years to achieve enforcements and return of monies according to successful rulings....years to achieve return of interest and costs.

The lack of resources in some regions now appears to be contravening the rule of law.

Hence the call for the legal fraternity and Bar Associations to recognise these growing problems, to come together and campaign " as one " with evidence to substantiate the compromising effects from under- resourcing  of the court administration and justice systems in Spain.

To be honest, many have been highlighting this problem for years, but only now is it  significantly impacting trust in the legal fraternity and I  for one sincerely hope that this is adequately addressed to the benefit of all.

Ads. 

These are very real and very accurate observations of course.   

It needs saying though, that the people caught up in this system can only observe the friction between themselves and their lawyers, any complaint made can only be directed at the firm representing them.  We are the very statistics in your posting that should be used.  

If this sounds in any way like a complaint by me about my lawyer, it is not.  I have a good relationship with my lawyers practice ( Costaluz) and keep regular contact   They are as caught up in this as we area, I get that  

Its no surprise then that (particularly British) people don't want to be just a statistic.  Any areas of poor service will be Put forward.   If anything is being done to affect any change then tell us, we will understand, I promise!!!    Tell us nothing and expect a backlash though.  

Having said this, reading some posts does show how poor a lawyer/client communication relationship can get, try and read the Ciaron post with an open mind. 

This message was last edited by briando55 on 07/06/2017.

The main problem with the legal profession (worldwide) and that includes the courts, judges, barristers and lawyers is that they are arrogant. They will always do as they want and fee payers are just regarded as ignorant meal tickets.

Good debate indeed! Like it.

I do not want to minimise lawyers´duties towards their clients in the sphere of communication and information in regards to an ongoing case: they do exist till the the very end of the case, but, it is also true that long delays in Courts naturally increase uncertainty of client and his wish to know what is going on, which, lamentably very often, is nothing.

Under these circumstances, how to solve a problem of this nature--- Courts workloads and delays-- through our communication efforts, as many clients demand? How to put minds at ease by communicating when there is nothing to communicate? 

Regarding Appeals, Judges and Appeal Courts are  very generally imposing legal fees on banks together with legal interests from payment of amounts. The judiciary understands that from Decembre 2015, Supreme Court has established an opinion on Banks liabilities.

When banks are alleging delayed exercise of rights, bad faith, the antisocial exercise of rights if cases are brought to Courta some years after breaching of contracts, the judiciary is also protecting clients by saying that insolvency of developers and lack of a clear doctrine on Bank liabilities justify these delays.

In regards to Ciaron question: If there is a General Guarantor, just your registration at the creditor´s meeting is enough for proving your payments to the developer. Till this was clear in Courts, it was sensible to also bring to judges evidence of payments. 

One aspect currently causing growing concern is inconsistency of rulings relating to interest awards Maria, so could you please advise if this has come before the Supreme Court, and if so in the interests of transparency, could you please advise when was this submitted to the SC for further clarification and final ruling?

In the meantime are clients being subjected to once again an increase in appeals to obtain their rights in this regard (sadly yet again a repeated exercise for those who have been pioneering for clear doctrine from the SC on previous aspects relating to BG law and inalienable rights).

In the interim therefore could you please advise if the judiciary are also protecting clients by their rulings at appeal level to reflect the purposeful intent of Banks to "use " this current lack of clarification and subject clients to yet more appeals with all the associated costs, let alone the impact this has on the already overloaded court system?

I have stressed on many occasions how grateful  many clients are for your ongoing educative postings which not only help your own client base but also many others caught up in this scenario. For that I thank you most sincerely Maria.

Thank you Ads for your kindness and also for your presence here, which prompts us to learn and improve continuedly.

Supreme Court has not yet established express doctrine on interests in these cases, I am aware there are Cassation appeals on this matter already presented to them.

Many Appeal Courts are using a case won by our teams ( Costaluz-DeCastro) at the Supreme Court, on 2016, 17th of March as an example of what is Supreme Court´s opinion on this. Appeal Courts are also using other legal reasoning for imposing interests the from date of payments, such as:

1)  Literacy of Law 57/68

2) Wording of guarantees

3) The legal principle of " restitutio in integrum" as those interests as just a chapter of refund; they do not have compensation or indemnification nature. Basically meaning that in Law, when an amount needs to be refunded, their interests from day one are attached to it.

Appeal Courts are imposing interests from the date of payment in almost all provinces, despite there is still not Case Law doctrine on it.