Bank´s liability on custody of off plan funds

** EDITED - Against forum rules **

Angeleyes

Please stop your inciteful personalising posts that compromise attempts to gain greater clarity, justice and understanding of highly complex aspects to the whole scenario of Bank Guarantee law. Your posting is not helpful and is an unnecessary mischievous attempt to undermine.

** EDITED - Against forum rules **

Angeleyes, how about not sticking your nose in where it's not wanted? You add absolutely zero value to the discussion. If you have a chip on your shoulder, go and see a psychotherapist. And stop souring our milk with your bitterness.

Maria,

where you previosly posted

"We are bringing appeals to European and Constitutional levels. We do believe this narowing of the scope of Bank´s liabilities is very much against the nature, principles and interpretation of Law 57/68.

and 

"I have actually offered our continued updated Case Law research to all lawyers involved in this fight. As lineral professionals, this type of commun endeavours are not too frequent, at least in  Spain. Most likely to be carried out by Consumers Associations,  I will be sending some notes to the most prominent ones in the New Year.

Do you have any updates associated with all your endeavours in this regard? Could you please keep posting of progress ( or otherwise!) 

It would no doubt act as reassuarance if good law firms could pursue this type of " common endeavour" to the benefit of all those still striving for justice. 
Many thanks.

I offered this to many of the involved law firms. No answer. Just one of them recently ask for some guidance on a particular matter and we are in contact

So sad but equally disconcerting Maria.

Have you had any response from the Bar Associations or any other relevant authorities?

Do the other law firms not recognise the serious implications from these SC rulings and how they undermine supportive doctrine that has taken YEARS to achieve?

Do they not recognise a justice system at risk of being undermined by powerful financial institutions if these recent SC rulings remain unchallenged?

Do they recognise the potential for distrust in so much as they could be perceived as failing in their due diligence to ensure by all means at their disposal ( far better to speak as one voice in this regard), that this surveillance and safeguarding mechanism within Ley 57/68 intended to protect FROM THE OUTSET,  is protected from being undermined in this way?

This hardly inspires confidence in those law firms who appear dismissive of such well intended proactive endeavours, or perhaps I have misunderstood?.

Are you still hoping to bring this to the attention of the EU or is this in reality dependant on wider support from within the Spanish legal fraternity?

Do these SC rulings in any way threaten the rule of law in so much as they could be perceived as being unreasonable to the extent that judicial independence free of interference is being compromised here?
 

Ads:

Yes, we are soon filing Appeals in Europe on this matter.

 Is the Spanish Bar Association made up of mainly Spanish law firm principles?

We ae under two different Deonthological Codes:

European: https://www.eesc.europa.eu/sites/default/files/resources/docs/072-private-act.pdf

Spanish: https://issuu.com/mariadecastro/docs/spain_lawyers_ethic_code

Hi Maria

Did you get anywhere with the appeals in Europe?  We've just lost our case because "the payments were not sufficiently accredited due to the existence of an intermediary".  Our solicitor is looking to see if there are any possibilities of an appeal.

Thanks

Hi Deeleys,

I think in short, the answer to your question is no. I am unable to offer you a full explanation, perhaps Maria might. Out of their jurisdiction or some such reason. I was pinning my hopes on that!

Hi Deeleys,

Who are the Bank implying is the " intermediary" in your case?

Both the Constitutional Court in Spain and the European Court of Human Rights did not admitt the Appeals. Very frustrating indeed!

Protectionist of the Banks? ☹️

What form of intermediaries are these referring to Maria? It's difficult to assess the meaning...

Those intermediaries that Supreme Court Case Law are considering as obstacles for the Bank to get to know that the payments were off plan payments, even when the Bank account was a developer´s bank account! are estate agents or lawyers.

Very twisted interpretation. Unbelievable.

Hi Ads

As Maria said, I think it was because our original lawyer paid half of the deposit to one bank and then we paid the other half in promissiary notes to another bank.  We were going to have a subrogated mortgage from the developers bank loan, so they definately knew we where buying a property.  We weren't given a bankers guarantee either.  Its all been a bit of a farce really.  There is also a criminal case against the developer, which has been ongoing for 12 years.  The court in Granada didnt even know one of the developer's had passed away, so had to adjourn the case two years ago.  I dont hold any hope for that case either.

I don't hold any hope for the money paid by the original lawyer, but surely the money paid by me in promissiory notes should be paid back.  I will see what my lawyer says about an appeal.  

Update to our court case September 2024

After an appeal we have managed to get back 9.5K Euros out of the 19K we originally paid.  There was also interest of 6K that we paid the lawyers fees with. We only got the money due to the promissiory notes proving that the bank knew the 2nd deposit was for a property.  We lost the original deposit because there was no proof that the money sent from our original lawyer was for a property.  I did ask the original lawyer, before our appeal, for the correspondance regarding this deposit transaction, but they said all the emails would have gone by now (14 years later) and they'd have to speak to their IT people.  They didn't. They would have had the info somewhere because they were pursuing a criminal case against the developer for us for 12 years. 

One last rant.  The first thing I asked the original lawyer was "does the property have a bankers guarantee?" and they said yes, yes, no problem.  They even gave me a pre-copy of the contract, which named the guarantor etc.  They then let us sign and they countersigned the real contract with the guarantor part being blank!  They were negligent and incompetent.

Congratulations to Deeley on this partial victory! At least in these cases, the slow pace of justice works in your favor, as the interest continues to accrue.

Do you still have the pre-copy of the contract Deeleys?

It would be interesting to know from Maria where would this pre-copy of the contract stand in the eyes of the law? Would this be deemed sufficient evidence to prove the Bank's original obligation to act as guarantor? Or would timeframes of this nature now exclude any possibility to pursue the claim against the guarantor Bank anyway?

Well done nevertheless for your partial win Deeleys.
 

Also it would be interesting to know who would be deemed legally responsible ( under the NEW law relating to BGs ) if the conveyancing lawyer did not ensure that the building licence was made available prior to offplan deposit being made? 

This all begs the question where does due diligence and care on the part of the conveyancing lawyer lie in the eyes of the law in Spain with regard to adherence of all necessary documents being made available to protect the client under purchase contract law?

This is so confusing Maria, as does the latest SC ruling now imply that ultimately the conveyancing lawyer becomes legally responsible if they have not ensured all required documents associated with safe offplan purchase are not made available prior to contract signing?

Will all continuing claims against the Bank(s) in the event of developer breach ( those without links to subrogated developer mortgage and promissory notes, as proved partially successful in Deeleys case ) now be at risk following this latest SC judgement? Will they be left having to make claims against the original conveyancing lawyers as an element of last resort ( I.e. being denied the opportunity to claim against the Bank)? 

P.s. In terms of Banks lacking in EFFECTIVE regulatory structures and Bar Assiciations requirement to ensure adequate sanctions are in place to protect and enhance trust in the Spanish system of justice, it is useful to reflect on Maria's legal tip back in 2020, which endeavoured to educate those who continue to be rightfully concerned by outstanding exposure to risks and the need for a wider perspective to achieve mutually beneficial solutions going forward.

https://www.eyeonspain.com/blogs/costaluz/20442/legal-tip-1475--a-forum-conversation-on-banks-and-lawyers.aspx

This message was last edited by ads on 9/4/2024.

This message was last edited by ads on 9/4/2024.