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23 Jun 2009 1:24 PM:

 Dear Maria. 

Regarding Bank guarantees. 

We have cashed  in many bank guarantees. 

I am surprised when you say that the norm is fo rthe banks not to pay out on a bank guarantee forcing you to go to court. (this could lead peple not to attempt to cash their BG. putting them inj danger of loosing their money)

If the bank guarantee is correctly written, and their is a clear breach of contract by the builder , the banks DO PAY . 

We have presentd exectuion of bank guaranteed amongt others against Bankinter, Banco Popular, Banco de Andalucia, Cajamurcia ,Banco de Valencia, CAM bank  CAJA MADRID etc.  THEY ALL PAID. 

All these banks mentioned above have paid out on bank guarantees executed by us (wihtought going to court)

They do need to  be pushed , and the correct point of  pressure needs to be  aplied, but if the builder is in clear breach of contract the bank guarantee is correctly written, and is not out of date (many bank guarantee state they are not valid after a certain date/the legalitie of this clause is not clear, but banks will not pay out if exectured after this date) the BG can be cashed. 

It is very possible that if a buyer tries to do it on his own, he mignt be messed around, but a bank will not unlawfully refuse  pay out on a bang guarantee (which is a binding document for them ) unless they have at least one legal leg to stand  on (i.e. BG out of date, the breach of contract by the builder is not serious enough ).

We have come across one bank (the exception to the rule) that will not pay if the Builder is allready in concurso de acreedores , as they feel it could cause them problem with the administrador concursal. This particular case was sorted out joining the concurso and prsenting an incidente judicial.

IF PEOPLE HAVE BANK GUARANTEES THEY MUST BE CAREFULL THAT THEY DO NOT ELAPSE. 

If the BG  does not mention their obligation to pay interest, in a couple of cases they have refused to pay this interest. 

I am convinced that if I whent to court I would win in relation to teh interest, but in both cases my clients did not wish to persue it further. 

I am sure you must have examples of cases in which the bank has not paid, but their refusal to pay I am sure will have a reason atttached.  i.e They consider their is not a breach of the builder contract yet, the BG. has elapsed  etc. If the BG is correct , the breach is clear (for example non completion 6 months after the completion date),  and the execution has been presented in form I find it difficult to understand how the bank  can not pay. 

We have executed no less than 70 BG.s and all but one where paid . I only have one case at the monent in which the bank has not paid when I consider they should , which is with BANCO de VALENCIA, who has refused to pay the bank guarantee while  the building company is in concurso until the judge handling the concurso tells him to do so. I could achieve this with an incidente judicial at the CONCURSO, but up to now we have not done this. But thi is just the exception to the rule. 

Havingn said all the above, I can agree that most of the buyers out thier do not have BG. and that many who have have let them elapse. The bank will also normally play games and call the builder , so that he in turn can call the client to try and convince him/her to pull back the request of payment of the BG. (they do this, because the bank knows that if all is presented correctly they will not be able to escapte payment , and that they in turn will then have to turn to the builder to get theri money back after paying th client. 

 

 

 

 

 

 

 



Thread: portabello by proindal introduced by Mri

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23 Jun 2009 1:08 AM:

 Dear Grandslam.

To execute they bank guarantee I would suggest using a solicitor.

If you wish to try and save the solicitor fee, the precedure would be as follows: 

Prepare a claim for the bank to pay you your deposits paid  , plus interest.

Go to the bank with your originala bank guarantee and your claim. Take photocopies of both documents. When you get to the bank they could ask to see the oriinal bank guarantee, but you MUST NOT LET THE DOCUMENT OUT OF YOUR OWN HANDS. 

They must stamp an entry stamp on your copies as proof of entry. 

If the bank is correct, they will pay within three to four weeks. Most banks though wil try and cause you as much grief as possible. The first thing they will do is call the builder who in turn will call you to try and get you to withdraw your claim. 

If you have not receive the money after three weeks, we recommend orgaisin a requerimiento notaria via a local notary. I.e. you ge the notary to present himself at the notary with yourself with and theoriginal bank guarantee demanding payment on the spot. 

At this point the bank would be crazy if they did not pay. 

If they do not you should put a complaint in writing to the bank of Spain. 

These are the steps. The last one would be to sue the bank, but it would not be normal for the bank to not pay out. 

As more and more coompanies go under and the banks in turn get into more trouble bank will in general become slower in paying out the BG.  but in genear should pay. 

You can do all this yourself except for suing, but I personally think that the chances of success will increase if you use a solicitor acustomed to these claims. 

Michael Davies. 

Abogado. 

DAVIESSOLICITORS. 

Offices: Mojacar and Almeria. 

 

 

 

 

 

 

 

 

 

 

 



Thread: portabello by proindal introduced by Mri

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23 Jun 2009 12:49 AM:

 I would cash in on the bank guarantee unless a very good discount is offerd on another property. 

 

Michael Davies.

Abogado.

DAVIESOLICITORS



Thread: portabello by proindal introduced by Mri

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