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Hi i wonder if you could answer a question for me.
I have won a court case to exersise my spanish bank guarantee for an off plan property.The bank has not paid my money back yet, so the court has issued a writ to force them to pay.
In your opinion do you think this will prove to be sucessfull ?
This is happening a lot with all Banks specially post credit crunch. They try not to honour BGs just to wear you out as a court procedure is expensive and daunting for many. But the fact is that a BG is an executive title that follows a special executive procedure so they are forced to pay up.
Please read our article on Spanish bank guarantees.
Hello
Just found your wonderful site!!
I have a bank guarantee (AVALAN) for a property I purchased in 2006. the property has not been started and the developers have entered voluntary administration on may 9th last year.
I have executed my BG but have received no response in writing. the bank have said that they will only consider repaying if they get the money they are owed as creditors through the administration process.
This means that I am having to wait until the entire administration process is finished. Already this has been nine months.
Surely the whole point of a bank guarantee is that I should not have to worry about this and should just be paid.
I have written to the chairman of the bank (banco pastor) sent a burofax, written to the chairman of the bank of spain and received no response from anyone
How can this happen in the modern world and do you have any advice regarding anything else I can do?
Thanks so much in advance
Dear Madam,Quote:
Originally Posted by Unregistered
Thank you for your kind words.
The whole point of a bank guarantee is for it to act as a safety net should:
1.- The off plan property be delivered late (I'll add substantially late)
2.- Or the developer file for bankruptcy.
Your case would be number two. You do not have to wait for anything nor does your bank. You only have to execute the bank guarantee hiring a Spanish lawyer. If the bank refuses to honour it then your lawyer will follow a swift executive procedure to recover all your stage payments plus legal interests as explained clearly in our article on Spanish bank guarantees. In fact you can even claim back from the bank the legal expenses you will have to pay upfront on executing your BG.
If you are trying to execute a bank guarantee on your own without a lawyer I wish you good luck.
To lodge a complaint before the Bank of Spain you must first contact the complaints department of Banco Pastor. All Spanish banks have a specific complaints department to deal with customers' complaints. If you attempt to bypass this procedure and contact the BoS directly they will reroute you to follow this procedure so you might as well follow it from the onstart unless you enjoy runnning round in burocratic circles.
If the banks' complaint department do not reply, reply unsatisfactorily or take a long time to reply then you can contact the Bank of Spain and lodge a formal complaint agaisnt the bank having proved that you indeed filed a complaint previously. Again your Spanish lawyer will advice accordingly.
Unfortunately the BoS' website is not available in English yet.
http://www.bde.es/clientebanca/quejas/quejas.htm
Needless to say the complaint should be worded in Spanish as it stands to logic.
This is the complaint's department from Banco Pastor:
0072 - BANCO PASTOR, S.A.
SERVICIO DE ATENCION AL CLIENTE DEL GRUPO BANCO PASTOR
MARINA MATEO QUINTANA
DOMICILIO: CL CANTON PEQUEÑO 1 PL.8 DCHA - 15003 A CORUÑA
TFNO. 981127441
FAX. 981127472
E-MAIL. atencionalcliente-grupobancopastor@bancopastor.es
Thanks so much for your advice
I agree it should be straight forward but it is now nine months since our developer went into voluntary administration. The bank refuses to pay as they said they must wait for the judge to resolve the contract (even though it is an avalan) and the civil court says it will not get involved it is waiting for the mercantile court. It means I am left in the middle.
Our current lawyer says that there is nothing we can do but wait for the administration process to be finished??? If you know a different way then you can have a new client!!
Anna
Dear Anna,
You're welcome.
I'm afraid not, it's black or white. Or you follow a Summary Excecution Procedure (3-7 months) or else the Standard Procedure (2-3 years).
Please read our article on Spanish Bank Guarantees.
Thanks again for your reply. I cannot actually find what a summary execution procedure is and where I would serve it. my lawyer tells me that the mercantile court wont accept it and the civil court says the mercantile court must decide not them.
I have already been waiting eleven months for my money. Are you saying my lawyer is incorrect and I should get different advice?
If the courts wont hear my case then what can I do other than wait?
Hi.
We had a bank guarantee and we won a High Court ruling in Madrid against the Bank to return our deposit plus legals and interest in early June.
We still haven't received our money or heard anything and I realise all the courts and offices are closed in August but how long does it normally take for them to refund the money.
Our lawyer says it can take time and is chasing it up.
We have also been told that the bank cannot appeal against this ruling and I am sure if they could we would have heard about it by now.
What are your thought on this?
Dear Sir/Madam,
That in a couple of months you should have it. Normally once there's a Final ruling it doesn't take that long.
In any case, we are speaking of a bank, so they will pay you.
Yours faithfully,
Hello again
Further to my question on 09/04/2009 and your reply.
As yet I still haven't had my deposit returned by the bank.
My lawyer says he is chasing it up regularly via the court procurator and not to worry but I will get it back eventually.
It is now 6 months since the High Court ruling !!!
Is this normal ?
Can you please respond to my previous message regarding the waiting time for the bank to return our deposit.
Thank you
Apologies for the belated reply.
As per my prior treply it normally doesn´t take that long after a High Court ruling.
6 months does seem excessive, yes.
Yours faithfully,
Thank you for your reply.
I have been informed that the bank has now paid the money into the Courts account. I presume this means we will now definitely get the money but what are the normal timescales for the court to pay to my lawyer in your experience.
Thank you
You're welcome.
I'm glad it's in the law court's account.
Shouldn't take long now (yes, I know I've written that before!) 2-4 weeks tops.
Yours faithfully,
How do you go about claming monie back if you have a bank garantee in Spain..??
I am trying to execute a bank guarantee through a lawyer in Cadiz and after 15 months she is telling me that the court case has been won now and I can now execute the bank guarantee through the court which will take about a year.
I wasn’t happy about the timescale but my lawyer, Maria de Castro is very pleasant and explained that in my case it was unfortunate that it was taking so long but it was one of those things.
I’ve been looking around a few forums on the subject and spoken to another person that was in a similar position to me (different development and bank though) and my case seems to be taking a very long time.
I did get a second opinion recently and this lawyer said the procedure should take no longer than 15 months in total and his cases average 10-12 months to pay out. He also says that the money must be lodged with the court by the bank at the beginning so there should be no need to chase the money after the verdict. He also couldn’t understand what the preliminary case was for as the developer had breached the contract (2 years over the finish date) and the bank guarantee should have been enforced. Maria has explained this but it’s really over my head to be honest.
I told her recently about the second opinion and she wasn’t best pleased. She pretty much said that the second lawyer wasn’t in a position to advise as he didn’t have my paperwork and wasn’t aware of the complexity of my situation. Fair enough but the second lawyer was talking in general terms and made that clear.
Anyway, I would like another opinion as to who is right.
Previous posts by you seem to suggest the second lawyer is right and it’s a straightforward procedure if handled by a lawyer.
What do you think?
Dear Sir or Madam
I think you should heed the advise of the lawyer who is currently representing you.
Your appointed lawyer has all the facts and related paperwork. Perhaps the other lawyer is not aware of a particular problem hindering the refund.
At times Banks and Insurance Companies honor Bank Guarantees without litigation and yet at other times you are forced to litigate because they will not cave in. And when you do litigate some procedures are faster than others.
In Law not everything is black or white and more so when it comes to litigating in Spain...
From the fact your refund is taking longer than usual it cannot be inferred in any way that your lawyer does not kmow what she is doing.
At times our law firm executes a BG and our clients are swiftly paid and at others it is a protracted long and drawn out procedure. This doesn't make the former lawyer dumber or the latter brighter as they are one and the same on both accounts. Every case is different and must be judged on its own merits with all facts at hand.
I would advise you patience which living in Spain becomes almost a necessity rather than a virtue.
Yours faithfully
Raymundo LarraÃ*n Nesbitt
I bought a property in Malaga which still hasn’t been completed and is well past the finish date on the contract. I was recommended a lawyer through a company called EAS and he is great – he’s recovering my money via bank guarantee and the bank has agreed to pay without going to court. All well and good on that score.
However, I do have another property which I had already completed on by the time I spoke with an EAS adviser but I am very unhappy with the property as it was meant to be front-line golf and it’s not and it’s a fair bit smaller than on the contract. I did sign off on it – I know, I know but I was told by the agent that they would arrange to change it free of charge to a frontline one once they’d got things finalized. I know I’m a mug but I was so stressed and they made it seem like it was the right thing to do. Needless to say that bit wasn’t in writing. And of course they haven’t changed a thing and have denied all knowledge of the verbal agreement.
EAS did look at my paperwork but they advised me that it’s very difficult, long-winded and expensive to do anything once I’ve accepted the keys and have recommended I let this go and just try and use the property or sell it – I wish!
I’m not too happy about this as I have ended up with something I didn’t pay for. The agent, the lawyer and developer don’t want to know and EAS have said that they have given me the best advice even if it’s not what I want to hear. The lawyer dealing with the bank guarantee agrees with this also.
What do you think of this? Would it be very expensive and would I win?
Dear Sir or Madam
I've never heard of a Spanish law firm under the acronym "EAS". Can you please write the full name of this law firm so I know to whom you are referring to?
Regarding the advice given I agree. You have already completed on the property and it is now yours; it would be nigh to impossible to change it at this point in time. At the time you should have been advised not to sign or else to request a hefty compensation to offset your loss. Regarding the difference in size you can claim as well but it depens exactly on how much percentage wise is the difference. Otherwise it may not warrant taking legal action.
In fact if you litigate to have the property "changed" to another one, I would label it as indulging in reckless litigation which is something I personally disagree with because its paying good money after bad.
Yours faithfully
Raymundo LarraÃ*n Nesbitt
Re Bank guarantee;
Dear sir madam
My frustration is beyond belief, My Situation seems far worse with respect to anybody else that I have read; With a brief of insight as I can is as follows;
1. Purchased of plan with BG 2006 With two stage payments of approximately £43,000
2. Exercised B G in 2009 After a lengthy wait and much frustration won appeals in court of Madrid for stage payments interest and out of course expenses in 2011, When my solicitor said they had 18 days to Appeal ( For which they did not)
3. After a few emails to the bank in question there has been no reply:
4. My solicitor has now informed me that they are going to go back to the courts of Madrid to put a freeze on their cash within the bank for my initial outlay and then pursue the interest and fees afterwards;
I feel I am no more forward in this situation then I was in 2009 I now have to wait again for the courts of Madrid to put a freeze on their cash assets does this sound all correct to you please please help me
Yours faithfully
Paul stevens