Bank Guarantees: All That You Ever Wanted to Know but Were Afraid to Ask

[Russ]

Hello All, I was wondering if anyone could provide me some assistance. I was purchasing a vehicle from an individual who was suppose to be in Spain that ended up being fraud. The money was transfered to a bank in Spain (La Caixa) and as soon as I was aware of the fraudulent transaction I was able to block the funds from removal in Spain. To get these funds returned to me the bank has requested a police report (which we sent) as well as a letter of guarantee. My bank in Canada has never had to issue this type of document before and has requested a "sample" letter so they can get some thing produced here. If someone could supply either information or a sample document that would be fantastic. At this stage we hit a bit of a road block due to langrage issues at the bank as well as difficult in getting the back to respond in a timely fashion. At this stage were 2 months into this process and were just getting to the stage on what documents are required to get this completed.

Thanks Russ

[Howard Lester]

We bought off plan in Denia, Spain in 2003 and paid a stage payment. We were not issued with a back guarentee neither were we advised by our lawyer that we should have one. The developer has been bankrupted and we have won a court judgement but there is no fund to repay our loss. Who is responsible for the issue of the BG, is it the bank, the developer or the original Abogado. Is there any point in persuning a claim?

[Joe Sem]

My company has 3 bank guarantees open with the Spanish Customs Authority dating back to the early 80s. We are trying to close the bank guarantees but neither us or the Spanish Customs Authorities have the original documents. The only surviving proof is a copy by the bank.

Although both parties are agreeing to close the guarantees, the bank will not allow us to close without the original documents.

Any Ideas on how to close them?

[Peter Dawson]

I engaged a lawyer in the summer of 2006 to handle my affairs when dealing with the developer.

The lawyer claimed to be a ‘specialist solicitor’ in dealing with purchases of this type and I was given a booklet written by their senior solicitor outlining how my deposits would be ‘risk free’ and secured by bank guarantee.

Specifically they said in the booklet that care should be taken to ensure my money was deposited into a special bank account and a copy of the bank transfer be obtained.

My money was deposited into 2 banks under their instructions, Valencia and Santander. Subsequently a bank guarantee was issued by Valencia along with a ‘note’ from the developer, a copy of which I did not receive until after the developer went into liquidation in 2010, stating that my money was transferred to the ‘special account’.

When we invoked the guarantee Valencia would only return £20,000 GBP and I have ‘lost’ £22,000 GBP because the developer did not in fact transfer my money.

I therefore hold the solicitor negligent in not ensuring my money was protected and in breach of contract in not doing what they said they would do in the booklet they gave to me.

Do I have a case against the solicitor?

[Patricia]

Dear Mr. Dawson,

I understand you concern and that you must certainly claim that the property purchase was so badly processed in the end, however, the lawyer is not responsible of the bank guarantees procedure once the money has been transferred to the developer; it is responsibility of the developer entirely. The lawyer must make sure that the bank guarantees have been requested, to protect the client´s interests in the future. I recommend you to contact an expert solicitor that can study the documentation and advice on where you stand and how to claim your funds back if possible. If you wish you can contact me on Patricia at Lawbird.com so we assist further.

Best Regards,

[ian]

goodafternoon i bought off plan a house in lamanga we have full bank guarenties,the house is nearly two years late but we have been patient as this was to be the house off our dreams we moved to spain in feb 2011 for good but the house was not ready after many delays we were advised by the developer that in june all the habitation licences would be in place and we could complete our purchase we had a mortgage valuation and a mortgage offer in writing we were ready to go and the developer alloud us to move in to the property assuring us that we would complete in two weeks,since this time the developer has fallen on hard times suppliers have not been paid and he refuses to talk to us,now we have decided that it is impossible for us to complete so we have started down the road off getting our bank guarrenties back as we need to get on with our lives,and as far as we are concerned the developer has not completed the contract.we have requested our money back vie the bank guarenties we are waiting to here,we are still in the house as we have no where else to go and we have allready invested 700.000 euros into the house and for us to loose that amount would be a dissaster.can u please advise what we should expect.

[Patricia]

My company has 3 bank guarantees open with the Spanish Customs Authority dating back to the early 80s. We are trying to close the bank guarantees but neither us or the Spanish Customs Authorities have the original documents. The only surviving proof is a copy by the bank.

Although both parties are agreeing to close the guarantees, the bank will not allow us to close without the original documents.

Any Ideas on how to close them?

Hello Joe,

The fact of having lost the original documents does not allow the bank to refuse to cancel the guarantees, especially if the beneficiary of the same ( Spanish customs ) expressly accepts it. The most advisable thing to do is to go to the bank with a representative of the Customs dept. to cancel the bank guarantees, and if they refuse due to the lack of original documentation, the cancelation application could then be signed before a Notary mentioning that the original documentation was lost, and then filing that document at the bank. If, even after these actions, the bank still refused to cancel the guarantees, you could address the Bank´s consumers´ Protection regulations. If this did not have a positive result either, the Bank of Spain or even a Judge could have the last word, presumably, in your favour.

Regards,

[Patricia]

Hello Ian,

Please accept my apologies for this late reply.

We can study your case if you let us have a look at the corresponding documentation.

Please feel free to send me an e-mail on Patricia at Lawbird.com with the relevant documents and I will be able to offer you the required legal advice within 3 days maximum.

Best Regards,

[Colin]

Hello Ian,

You are enlightening. Tell me please, what if a development had offered bank guarantees however your lawyer failed to get them despite all other client lawyers on the development being successful? The lawyer told us that he had general guarantees which were equally as good - strangely enough they are not.

If you have time to reply then very much appreciated.

Regards,

Colin

[Jason]

This article is the most updated I have seen regarding this controversial matter (and rip-off!), interesting reading:

http://www.lawbird.com/wordpress/bank-guarantees-case-law-and-la-fortuna-golf-residencial-pinatar-el-pinet-and-others/