WHAT'S A GENERIC BANK GUARANTEE AND HOW AFFECTS TO THE DEPOSITS PAID TO HDT?
A generic bank guarantee is an agreement signed between the Bank and the Developer, in which the Bank agrees to deliver bank guarantees for the deposits paid to the builder, and the developer accepts to refund the Bank the amounts covered by the guarantees if he breaches the contracts. The generic guarantee can specify which development (or phases of a development)are covered, or even settle a limit for the amount of deposits covered. So basically is a document where the Bank commits to give a bank guarantee for every deposit paid to the developer by buyers. This means that no individual guarantees are given unless a generic guarantees has been previously signed between the builder and the Bank.
It seems that the generic guarantees signed between HDT and SGR doesn’t include any reference about which developments are covered, the guarantee is extended to any deposit pay for any resort. You have to bear in mind that SGR provided guarantees for several buyers of HDT in Santa Ana, whose contracts were exactly like yours and paid to the same BBVA account, under the provisions of the generic guarantee. So there is one thing we can assure: the generic guarantee covers the resort Santa Ana del Monte, because individual guarantees wouldn’t have been given to buyers otherwise.
The generic guarantee made by SGR settles a maximum amount limit, 65 millions of euros, and when they get opposite to my claim they will probably allege that the maximum amount has already been reached, so they are no longer liable. My opinion is that the “amount limit” is against the provision of the 57/68 Act. SGR is a financial entity, but they just provide financing and not banking services (accounts, etc). So the fact that the deposits were not credited in a SGR’s account is not relevant, because SGR does not provide banking services. Therefore, SGR and DHT did not follow any criteria to decide which deposits paid for Santa Ana were guaranteed, and which weren’t. It was just an arbitrary decision. Consequently, SGR’s liability could be claimed, as long as the art. 1st of the 57/68 Act states that bank guarantees must be delivered to every buyer of an off plan development and the bank must control if guarantees are given to buyers, and the art. 7th states that the rights established by the law can’t be waived. If their excuse is that the deposits were not paid to them because they don’t provide banking services, they should have established additional control systems to make sure that every buyer got an individual guarantee.
Obviously, the first step would be to file a Preliminary Enquiry to get full copy of the generic guarantee: the Court requests to the Bank the original document or an authorized copy, and if the Bank doesn't provide it, the Court could order a search to find it, or even it won't authorize the Bank to use the clauses of the document that could be negative for us in a later proceeding.
Should you have any questions, please do not hesitate to contact me.