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GM LEGAL EXPERTS NEWS / NOTICIAS DE GM LEGAL EXPERTS

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BBVA'S GENERIC GUARANTEE FOR HERRADA DEL TOLLO (SANTA ANA DEL MONTE) FINALLY RELEASED 
Despite we were already aware that BBVA and Herrada del Tollo signed a generic guarantee contract for Santa Ana del Monte, we have finally got today access to the document, and there are three esential aspects to bear in mind:
- the aim of the policy is, literally, to guarantee the deposits paid by ALL the purchasers of the development San Ana del Monte. So it is a contract signed under the provisions of the Law 57/68.
- the contract does not mention any "special" account number into which deposits should have been paid in order to enforce the guarantee.
- The top credit set on the contract has not been reached yet (I mean, the amount of deposits guaranteed by BBVA under the provisions of this contract it is still under the top credit set on it).
SALE A LA LUZ LA LINEA DE AVALES DEL BBVA PARA LA PROMOCIÒN SANTA ANA DEL MONTE (HERRADA DEL TOLLO SL).
Aunque ya nos constaba la firma por el BBVA…

GM LEGAL EXPERTS WON CASE / CASO GANADO POR GM LEGAL EXPERTS

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BANK GUARANTEE FOR 3 MOLINOS RESORT SUCCESSFULLY ENFORCED
A customer from our Law Firm has already got his deposit back from Banco Santander after enforcing his bank guarantee in the Court. The Bank did accept the claim and pay the principal, plus legal interest and defense cost, into the court's account.
AVAL BANCARIO DE 3 MOLINO RESORT EJECUTADO CON ÉXITO
Un cliente de nuestro despacho ha recibido ya del Banco Santader el depósito pagado a la promotora, tras instar la ejecución del aval bancario del que era beneficiario en el Juzgado. El Banco se allanó a la demanda e ingresó el principal, más los intereses y costas en la cuenta de depósitos y consignaciones del Juzgado.

NEWS ABOUT JUDICIAL DECISSIONS / NOVEDADES JURISPRUDENCIALES

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THE BURGOS MAGISTRATES COURT SENTENCES AGAIN A BANK TO REFUND THE DEPOSIT TO THE PURCHASER UNDER THE PROVISIONS OF A GENERIC GUARANTEE

The Magistrates' Court from Burgos has sentenced again a Bank to refund the deposit to a purchaser under the provisions of a generic guarantee and the 57/68 Act. The Court understands that the lack of delivery of an individual guarantee to the purchasers, the lack of payment of the deposit into an special account, or the "supposed" lack of knowledge of the purchase contract by the Bank, are not enforceable against the purchaser, because those are developer's duties, whose breach can't affect the purchaser, as long as he fulfilled his contractual obligations. A copy of the sentence is attached.
LA AUDIENCIA PROVINCIAL DE BURGOS SENTENCIA DE NUEVO A UN BANCO A PAGAR EL DEPÓSITO A UN COMPRADOR A PESAR DE QUE ÉSTE NO ERA BENEFICIARIO DE UN AVAL BANCARIO INDIVIDUALIZADO.


La Audiencia Provincial de Burgos ha condenado nuevamente a una entid…

LEGAL NEWS / NOVEDADES LEGISLATIVAS

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NEWS TO SPEAD UP EVICTIONS From now on the tenant has just 10 days to be opposite to the eviction claim. Unless the tenant alleges that rents are not due, are already paid, or pays them within the 10 days, the eviction order will be enforced by the Court without trial.
NUEVAS MEDIDAS PARA AGILIZAR EL DESAHUCIO El inquilino solo dispone de diez dias para oponerse a la demanda de desahucio alegando el pago de las rentas. Si no se opone o no paga en el plazo de 10 dias, se ejecutará la orden de desahucio sin ni tan siquiera celebrar el juicio.

GM LEGAL EXPERTS WON CASE / CASO GANADO POR GM LEGAL EXPERTS

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ANOTHER BANK GUARANTEE FOR THE HERRADA DEL TOLLO'S DEVELOPMENT "SANTA ANTA DEL MONTE", ENFORCED AGAINST BANCO PASTOR
Another customer from our Law Firm, purchaser in the Herrada del Tollo's development "Santa Ana del Monte", gets a favourable judgement from the Court to enforce a bank guarantee against Banco Pastor, which covered the deposits paid to the builder plus the legal interest, despite he just hold a COPY because the bank rejected to give him the original. The First Instance Court number 23 from Valencia has just rejected the bank's opposition to our enforcement claim and sentenced that bank guarantees' copies are enforceable, specially if the purchasers does not hold the original because of the bank, and the authenticity of the guarantee wans't questioned by the bank in the process.
OTRA COPIA DE AVAL BANCARIO DE LA PROMOCIÓN DE HERRADA DEL TOLLO "SANTA ANA DEL MONTE" EJECUTADA CONTRA EL BANCO PASTOR
Otro cliente de nuestro desp…

GM LEGAL EXPERTS WON CASE / CASO GANADO POR GM LEGAL EXPERTS

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SOLERA EL TRAMPOLIN SENTENCED TO REFUND DEPOSITS PAID TO TRAMPOLÍN HILLS GOLF RESORT SL, AS THEY ARE BOTH MEMBERS OF A GROUP OF COMPANIES

The Murcia Magistrates' Court has accepted the appeal brought by GM LEGAL EXPERTS on behalf several Trampolin Hills' purchasers, and has sentenced Solera El Trampolin to pay, jointly with Trampolin, the deposits to these purchasers, even for those whose deposits were not guaranteed by Solera on the contract. This way, these purchasers are registered as creditors not only in Trampolin Meeting of Creditors, but also in Solera's
SOLERA EL TRAMPOLIN CONDENADA A DEVOLVER DEPOSITOS A COMPRADORES DE TRAMPOLIN HILLS GOLF RESORT SL POR EXISTIR GRUPO EMPRESARIAL
La Audiencia Provincial de Murcia ha estimado el Recurso presentado por GM LEGAL EXPERTS en representación de varios compradores de Trampolin Hills Golf Resort, y ha declarado a Solera El Trampolin responsable solidario de las cantidades entregadas a cuenta del precio por los compradores a TR…

GM LEGAL EXPERTS NEWS / NOTICIAS DE GM LEGAL EXPERTS

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GM LEGAL EXPERTS HAS BROUGH A CLASS ACTION AGAINST LA CAIXA FOR THE DEPOSITS PAID TO TRAMPOLIN HILLS
The First Instance Court nº 38 from Barcelona has accepted for consideration the class action against La Caixa filed by GM LEGAL EXPERTS on behalf 40 Trampolin Hills purchasers who are claiming the refund of their deposits under the provisions of the Generic Guarantee signed by La Caixa with Trampolin Hills.
DEMANDA COLECTIVA PRESENTADA POR GM LEGAL EXPERTS CONTRA LA CAIXA POR LOS DEPOSITOS ANTICIPADOS A TRAMPOLIN HILLS
El Juzgado de Primera Instancia nº 38 de Barcelona ha admitido a trámite la demanda colectiva contra La Caixa (ahora Caixabank) interpuesta por GM LEGAL EXPERTS en representación de 40 compradores de Trampolin que reclaman la devolución de las cantidades anticipadas a cuenta del precio con fundamento en las pólizas de contragarantía (línea de avales) suscritas por la Caixa con Trampolin.

GM LEGAL EXPERTS NEWS / NOTICIAS DE GM LEGAL EXPERTS

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GENERIC GUARANTEE FOR  3 MOLINOS RESORT UNDERCOVERED
Banco Santander signed with 3 Molinos a Generic Guarantee in which the Bank commited to provide individual guarantees to the purchasers, and even a few purchasers got an individual guarantee, but those purchasers who don't hold an individual guarantee are entitled now to claim to the Bank the refund of the deposit, plus legal interest, under the provisions of the generic guarantee.
LA PÓLIZA DE AFIANZAMIENTO DE LA PROMOCIÓN 3 MOLINOS RESORT AL DESCUBIERTO
El Banco Santander firmó con la promotora 3 Molinos una línea de afianzamiento en la que el Banco se compromete a avalar las cantidades anticipadas por los compradores, si bien sólo algunos obtuvieron el aval individual. Pero en base a esta póliza de afianzamiento, cualquier comprador puede reclamar al Banco la devolución de las cantidades entregadas al promotor, incrementadas con el interés legal.

GM LEGAL EXPERTS NEWS / NOTICIAS DE GM LEGAL EXPERTS

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DEPOSITS PAID BY PURCHASERS OF THE DEVELOPMENT CASTALLA INTERNATIONAL, COVERED BY A BANESTO'S GENERIC GUARANTEE
The office of Banesto Bank from Orihuela signed with Castalla International (San Antonio Group) a Generic Guarantee in which the Bank committed to provide individual guarantees to the purchasers. So any purchaser whose property is not being completed in time is entitled now to claim for the refund of his deposit plus legal interest to the Bank, even without holding an individual bank guarantee.
LAS CANTIDADES ANTICIPADAS POR COMPRADORES DE LA PROMOCIÓN CASTALLA INTERNACIONAL, GARANTIZADAS POR UNA PÓLIZA DE AFIANZAMIENTO SUSCRITA CON BANESTO.
La oficina de Banesto de Orihuela suscribió con Castalla Internacional (grupo San Antonio) una línea de avales en la que asumían el compromiso de garantizar la devolución de los depósitos a los compradores mediante la entrega de aval bancario. Consecuentemente, cualquier comprador cuya propiedad no haya sido construida o entregada en el…

GM LEGAL EXPERTS NEWS / NOTICIAS DE GM LEGAL EXPERTS

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BANCAJA TO REFUND DEPOSITS PAID BY THE BUYERS OF AUGIMAR FOR THE DEVELOPMENTS TORRESBLANCAS, FORUM Y BARLOVENTO IN CASTELLON
Bancaja signed with Augimar a Generic Guarantee in which the Bank committed to provide an individual guarantee to every purchaser of the developments Torresblancas, Forum and Barlovento. So any buyer who bought there that hasn't be built or completed by the time agreed on the purchase contract is entitled to claim the refund of the deposit plus legal interest to Bancaja, even without holding an individual bank guarantee.
BANCAJA OBLIGADA A RESPONDER DE LOS DEPÓSITOS PAGADOS POR LOS COMPRADORES DE AUGIMAR EN LAS PROMOCIONES TORRESBLANCAS, FORUM Y BARLOVENTO EN CASTELLON.
Bancaja suscribió con la promotora Augimar una línea de avales en la que el Banco se comprometía a garantizar la devolución de las cantidades anticipadas por los compradores de las promociones Torresblancas, Forum y Barlovento. Consecuentemente, cualquier comprador de estas promociones cuya vivi…
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NEW RULING SENTENCING BANKS TO PROVIDE INDIVIDUAL GUARANTEES TO PURCHASERS UNDER THE PROVISIONS OF A GENERIC GUARANTEE
New ruling from a Spanish Magistrates' Court (Burgos) sentencing Banks to provide to the purchaser an Individual Bank Guarantee under the provisions of a Generic Guarantee. The Court understands that the lack of payment of the deposits into the "special account" and the expiration date of the generic guarantee are clauses not enforceable against the purchasers, as long as they were not involved in the negotiation and their rights can't be waived (art 7, 57/68 Act) .
NUEVA SENTENCIA CONDENADO A LOS BANCOS A ENTREGAR AVALES INDIVIDUALES A LOS COMPRADORES EN VIRTUD DE UNA PÓLIZA DE AFIANZAMIENTO SUSCRITA CON EL PROMOTOR.
Nueva sentencia del la Audiencia Provincial de Burgos condenando al Banco a entregar al comprador un aval individual en virtud de la póliza de afianzamiento suscrita con el promotor. El Tribunal entiende que la falta de ingreso de la canti…

GM LEGAL EXPERTS NEWS / NOTICIAS DE GM LEGAL EXPERTS

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LA CAIXA,  VERY LIKELY TO REFUND DEPOSITS TO TRAMPOLIN HILLS' BUYERS


La Caixa signed with Trampolin Hills a Generic Guarantee with Trampolin Hills, in which, on the one hand, La Caixa committed to provide guarantees to Trampolin's buyers and, on the other hand, Trampolin agreed to pay some interest and commissions for every guarantee made.
There are several Magistrate's court sentences which rule that a generic guarantee covers the deposit paid by every purchaser, no matter in which account it was paid, because it is not a buyer duty to make sure that deposit is paid into an special account. It is a developers' obligation, and the Bank who signed with the builder the generic guarantee must control any funds paid by buyers to the builder and make sure the builder provides a guarantee to all of them. In this particular case, La Caixa can't excuse their liability alleging that they weren't aware about the existance of an account in Cajamar in which some buyers were p…

FOR FIRST TIME, CLASS APPEAL CLAIMING AGAINST TERRAZAS DE LA TORRE CONTRACTS' NULLITY TO BE CONSIDERED BY THE SPANISH HIGH COURT

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After a long road, and joining their forces, a group of Terrazas de la Torre's purchasers, represented by GM LEGAL EXPERTS,  have taken the contracts' nullity case away from Murcia Magistrates' Court and their appeal is going to be considered by the Spanish High Court in Madrid. This is a big achievement, because to reach the High Court isn't easy: the amount claimed must be superior to € 150,000 and amounts from different petitioners can't be summed unless the cause of the action (I mean, the main grounds of the case) is iqual or similar for all of them. 
From the very begining GM LEGAL EXPERTS prepared the case being focussed on the High Court appeal, as long as the precedents from Murcia Magistrates' Court were just supportive with Polaris (against the criteria of most of the Magistrates' Court for similar cases). And we are now proud to say that our clients have a real chance to get their deposits back.
If the High Court (Tribunal Supremo) accepts the cla…

NEW DETAILS OF THE GENERIC BANK GUARANTEE FOR SANTA ANA BUYERS RELEASED

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Over the Easter's break some buyers have posted me information that their former solicitors got from San Jose, but it was not considered relevant. And some new interesting details about the generic guarantees have been released.  1.- The SGR generic guarantee was signed before August 2005 (before contracts with buyers were singed). So SGR excuse can't be that they did not provide guarantees for deposits paid before they signed the generic policy with San Jose & Herrada. 2.- € 1,500,000 from the 6,5 millions maximum amount covered by SGR have not been used yet (learnt from a representative of San Jose over the phone). 3.- BBVA and CAM Bank also singed with San Jose and Herrada generic guarantees. BBVA provided individual guarantees to buyers of Herrada who paid on the account shown on purchase contracts (01822980330201522159). This probably means that this is a special account, so Bank shouldn't have allow the developer to withdraw funds for purposes different than buildin…

MORE GOOD NEWS TODAY FOR HDT BUYERS

I have just found out that Banco Pastor also signed a generic  guarantee with Herrada del Tollo, so Banco Pastor is also liable. I still don’t know which the conditions & terms of the generic guarantee are, but I am sure that they will be similar to the one signed with San Jose Inversiones (no mention to the resort or properties covered by the guarantee, and with a "limit" amount).
This means that the low cost class action will be brought against both, SGR & Banco Pastor. Previously, a Preliminary Enquire will be filed to request through the Court the original, or the authoirzed copies, of the generic guarantee.
Should you have any questions, please do not hesitate to contact me.

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 co…

CONFIRMED: BUYERS' DEPOSITS FOR HERRADA DEL TOLLO, SAN JOSE INVERSIONES Y PROYECTOS URBANÍSTICOS AND INVERSOL GRUPO URBANÍSTICO ARE COVERED BY A GENERIC GUARANTEE POLICY

I am really happy today, because I can confirm to buyers of "Herrada del Tollo SL", "San Jose Inversiones y Proyectos Urbanísticos", and "Inversol Grupo Urbanistico" that their deposits are covered by generic guarantees. Yesterday, a Eye on Spain forum member posted me some paperwork he got from his agent, because he wan't sure about how important they could be. I was really astonished when I saw them, because they were:  - a certificate from SGR  about the existence of a generic bank guarantee for Herrada del Tollo.The certificate states that the guarantee is not made to cover just particular developments or properties, and settles a maximum amount as a limit (6,5 millions euros).  - A copy of the first pages of three Generic Guarantees contract signed between Banco Pastor & San Jose Inversiones y Proyectos Urbanísticos (in one of them is also included Inversol Grupo Urbanístico). On the contracts there is not mention to which developments are cover…

BANK GUARANTEE COVERS LEGAL INTEREST, WHICH CANNOT BE WAVED

Many buyers from San Jose and Herrada del Tollo who got their deposits covered by a Guarantee from SGR accepted to recover the principal and sing a relinquishment agreement for the legal interest. The art. 7th of the 57/68 Act establishes that the rights that the law establishes for the buyers cannot be WAVED. In addition, the artícle 1st states that the developer must give to the buyer a bank guarantee which covers principal plus LEGAL INTEREST. Therefore, the right to get the legal interest paid is ruled by the law, so it cannot be waved. This means that any relinquishment document is against the law and void. Should you have further questions, please do not hesitate to contact me.

SGR TO REFUND DEPOSITS FOR BUYERS OF SAN JOSE INVERSIONES

Finally we have had access to extremely relevant information about “San Jose Inversiones y Proyectos Urbanísticos”, which was being covered up to now.
San Jose and the Financing Entity SOCIEDAD DE GARANTIA RECIPROCA (SGR) signed a “generic” Bank Guarantee policy, with no specifications about for which resort was released the guarantee. In fact SGR issued bank guarantees not only for buyers of the development “El Pinet”, but also for buyers of “Playa Golf”. This means that SGR and the builder decided arbitrarily which deposits were covered and which weren’t.
The existence of this “generic” policy entitles any buyer who bought in one of the “San Jose Inversiones y Proyectos Urbanísticos” to claim SGR liability, even if the individual Bank Guarantee wasn’t given to him/her, pursuant to the article 1.2 of the Act 57/1968.
San Jose’s Meeting of Creditors is almost complete, because the Agreement with the creditors was recently approved. But this is not an obstacle for the buyers to bring an …

RESORT TRES MOLINOS CALLED FOR MEETING OF CREDITORS

Last January Resort Tres Molinos S.L., was called for Meeting of Creditors, leaving many purchasers who never got their bank guarantee really upset about their deposits.
Fortunately the Meeting of Creditors is not the only chance that buyers have to get deposits refunded. As I explained on previous posts, the Article 1 of the 57/1968 Spanish Act states that funds paid in advance by purchasers must be credited into a Special Account held at a Bank or Savings Bank.  The Special Account must be separate from any other account held by the developer and must only contain funds deposited for the construction of dwellings. It is the responsibility of the Bank or Savings Bank to ensure that the Special Account is opened and must either issue the aforementioned Bank Guarantee themselves.
So Bank liability can be claimed as long as there are evidences that Bank was aware that the account was held by a builder and the money credited into it came from buyers. 
In the "Resort Tres Molinos" …

CHANCES OF THE TRAMPOLIN HILLS' AFFECTED PURCHASERS

When the Meeting of Creditors of Trampolin Hills was called, many purchasers felt that their chances to get their dreamed property, or their deposits back, were spoiled.
But a new door is being opened by the Spanish Courts: Banks who collected the purchasers deposits can be claimed responsible, as long as they allowed Trampolin to withdraw funds from the account for different purposes than building, no matter whether the account was called "current" or "special".
In this case, Banks who collected funds (La Caixa, Cajamar) can't claim for their lack of knowledgment about the business activity of Trampolin Hills and the origin and purpose of the funds paid into accounts, because General Bank Guarantees policies to cover part of the purchasers' deposits were issued by them, and they, in agreement with the developer, decided which ones were covered by the guarantees and which ones were unsafe.
GM LEGAL EXPERTS is preparing the case against both entities, to claim …

SOLERA EL TRAMPOLIN 'S MEETING OF CREDITORS

Later last year the Mercantile Court nº 2 of Murcia called the meeting of creditors of another company of  "Grupo Trampolin", SOLERA EL TRAMPOLIN SL. Despite the meeting has been declared "voluntary" by the Court, our Firm is claiming that it should be considered "necesary", as long as our call's petition on behalf several creditors was filed several months before than the company's petition.
If our claim is sustained, and the meeting is turn into "necesary", the creditors who filed the petition will get 25% on their credits guaranteed against the Bankruptcy estate. Obviously, the trustees in Bankruptcy are opposite to our petition (the more credits guaranteed against the Bankruptcy estate, the less they have available for their fees).
Right now, we are waiting for the Trustee's report about Solera El Trampolin's financing position.
In addition, many purchasers are preparing a case against CAM Bank, under the provisions of the 57/19…

NEW RULING WHICH SENTECES THE ANNULMENT OF MINIMUM INTEREST RATE CLAUSES FROM MORTGAGES

Later last year the Court of Seville sentenced for the first time the annulment of minimum interest rate clauses (MIRC) included by several Banks on the mortgages' deeds (BBVA, Caja de Ahorros de Galicia, Cajamar y Cajamar Caja Rural).
Just a few weeks ago we were reported that the greatest class action against MIRC from mortgages was provisionally admited by the Mercantile Court from Seville.
Today a new ruling about the minimum interest clauses has been released. The decision comes this time from the Leon's Mercantile Court, and basically accepts the grounds of the previous sentences: the MIRC are out of step with the maximum interest rate clauses, which could be hardly undertaken by customers and are unconnected to the reality.
The consequences of the annulment are that the parties get restored to their original positions, so any extra interest charged by the Banks pursuant to those "tricky" clauses must be refunded to customers.
Several customers associations have re…

BANK GUARANTEES ENFORCEMENT

Over the last few years Magistrates' Courts have ruled about different issues related with the bank guarantees enforcement.


Some of the most relevant issues about this matter are:


Bank guarantees copies can be enforced as long as the Bank doesn't provide evidences of falsehood. This is a widespread opinion.Expiration dates on bank guarantees are against the law. Bank guarantees just expire when the property is delivered to buyer in time or the habitation's certificate is obtained.For some magistrates' courts, the cancellation of the purchase contract is not a previous requirement to enforce bank guarantees. This is not an unanimous opinion.Bank Guarantees can be enforced for the total deposit paid by the purchaser, even if the amount covered is lower, as long as all the money was credited into the same builder's account. This is not an unanimous opinion.Bank Guarantees include the interest repayment, so the interest amount can't be reduced or removed pursuant to …

INTEREST RATE SWAP AGREEMENTS' ANNULMENT

An interest rate swap contract is an agreement in which one party (customer) agrees to pay a fixed interest rate in return for receiving an adjustable rate from another party (Bank).

During the key years of the hausing bubble, a large number of Banks' customers were led to sign swap contracts under the belief that they were getting an insurance to cover the increase of the interest rate.
But the mortgage rates' descent shown them that they couldn't take advantage of that descent because the swap applied and Bank charged them the difference between the fixed rate established on the contract and the applicable rate. 
Over the last few months several courts have sentenced the nullity of swap agreements. The grounds for annulment arepatent defects in the way that consent to the swap contract was given. In the cases sentenced, customers were not experienced in financial products, and Banks couldn't provide evidences that the proper advice about the agreement and required infor…

BANKS' LIABILITY TO REFUND DEPOSITS TO PURCHASERS

The Article 1 of the 57/1968 Spanish Act states that any developer of homes must issue at no cost to the Purchaser a Bank Guarantee or a Certificate of Insurance for ALL deposit payments plus legal interest.  The Bank Guarantee may be executed by the purchaser if the construction does not commence or complete for any reason by the agreed deadline.


The article also states that funds paid in advance by purchasers must be credited into a Special Account held at a Bank or Savings Bank.  The Special Account must be separate from any other account held by the developer and must only contain funds deposited for the construction of dwellings. It is the responsibility of the Bank or Savings Bank to ensure that the Special Account is opened and must either issue the aforementioned Bank Guarantee themselves.
Last year the Court of First Instance number 54 from Madrid sentenced a Spanish Bank (La Caixa) to refund deposits to the purchaser in a case where funds were credited in an ordinary or "…