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Mostrando entradas de marzo, 2011

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 "…