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Mostrando entradas de 2012

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

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CAIXABANK SENTENCED TO REFUND THE DEPOSIT PAID BY CASH TO TRAMPOLIN HILLS, DESPITE THE BANK GUARANTEE WAS JUST MADE FOR THE AMOUNT PAID INTO THE "SPECIAL ACCOUNT"
The banks guarantees made by La Caixa for some Trampolín Hills purchasers just covered the money paid into the "special account", so the deposits transferred into different accounts, or pay by cash, used not to be covered.
And that was exactly happened to our client: he got a bank guarantee for the € 74,700 credited into the "special account", although the whole deposit paid to Trampolin amounted € 111,000 (the remaining € 36,300 were paid by cash).
GM LEGAL EXPERTS did enforce the bank guarantee for the whole amount paid to the developer, and not only the one covered by the guarantee, under the understanding that the 57/1968 Act states that the purchaser must receive a bank guarantee for the whole amount paid to the builder, no matter the way of payment, and his rights cannot be waived. Therefore,…

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

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COURT FROM VALENCIA ENFORCES A TRAMPOLIN'S BANK GUARANTEE COPY FROM LA CAIXA THAT WAS CANCELLED BEFORE THE NOTARY
As you probably know from previous posts of mine, the rights recognized by the 57/68 Act cannot be waived, so any clause or agreement against the rules of Act could be claimed void and, consequently, wouldn't be enforceable against the purchaser.
And this reasoning has been used by the Valencia First Instance Court to reject the opposition lodged by Caixabank against the enforcement of a bank guarantee's copy that I did file on behalf a purchaser of Trampolin Hills Golf Resort.
In this specific case, the purchaser just held a copy of his bank guarantee because the original was given back to the developer and the Bank and was also cancelled before the Notary, after being promissed that Bank would release a new bank guarantee, which included an extended expiration date and the name of the other buyers stated on contract. But, as you probably imagine, the Bank never …

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

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ENFORCED BANK GUARANTEE FOR RESIDENCIAL ULYSS (RIVIERA COAST INVEST) DESPITE 57/68 ACT WASN'T MENTIONED AND EXPIRED BEFORE COMPLETION DATE AGREED ON PURCHASE CONTRACT
Madrid Magistrates' Courts has just sentenced Banco Popular to refund deposit to purchasers of Residential Ulyss (Riviera Cost Invest) whose bank guarantee did not mention 57/68 Act and expired before completion date agreed on contract. Court understands that 57/68 Act applies to bank guarantees whose aim is to protect purchasers' deposits even when the bank guarantee doesn't mention it, because agreements between banks and developers are not enforceable against purchasers, whose rights cannot be waived.
As 57/68 Act applies, expiration date shown on bank guarantee is sentenced void, given that it is against the law, which rules that bank guarantees just expire when the property has got the habitation certificate and is completed by the time agreed on purchase contract.
EJECUTADO AVAL BANCARIO DE LA PROMOCIÓ…

LEGAL NEWS / NOVEDADES LEGALES

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REVISABLE LIFE IMPRISONMENT APPROVED

Approved today the life imprisonment (revisable) for some offenses: assasination, genocide, crimes against humanity, aggravated murder and terrorism.

For the aggravated murder, it would be possible to sentece life imprisonment if victims are children under 16 years, or specially vulnerable, the murder is consequence of a sexual assault, or committed by a criminar organization.

Misdemeanor will receive just "administrative sanctions".
APROBADA LA PRISIÓN PERMANENTE REVISABLE

Aprobada la cadena perpetúa (revisable eso sí), para los delitos de magnicidio, genocidio, delitos de lesa humanidad, asesinato agravado y delito terrorista.

En el caso de asesinato agravado, se podrá aplicar la prisión permanente revisab
le si se trata de víctimas menores de 16 años o especialmente vulnerables, asesinato que suceda a un delito contra la libertad sexual, asesinato múltiple y el cometido por miembros de una organización criminal.

Se suprimen además las faltas d…

NEWS ABOUT JUDICIAL DECISSIONS / NOVEDADES JURISPRUDENCIALES

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COURTS ARE RULING  THE ANNULMENT OF THE PREFERENCE SHARES AGREEMENTS
Over the last months different District Courts have ruled that preference shares contracts are void upon condition that the right information was not given to the consumers.
Given that preference shares agreements are complex investment products, Courts declare that Banks must make sure that they are offering them to the right person, and the client has a full understanding of the conditions and risk being assumed by the signature of the agreement.
Therefore, the Bank must prove that the test required by law were made to clients to make sure that they were offering the proper product, and also the right information about the investment was given. The annulment of the preference shares contract could be claimed otherwise.
Obviously, these are excelent news for people whose savings were caught in these investment products. Spanish Government has been in fact forced to admit that banks committed serios abuses by offering th…

NEWS ABOUT JUDICIAL DECISSIONS / NOVEDADES JURISPRUDENCIALES

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THE THREE BANKS WHO SIGNED A GENERIC BANK GUARANTEE WITH HERRADA DEL TOLLO, JOINTLY SENTENCED TO REFUND DEPOSITS TO SEVERAL SANTA ANA DEL MONTE'S PURCHASERS

The First Instance Court nº 1 from Alicante has sentenced the three Banks who signed the Generic Guarantee Agreement with Herrada del Tollo (SGR, BBVA & Pastor) to refund jointly to several Santa Ana’s purchasers the deposits they did pay to the developer.
The Court understands that generic bank guarantee agreements are enforceable, no matter into which account deposits were credited, so banks are liable for deposits paid even when purchaser is not holder of an individual bank guarantee.
The plaintiffs who had won the case are purchasers of Santa Ana who did cancel their purchase contracst and vote against the Creditor's Agreement.
For further queries, please do not hesitate to contact me on guadalupe@gmlegalexperts.com.
LOS TRES BANCOS QUE FIRMARON LÍNEAS DE AVALES CON HERRADA DEL TOLLO, SENTENCIADOS A PAGAR SOLIDARIAMENTE…

NEWS ABOUT JUDICIAL DECISSIONS / NOVEDADES JURISPRUDENCIALES

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COURT EXPANDS SCOPE OF BUILDING COMPANIES' MANAGING DIRECTORS PERSONAL LIABILITY TO THE LACK OF BANK GUARANTEES' DELIVERY 
The Mercantile Court from Barcelona has sentenced the personal liability three directors of a development company that did not built properties by the time agreed on contract for the lack of Bank Guarantees' delivery. Therefore the purchaser can enforce the sentece against their personal assets if his deposit is not refunded. Court understands that the lack of delivery of bank guarantees to purchasers is an unlawfull action that causes a serious loss to the purchasers, so the managing directors' liability can be claimed.
Further details about the case on the following link: Expansion newspaper
CONDENADOS LOS ADMINISTRADORES DE UNA PROMOTORA POR NO ENTREGAR AVALES A LOS COMPRADORES
El Juzgado de lo Mercantil número 1 de Barcelona ha condenado a tres administradores sociales de una sociedad promotora, que no entregó la vivienda en los plazos contractualme…

NEWS ABOUT JUDICIAL DECISSIONS / NOVEDADES JURISPRUDENCIALES

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CAM BANK, SENTENCED TO REFUND 1,5 MILLIONS OF EUROS TO PURCHASERS OF "LAS HIGUERICAS" WHO DID NOT HOLD AN INDIVIDUAL BANK GUARANTEE
The First Instance Court nº 2 from Hellin has sentenced CAM Bank to refund 1.5 millions of Euros to purchasers of the development "Finca Parcs, Las Higuericas", despite the builder failured to provide individual bank guarantees to those purchasers. The judge considers that the documentary evidences prove that CAM Bank had knowledge that the money credited into the builder's "ordinaries" accounts came from purchasers and, despite this fact, did not fullfill its legal obligations (article 1.2, 57/68 Act).
LA CAM, SENTENCIADA A PAGAR 1,5 MILLONES DE EUROS A COMPRADOR DE " LAS HIGUERICAS" QUE NO DISPONÍAN DE AVAL BANCARIO
El Juzgado de Primera Instancia nº 2 de Hellin ha sentenciado a la CAM a pagar 1,5 millones de euros a comprador de la promoción "Finca Parcs, Las Higuericas", a pesar de que el promotor inc…

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

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WE DID IT AGAIN! ANOTHER BANK GUARANTEE FOR "EL PINET DEVELOPMENT", GRUPO SAN JOSE, SUCCESSFULLY ENFORCED


It seems that we are having a strake of good luck for the enforcement of bank guarantees. BBVA has admitted, again, a claim that we filed just a few weeks ago. The Bank has met the payment of the principal, plus legal interest and defense cost.

LO HICIMOS DE NUEVO !  EJECUTADO OTRO AVAL BANCARIO DEL BBVA PARA LA PROMOCIÓN EL PINET (GRUPO SAN JOSE)

Parece que estamos en racha con la ejecución de avales bancarios. El BBVA se ha allanado de nuevo a nuestra última demanda de ejecución de aval bancario de la promoción El Pinet presentada recientemente y, en consecuencia, ha pagado principal, intereses y costas.

NEWS ABOUT JUDICIAL DECISSIONS / NOVEDADES JURISPRUDENCIALES

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SPANISH HIGH COURT CONFIRMS THAT THE FAILURE TO PROVIDE THE 57/68 BANK GUARANTEES IS A FUNDAMENTAL BREACH OF CONTRACT BY THE DEVELOPER
Despite this was the criteria of the majority of the Magistrates' Courts, the High Court has finally cleared up all kinds of queries. The failure to deliver bank guarantees to the purchasers under the provisions of the 57/68 Act is a builder's fundamental breach of contract, so purchasers are entitled to claim for the cancellation as long as the gurantees are not provided (RJ 2012\433).
EL TRIBUNAL SUPREMO CONFIRMA QUE LA FALTA DE ENTREGA DE LAS GARANTIAS BANCARIAS A LAS QUE SE REFIERE LA LEY 57/1968 ES UN INCUMPLIMIENTO ESENCIAL DEL CONTRATO
A pesar de que este era el criterio fundamental acogido por la mayoría de Audiencias Provinciales, el Tribunal Supremo ha despejado cualquier tipo de duda, declarando que la no entrega de las garantías previstas en la Ley 57/1968 supone un incumplimiento esencial del contrato por la promotora - vendedora que …

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

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ANOTHER BANK GUARANTEE FOR EL PINER (SAN JOSE GROUP) SUCCESSFULLY ENFORCED


BBVA just admitted this morning a claim filed a few weeks ago. Consecuently, the Bank has met the payment of the principal, plus legal interest and defense cost.


EJECUTADO OTRO AVAL BANCARIO DEL BBVA PARA LA PROMOCIÓN EL PINET (GRUPO SAN JOSE)


El BBVA se ha allanado a otra demanda de ejecución de aval bancario de la promoción El Pinet presentada recientemente y, en consecuencia, ha pagado principal, intereses y costas.



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

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BBVA BANK GUARANTEES FOR EL PINET DEVELOPMENT (SAN JOSE GROUP) SUCCESSFULLY ENFORCED
BBVA has just admitted the claims enforcing two bank guarantees for El Pinet, and, therefore, has met the payment of the principal, plus legal interest and defense cost.
Consequently, the bank guarantees have been enforced at no cost to our customers, who have recovered the deposit paid plus the legal interest.
EJECUTADOS AVALES BANCARIOS DEL BBVA PARA LA PROMOCIÓN EL PINET (GRUPO SAN JOSE)
El BBVA se ha allanado a las demandas de ejecución de dos avales bancarios de la promoción El Pinet y, en consecuencia, ha pagado principal, intereses y costas.
Consecuentemente, los avales se han ejecutado sin coste alguno para nuestros clientes, que han recuperado el depósito entregado más el interés legal.

NEWS ABOUT JUDICIAL DECISSIONS / NOVEDADES JURISPRUDENCIALES

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MAGISTRATES' COURT FROM VALENCIA SENTENCES THAT GENERIC BANK GUARANTEES CAN BE ENFORCED BY PURCHASERS AND BANK MUST REFUND DEPOSITS PLUS LEGAL INTEREST.
The Magistrates' Court from Valencia, following the case-law trend, has sentenced that Generic Bank Guarantees could be enforced by purchasers whose properties are not delivered by the time agreed on the purchase contract and, therefore, the Bank refund deposit plus legal interest. The Court confirms that the lack of an individual bank guarantee cannot prevent the buyer to enforce the generic guarantee agreement against the bank for recovering the deposit plus legal interest, as long as the 57/68 Act states that the rights of beneficiaries cannot be waived and the failure by the builder to perform the individual bank guarantees' delivery is not enforceable against purchasers.
LA AUDIENCIA PROVINCIAL DE VALENCIA CONDENA A UNA ENTIDAD DE CRÉDITO A DEVOLVER EL DEPÓSITO MÁS EL INTERÉS LEGAL CORRESPONDIENTE A UN COMPRADOR EN BASE…

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

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PURCHASERS OF GARDENS OF MANILVA (MANILVA COSTA SA) GET THEIR CONTRACT CANCELLED AND THE DEPOSIT PAID REGISTERED IN THE BUILDER'S BANKRUPTCY PROCEEDING DESPITE MONEY WAS PAID TO THE AGENT, OCEAN VIEW PROPERTIES, AND THE PURCHASE CONTRACT WAS NOT SIGNED BY THE BUILDER
The Mercantil court from Seville has sentenced the cancellation of a purchase contract for Gardens of Manilva phase I, together with the registration of the deposit paid as credit in the Bankruptcy proceeding, despite the money was paid to the agent, Ocean View Properties, and purchase contract wasn't signed by the developer, Manilva Costa S.A. (who originally refused to have received the deposit).
The claim filed by our Firm to show the contractual relationship with the builder, the recognition of the payment and, consequently, to get the purchase contract cancelled and the deposit registered as credit has been finally admited by the defendants (Manilva Costa and the Trustees in Bankruptcy), so our clients are read…

GM LEGAL EXPERTS NEWS / NOTICIAS GM LEGAL EXPERTS

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CLASS ACTION AGAINST CAM BANK TO RECOVER DEPOSITS FOR ROYAL DREAMS OF ALBUDEITE (SOLERA EL TRAMPOLIN)  Finally several purchasers of Royal Dreams of Albudeite have decided bringing legal actions against Cam Bank to recover their deposits, under the provisions of the 57/68 Act. After filing a Preliminary Enquiry, our Law Firm has found several documentary evidences regarding Cam's knowledge about from where the money credited into Solera's account came from (purchasers). Despite their knowledge, CAM did allow Solera to withdraw the money without requesting the bank guarantees or making sure that funds were used for building purposes (article 1, 57/68 AcT). If you want to get further information about this class action, please do not hesitate to contact us.
DEMANDA COLECTIVA CONTRA LA CAM PARA RECUPERAR LAS CANTIDADES ENTREGADAS PARA LA PROMOCION ROYAL DREAMS DE ALBUDEITE (SOLERA EL TRAMPOLIN) Finalmente varios compradores de la promoción Royal Dreams de Albudeite han decidido emp…

NEW CASE WON BY GM LEGAL EXPERTS / NUEVO CASO GANADO POR GM LEGAL EXPERTS

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THE REGIONAL ECONOMIC AND ADMINISTRATIVE COURT OF VALENCIA INVALIDATES SEVERAL DECISIONS FROM THE TAX OFFICE THAT REVIEWED THE VALUES OF PROPERTIES AND PLOTS DECLARED BY TAXPAYERS BECAUSE ARE NOT SUPPORTED BY REAL ESTATE APPRAISALS MADE BY EXPERTS AFTER A PERSONAL VISIT TO THE PROPERTIES.
New rulings from the Regional Economic and Administrative Court of Valencia which invalidate several decisions from the Tax Office that reviewed the values of properties and plots declared by taxpayers on the Titled Deed and requested the payment of further taxes. The Court understands that the review cannot be based on standard and complicated calculations and parameters that don’t take into account the real situation of the real estate properties. For the Regional Economic and Administrative Court, the review by the Tax Office of the declared values must be supported by an expert report or a Real Estate Appraisal made after a personal visit of the expert to the properties; which in this particular c…

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

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SPANISH TAX OFFICE MUST REFUND THE VAT PAID FOR A PROPERTY USED FOR BUSINESS PURPOSES BY THE PURCHASER  
The Valencia Economic-Administrative Tribunal has sentenced the Tax Office to refund the VAT paid for the purchase of a property which was being used for business purposes (rental), because of the expiry of the inspection process. Although the Tax Office provided documents to evidence that the prescription period was interrupted, GM LEGAL EXPERTS legal team revealed that the date on those documents was false, through the "Secure Code of Verification" printed on the footer of every document released by the Tax Office.

HACIENDA DEBE PRACTICAR LA DEVOLUCIÓN DEL IVA DEL PRECIO DE UNA VIVIENDA AFECTA POR EL COMPRADOR A UNA ACTIVIDAD ECONÓMICA DE ALQUILER
El Tribunal Económico Administrativo Regional de Valencia ha declarado la anulación del procedimiento de comprobación limitada en el que se resolvió no devolver el IVA del precio de una vivienda afecta a una actividad empresaria …

NEWS ABOUT JUDICIAL DECISSIONS / NOVEDADES JURISPRUDENCIALES

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SGR APPEAL REJECTED. BANK MUST REFUND TO A PURCHASER OF SANTA ANA DEL MONTE WHO DID NOT HOLD AN INDIVIDUAL BANK GUARANTEE THE DEPOSIT PLUS LEGAL INTEREST UNDER THE PROVISIONS OF A GENERIC GUARANTEE
Today there are excellent news for the Santa Ana purchasers' who are looking for the refund of their deposits through actions against the Banks under the provisions of the generic guarantee and the 57/68 Act.
The Magistrate's Court from Alicante has rejected the appeal filed by the SGR against a sentence from the First Instance Court nº 6 from Alicante, and has confirmed that the lack of an individual bank guarantee doesn't prevent the purchaser to get the deposit back from the bank under the provisions of the generic guarantee. So SGR has been sentenced to refund the deposit, plus legal interest and the defense cost for the whole procedure. This sentence is not definitive yet, because it can be appeal at the High Court (Tribunal Supremo) by SGR, but it is a big, huge step for the…

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

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COPY OF A BANK GUARANTEE FOR TRAMPOLIN HILLS SUCCESSFULLY ENFORCED
The First Instance Court nº 1 from Valencia has sentenced the Bank to refund the principal plus the legal interest covered by an individual Bank Guarantee despite the purchaser didn't hold the original. The Court interpretates that the bank guarantee copy was authenticated by the Bank's representatives who answered the legal letter sent by GM through the Notary before submmiting the claim, because he did not deny the authenticity of the guarantee, and just stated that it was cancelled. Because of the authentication, the bank guarantee's copy is enforceable.
EJECUTADA LA COPIA DE UN AVAL BANCARIO DE LA PROMOCIÓN TRAMPOLIN HILLS
El juzgado de Primera Instancia nº 1 de Valencia ha despachado ejecución contra el Banco a fin de que pague el principal y los intereses garantizados en aval bancario a pesar de que el comprador no poseía el original. El Juzgado entiende que la copia del aval fue adverada por el represen…