A question for the lawyers

[Anonymous]

We have a bank Guarantee which we are intending to use to get our money refunded (Sept 2006 )for a no build apartment which should have been completed in July 2005.

We have been advised from 2 different sources via this forum(IE. members via their lawyers) that if we follow the route of getting a Requerimiento Notarial, to declare our purchase contract “null & void”, the bank could refuse to pay us as we would have rejected the purchase contract.

Drakan, you said that Banks will try to use any excuse not to pay out, which I find unbelievable! Does anybody adhere to the Law in Spain? We have asked our lawyers time & again, to get IN WRITING from the Bank in Madrid, precisely what documents we need when we present the Guarantee. This has not been done by the bank. Verbally, they say we need a RN.

You say a BG is there if the builders go into bankruptcy. In our case , we should and have demanded our money back NOW. We have, several times! It has been refused. It is diabolical that we should have to go to the expense and stress of going through the courts to sue. What you tell us should be the rule/law is one thing, but the Spanish do not seem to honour that law. How are we to deal with all of this.?

I would really appreciate you lawyers viewpoint on this. TIA

Claire.

This is really taking it’s toll on me! 😥

[Anonymous]

Oh, I see Sofia has already(more eloquently 🙂 !!) posed the same question in another post.

PLEASE can someone answer us !!!!!

[Anonymous]

Claire,

I’m afraid more information is needed to give any kind of answer

What kind of BG do you have. It’s a simple ‘Aval Bancario’?, An ‘Aval Bancario Solidario’? when the builders/developers may be liable jointly and severally with other people or even the bank, An ‘Aval Bancario a primer requerimiento’? when the bank cannot refuse to pay, Wich are the conditions to ‘execute’ your BG?

In wich condition is the building?. Have they even started?. Did they start and now works are stopped?. Do you know the economic situation of the builder/developer?

And more importat, what does your lawyer tell you?

[Anonymous]

Hello Cesar,

Thank you for your reply. I can only tell you at this moment that at the bottom of the Avala it says Registro Especial de Avales and then it gives a number.
I have spoken to Sofia and she will be able to give you the information that you ask for when she gets home later.

[Anonymous]

Claire,

Check also if your Aval says sometihng like this:
—
(Name of the Bank) situado (Address)…………., Y EN SU NOMBRE Y REPRESENTACIÓN D./Dª…………………… CON PODERES SUFICIENTES PARA ESTE ACTO

AVALA

Solidariamente, a primer requerimiento y con renuncia a los beneficios de previa excusión a …………………, con domicilio en Madrid, …………………., provisto de N.I.E. núm.:…………….., ante …………., con …………………., hasta un importe máximo de …………………, para garantizar …….(*)

Este Aval tiene un plazo de vigencia que finaliza el día ……………………..

Llegado el día de vencimiento de este aval, el día …………………., si (Name of the Bank), no ha sido requerida de modo fehaciente de pago de cantidad alguna, caducará y quedará extinguido el presente compromiso, y el banco liberado de todas las responsabilidades contraídas en virtud de este aval.

El presente Aval ha sido inscrito en la misma fecha en la Registro Especial de Avales con el número ……………….. de esta sucursal.

Las partes acuerdan de forma expresa e irrevocable someterse al fuero de los Juzgados y Tribunales de España.

En Madrid a … de ……… de …………
—

(*) If so, whatever it says after ‘para garantizar’ could be one of the main keys in this issue

[Anonymous]

Hi Cesar,

I can’t say any of that terminology looks familiar! We have had the BG authenticated by 3 lawyers!!

Our apartment was never built, nor will it ever be built. It should have been completed by July 2005. Our contract expired in October 2005.

[Anonymous]

Cesar – have sent copy of our BG to your website.

[Anonymous]

Ok Sofia, I’ll try to give you some answer to your private Email ASAP

[Author]

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