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El blog de Maria

Your daily Spanish Law reporter. Have it with a cafe con leche. www.costaluzlawyers.es

Legal tip 1378. LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST BANKIA IN FORTUNA GOLF, APARTAMENTOS TURISTICOS FORTUNA GOLF RESORT AND APARTAMENTOS TURISTICOS PUEBLO LA SAL BY EUROHOUSE
Tuesday, April 19, 2016 @ 11:25 AM

LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST BANKIA FOR A GROUP OF OUR CLIENTS WHO PURCHASED OFF-PLAN PROPERTIES FROM THE DEVELOPER PROMOCIONES EUROHOUSE S.L. AT RESIDENCIAL FORTUNA GOLF RESORT, APARTAMENTOS TURISTICOS FORTUNA GOLF RESORT & APARTAMENTOS TURISTICOS PUEBLO LA SAL

We were extremely pleased to inform our clients recently that we had won their case against BANKIA in the First Instance Court.

The clients paid their off-plan deposits to the developer’s account at BANKIA.  The clients did not receive individual Guarantees for their off-plan deposits from the developer, Promociones Eurohouse S.L. or from BANKIA, the Bank to which their off-plan deposit was paid.


Re: YOUR CASE AGAINST BANKIA S.A.
PO: 1155/2012

Please find attached Sentence number 42/2016 from the First Instance Court No.5 in Orihuela.

Your case against BANKIA S.A. has been won.

The final paragraph of the First Instance Sentence delivered on 9 March 2016 and notified on 11 March 2016 states:



“I substantially uphold the Lawsuit filed on behalf of 12 buyers against the financial institution BANKIA S.A., and must condemn the defendant to the repayment of the amount paid on account and entered in the BANKIA account of the developer, amounting to 211,857.98€ and this according to the ratio contained in the second section of the Lawsuit, plus legal interest from the date of payment to the developer’s account in BANKIA.

As for costs they are imposed on the defendant BANKIA S.A.”



So BANKIA is liable to refund the total amount of 211,857.98€ plus legal interest from the date each amount was paid to the Promociones Eurohouse account at BANKIA until full payment to the Court.

Costs of the First Instance procedure are imposed on BANKIA.

The Sentence explains the reasons for the liability of BANKIA according to its obligations under LEY 57/1968 for the off-plan deposits paid to accounts opened by the developer, PROMOCIONES EUROHOUSE 2010 S.L. in BANKIA.

Particular points of interest stated by the Judge in the Sentence are:

“In its Lawsuit the plaintiffs claimed the amounts paid to the Promociones Eurohouse account at Bankia plus interest & costs.

Bankia opposed the Lawsuit claiming that at no time did it participate in the financing of the construction of the housing developments of Promociones Eurohouse, so no liability can be generated against it as a result of the breaches of the developer.  It says that it was absolutely unaware that the payments made into the account were from buyers of off-plan properties as it had no control over the housing developments that the developer was selling.  It states that it had no legal relationship with the developer derived the construction of the houses.

Furthermore Bankia states that it had no obligation to deliver guarantees according to LEY 57/1968 because this obligation is only that of the developer and never of the financial institution.

However, according to jurisprudence it must be concluded that the protection afforded by LEY 57/1968 results from the fact that income occurs in the accounts of the defendant entity regardless of whether or not it was funding the housing construction and regardless of whether the bank account details contained in the sales contract were those of the defendant bank or not”



BANKIA has 20 working days from the date of notification of the Sentence, which was 11 March 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Alicante.

If an Appeal is filed by BANKIA it will be necessary for us to file an Opposition to the Appeal on your behalf.

The beach "La Granadella", Jávea, Alicante, Eastern Spain



Like 1




10 Comments


john123 said:
Tuesday, April 19, 2016 @ 1:17 PM

Maria, well done on winning that first instance hearing. however, i can almost certainly guarantee the bank will appeal. this is the same situation i found myself in. at the first instance hearing i won - full refund of deposit [euros 63000] plus legal interest from the date the deposit was paid to the bank, plus all costs. the bank BBVA appealed and the appeal judge changed the legal costs to state that each party must pay their own costs. would it be possible and advisable to take the bank to the supreme court? if my solicitor can't do it i will let you know and we could discuss it. many thanks, regards, John


antifreeze said:
Tuesday, April 19, 2016 @ 1:19 PM

Congratulations Maria.

Were the apartments completed on time or not built yet?


mariadecastro said:
Tuesday, April 19, 2016 @ 1:25 PM

Appeal: Possibly now with the new and settled Case Law by the Supreme Court, banks will not appeal.

Apartments were not completed


john123 said:
Tuesday, April 19, 2016 @ 1:44 PM

Maria, thank you for the answer. has any legal precedent been set now so that if i did take BBVA to the supreme court to have my legal costs paid by the bank i would be successful? regards, John


mariadecastro said:
Tuesday, April 19, 2016 @ 1:52 PM

John:

A court decission by the Supreme Court dated 2009 established that rules on costs cannot be object of Appeal before the Supreme Court


M11Block said:
Tuesday, April 19, 2016 @ 1:56 PM

Maria, as this is now more than 20 days since the sentence does this mean the Banks are not appealing?


mariadecastro said:
Tuesday, April 19, 2016 @ 2:00 PM

Let me check on this and get back to you


mariadecastro said:
Tuesday, April 19, 2016 @ 2:45 PM

We don’t know yet.

Although the bank must submit any appeal strictly within the 20 working days, often due to the workload of the particular court, we are not informed of the appeal for a few weeks after the deadline………..


briando55 said:
Tuesday, April 19, 2016 @ 4:39 PM

Thanks Maria,

Please update us on the decision of the bank to appeal, or not, when you get the chance


briando55 said:
Wednesday, April 20, 2016 @ 9:33 AM

Hi Maria.

Just looking through your excellent results for cases won in the first instance courts.

I would like to know please, how many of the cases you advertise to be won in first instance do go on appeal courts and even beyond that where s happens.

An idea of the number of cases you have that actually stop at first instance will be really useful information please.




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