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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 1391.WON CASE in PROVINCIAL APPEAL COURT AGAINST SGR & BBVA FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER HERRADA DEL TOLLO S.L. AT THE SANTA ANA DEL MONTE DEVELOPMENT
24 May 2016

WON CASE in PROVINCIAL APPEAL COURT AGAINST SGR & BBVA FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER HERRADA DEL TOLLO S.L. AT THE SANTA ANA DEL MONTE DEVELOPMENT

We were extremely pleased to inform our client recently that we had won their case against SGR & BBVA in the Provincial Appeal Court.

The client paid their off-plan deposit to the developer’s account at BBVA.  The client did not receive an individual Guarantee for their off-plan deposit from the developer, Herrada del Tollo S.L., BBVA – the developers bank that received the off-plan deposit or from SGR, the Insurance Company that issued a General Guarantee to the developer.

In January 2015 the case was partially won in the First Instance Court. SGR & BBVA were jointly liable to refund 65% of the off-plan deposit.  The First Instance Judge only awarded this amount due to the fact that the buyers had signed the creditor’s agreement with the administrators of the insolvent developer in which they agreed to receive only 65% of their off-plan deposit after 5 years.  This agreement ultimately failed and nothing was paid from the developer’s insolvency proceedings. 

Under instructions from our client we submitted an Appeal to the Provincial Appeal Court of Alicante to say that we believed that signing the creditor’s agreement does not affect the inalienable rights granted to the buyers by LEY 57/1968.

SGR also filed an appeal against the First Instance Sentence.

The Provincial Appeal Court has upheld our Appeal, amended the First Instance Sentence and condemned BBVA & SGR to refund the full amount of the off-plan deposit plus interest at the legal rate from the date the money was paid to the developer’s account at BBVA.

The Appeal filed by SGR was dismissed.

Re: YOUR CASE AGAINST SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA (SGR) & BANCO BILBAO VIZCAYA ARGENTARIA S.A. (BBVA)
PO xxxx/2012

Please find attached Sentence number xxx/2016 from the Provincial Appeal Court of Alicante Section 9 in Elche.

I am very pleased to advise you that your Appeal has been upheld and the Appeal filed by SGR has been dismissed.

The final paragraph of the First Instance Sentence delivered on 21 January 2015 and notified on 28 January 2015 stated:



“Partially estimating the Lawsuit filed on behalf of xxxxx & xxxxx against SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA & BANCO BILBAO VIZCAYA ARGENTARIA S.A. I condemn in solidarity the defendants to pay to the plaintiffs the amount of xx,xxx Euro; with no pronouncement on the imposition of costs”


The Sentence was later rectified to read:


“Partially estimating the Lawsuit filed on behalf of xxxxx & xxxxx against SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA & BANCO BILBAO VIZCAYA ARGENTARIA S.A. I condemn in solidarity the defendants to pay to the plaintiffs the amount of xx,xxx Euro; with no pronouncement on the imposition of costs”

The final paragraph of the Provincial Appeal Court Sentence delivered on 21 March 2016 and notified on 23 May 2016 states:


“Dismissing the Appeal filed on behalf of Sociedad de Garantia Reciproca de la Comunidad Valenciana against the Sentence dated 21 January 2015 and the Auto dated 16 March 2015 issued by the Judge of the First Instance Court No. 3 Of Orihuela.  Without costs.

Upholding the Appeal filed by the legal representation of the plaintiff, xxxxx & xxxxx against the Sentence and Auto, we reverse that resolution, and instead condemn the defendants to pay the plaintiffs the amount of xx,xxx Euros plus legal interest from the date of payment to the accounts of BBVA.  Without costs”


So your Appeal has been upheld and the First Instance Sentence has been amended.  The Appeal filed by SGR has been dismissed.

The Appeal filed by BBVA was inadmissible due to late submission.

BBVA & SGR are now condemned to pay you xx,xxx€ plus legal interest from the date you paid to the developers account at BBVA.

There is no imposition of Costs for the First Instance procedure or the Appeal.  Therefore, each party will pay its own costs for both the First Instance & Appeal.

In the Sentence the Magistrates have followed the Jurisprudence already established by the Provincial Appeal Court of Alicante and the Supreme Court in relation to interest & costs.  They have also followed the Jurisprudence in relation to the fact that although the buyers agreed to receive lower amount in the insolvency agreement with the developer (which was never paid) this does not affect the full obligations of the Guarantor or the Bank receiving the off-plan funds according to LEY 57/1968.

SGR has 20 working days from the date of notification of the Sentence, which was 23 May 2016, to comply with the Sentence or to file a Cassation Appeal to the Supreme Court.

Although any appeal must be submitted strictly within the 20 working day deadline, we may not receive notification of an Appeal or of a firm sentence from the Court for a few weeks after the deadline due to the workload of the Court.

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



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Legal tip 1390.LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST CAIXABANK FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER INTERLAKEN 2003 S.L. AT THE CASARES DEL SOL DEVELOPMENT
24 May 2016

LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST CAIXABANK FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER INTERLAKEN 2003 S.L. AT THE CASARES DEL SOL DEVELOPMENT

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

The client paid their off-plan deposit according to the Purchase Contract via their conveyancing Lawyer to the developer’s bank account.  The client did not receive an individual Guarantee for their off-plan deposit from the developer, Interlaken 2003 S.L. or from the developer’s bank.  Caixabank (formerly Banca Civica) issued a General Guarantee for just over 5 million Euros in November 2003 for the Casares del Sol development.  Our claim was against that General Guarantee issued by Caixabank.


Re: YOUR CASE AGAINST CAIXABANK S.A.
PO xxx/2012

Please find attached Sentence number xx/2016 from the First Instance Court No.2 in Estepona.

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

The final paragraph of the First Instance Sentence delivered on 27 April 2016 and notified on 23 May 2016 states:



“Fully upholding the Lawsuit and condemn CAIXABANK S.A. to pay to xxxxx & xxxxx the amount of xx,xxx Euros.  Also to pay the interest as expressed in the fourth section of this sentence.

Expressly order the defendant to pay the costs”



So CAIXABANK S.A. is sentenced to refund the total amount of xx,xxx€ plus interest at the legal rate from 5 June 2012 which was the date the claim was sent to Caixabank.

The costs of the First Instance proceedings are also imposed on Caixabank.

Interesting statements from the Judge in the Sentence were:


“The plaintiff filed a Lawsuit asking for Caixabank S.A. to refund the amounts paid on account for the purchase of a property in the urbanization Casares del Sol.

Documentary evidence was provided to show that the plaintiffs paid the amount of xx,xxx€ for the purchase of the said housing.  The promotor, INTERLAKEN 2003 S.L. failed to deliver the property within the agreed period and have been condemned to refund the amount in a previous Lawsuit by the First Instance Court No. 4 in Estepona. Interlaken appealed and the appeal was dismissed by the Provincial Appeal Court of Malaga.

In this current Lawsuit the plaintiffs claim the amount was guaranteed by the Bank under a General Guarantee granted by Caixabank to Interlaken for the housing development in accordance with LEY 57/1968.

The defendant bank contests the claim on the grounds that the plaintiffs are not the holders of the general guarantee and therefore do not have the right to claim against it.  Furthermore it states that the developer, Interlaken, acknowledged that there was no individual guarantee for the plaintiffs.

 

The claim of the plaintiffs should be upheld based on the jurisprudence of SAP Sevilla 10 Oct 2013 and the repeated jurisprudence of the Provincial Appeal Court of Alicante.

Further jurisprudence on this matter is from the Supreme Court of 20 January 2015 in which it is clear that it is not necessary to have an individualized guarantee for the buyers, because the failure of the promotor and general guarantor entity cannot harm the consumer.  Failure to deliver the individual guarantee is a breach of the two entities that does not exclude their liability to the buyer.

In this case there was a line of guarantees (general guarantee) relating to the urbanization and under that premise the buyers signed the purchase contract.

According to the foregoing the guarantor entity is condemned to refund the amount paid by the buyers.

The sum subject to condemnation will accrue legal interest from the court date requirement of 5 June 2012 and will increase by 2 points from the date of this resolution.

You cannot award interest from the date of the original Lawsuit against Interlaken for contract cancellation because the defendant bank was not party to that action”


  
CAIXABANK has 20 working days from the date of notification of the Sentence, which was 23 May 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Malaga.

Although any appeal must be submitted strictly within the 20 working day deadline, we may not receive notification of an Appeal or of a firm sentence from the Court for a few weeks after the deadline due to the workload of the Court.

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

Casares, Malaga, South eastern Spain



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Legal tip 1389. COSTALUZ LAWYERS VICTORY AT THE SUPREME COURT FOR OFF PLAN BUYERS
23 May 2016

NEW SUPREME COURT SENTENCE WON BY COSTALUZ LAWYERS/DECASTRO

SPANISH OFF-PLAN PROPERTY PURCHASES - THE SUPREME COURT FIXES JURISPRUDENCE REGARDING BANKS LIABILITIES ACCORDING TO SPANISH LAW - LEY 57/1968
 

IN THE NEW SENTENCE THE SUPREME COURT STATES THAT CAJA CANARIAS (now BANKIA) OBSTINATELY DENIED REALITY REGARDING THE OFF-PLAN PAYMENTS MADE BY OUR CLIENTS

CAJA CANARIAS (now BANKIA) SENTENCED BY THE SUPREME COURT TO REFUND ALL OFF-PLAN AMOUNTS PAID BY OUR CLIENTS PLUS INTEREST & COSTS

OUR CLIENTS PURCHASED TWO OFF-PLAN PROPERTIES FROM THE DEVELOPER CONSTRUCCIONES LUAYRA S.L. AT THE ‘EL SOBRAO’ DEVELOPMENT IN TRIQUIVIJATE, FUERTEVENTURA

OFF-PLAN PURCHASE CONTRACT SIGNED IN 2006.  THE CASE WAS LOST IN THE FIRST INSTANCE COURT OF LAS PALMAS IN 2011 & IN THE PROVINCIAL APPEAL COURT OF LAS PALMAS IN 2013.  CASE NOW WON IN THE SUPREME COURT IN 2016.




BACKGROUND

Our clients paid their off-plan deposit to the developer’s account at CAJA CANARIAS (now BANKIA) in 2007.  The clients did not receive an individual Guarantee for their off-plan deposit from the developer, Construcciones Luayra S.L. or from CAJA CANARIAS, the Bank that received the off-plan deposit and also issued a construction mortgage loan to the developer.

The purchase contracts for the properties at the El Sobrao off-plan development in Fuerteventura were signed in November 2006 and the deposit was paid in February 2007 by bank transfer to the developer’s account, designated in the contracts, at Caja Canarias.

The developer failed to construct the properties according to the timescales allowed in the purchase contract.

In 2009 we filed a Lawsuit on behalf of our clients, against the developer for breach of contract.  In 2010 the First Instance Court of Puerto del Rosario issued a Sentence cancelling the purchase contracts and condemning the developer to return the off-plan deposit plus interest from the date of the court summons.  We enforced the Sentence, however due to its financial situation the developer did not pay.

In April 2011 we then filed a Lawsuit on behalf of our clients, against the developer’s Bank – Caja Canarias – asking for conviction of the bank according to its liability under Article 1.2 of LEY 57/1968.  The Bank opposed the Lawsuit on the grounds that it had not opened a Special Account for the developer, had not issued the individual guarantee to the buyers and just because it had given a mortgage loan to the developer did not make it liable for the off-plan deposits paid by the buyers.

In September 2011 the First Instance Court of Las Palmas dismissed the Lawsuit and absolved the Bank of all responsibility.  Costs were imposed on our client.  We filed an appeal and in September 2013 the Provincial Appeal Court of Las Palmas dismissed the Appeal, confirmed the First Instance Sentence and imposed costs of the appeal on our client.

In October 2013 we drafted and filed a Cassation Appeal to the Supreme Court which was accepted into procedure in October 2014. 

The Supreme Court has now upheld our Cassation Appeal, revoked the First Instance & Provincial Appeal Court sentences and condemned BANKIA to refund the off-plan deposit plus interest at the legal rate from the date in 2007 when the off-plan payments were paid to the developer’s account.  Costs of the First Instance Procedure are now imposed on the Bank. 

The Supreme Court has now fixed jurisprudential doctrine regarding Banks liabilities and obligations according to LEY 57/1968 as follows:

‘In house sales governed by Law 57/1968 credit institutions (banks) that receive income from buyers in the promotor’s account without requiring the opening of a special account and the corresponding guarantee or warranty, shall be liable to the buyer for the total amounts paid by buyers and deposited in the account or accounts the developer has opened in that entity’

In relation to the conduct of the Bank, the Supreme Court Sentence states:

The responsibility to the buyers for control over the accounts of the promoter legally corresponds to the credit institution where the promoter has one or multiple accounts.

In this case, the defendant obstinately denied the reality of the off-plan payments made by the buyers, who were not the only ones to pay off-plan amounts to the said account, until that reality was incontestably established.  Its legal duty to control the buyer’s funds was hardly debatable as it was precisely the entity that had granted the mortgage loan to the developer for the construction’

This is a significant achievement for our clients and for the Costaluz Lawyers/DeCastro legal teams.  We began writing and posting about Banks liabilities according to LEY 57/1968 in 2009 when there was very little case law to support our arguments.  In the period 2009 to 2012, not only did we have virtually no support for our legal arguments but we were at times criticised in the public domain by other Lawyers.

Now the Supreme Court has fixed doctrine regarding developer’s Banks liabilities according to LEY 57/1968 using virtually the same words that we have written repeatedly during the past 7 years.  The rest as they say is history and in the last 4 years we have won well over 150 cases for our clients against developer’s banks including the landmark Finca Parcs Action Group case against CAM Bank (Sabadell) in June 2012.

KEITH RULE, the Erin Brockovich of Spanish Off-Plan Property

 

STOPPING THE BANKS.  The Englishman has helped to stop forever the financial voracity that lead to speculation, illegalities and the real estate bubble in the buying and selling of off-plan property in Spain

 

CREATED JURISPRUDENCE & LAW REFORM.  He formed the FINCA PARCS ACTION GROUP in 2008 and initiated a legal action that created jurisprudence in the Supreme Court and led to the modification of the law governing the matter.

 

SPAIN IS NOW THE SAFEST EUROPEAN COUNTRY FOR OFF-PLAN PROPERTY PURCHASES.   He was a small business owner from Britain, who in 2008 saw what the Spanish Supreme Court has now in 2016 defined as jurisprudence.  He also led protests and petitions that may have contributed to the reform of the law that now makes Spain the world's safest country for off-plan property purchases.

 

HEALTH OF THE OFF-PLAN REAL ESTATE MARKET.  Clarity and determination resulted in the Banks having to comply with legal obligations & responsibilities to buyers, which is good for the balance and health of the housing market.

 

HIRED BY LAW FIRM.  His efforts resulted in him winning his landmark case against BANCO CAM (now Sabadell) for the Finca Parcs Action Group in 2012 and now being employed as a cornerstone of the legal team that he first instructed to fight his own case in 2009.

 

Erin Brockovich in Spain
 

Keith Rule now works helping hundreds of people who, like him, invested in Spanish off-plan property during the last real estate financial boom and saw failed promotions lead to the liquidation of property developers to whom they had paid their life savings.

In 2008, when he faced his own problem, it was clear to him that he had to take legal action against the developer’s bank that had accepted his off-plan deposit money and not just against the developer.
 


"In 2008 I remember initially saying to him that if you do not have a Bank Guarantee then you could not take legal action against the Bank," says Maria de Castro, director of the Costaluz Lawyers team.

Keith insisted and raised an impressive amount of evidence obtained with a degree of thoroughness worthy of the best law firms.
 

"Oh yes, we met Keith Rule personally in a hotel in Tamworth in 2010 where we were staying for some days working with another group of clients in a different case.  He arrived at the hotel with his family sized suitcase filled to the top with files.  We were listening for hours.  At least we had plenty of coffee!!" explain the Costaluz Lawyers team members with whom Keith now works.
 

The evidence and arguments demonstrated by Keith Rule in his 600 page dossier of evidence back in March 2010 won the hearts and minds of our legal team as it covered all angles and lit the spark for the fight against the banks that has culminated with the Supreme Court Sentence we recently won for another client.

He had interest and passion for serious study to find the legal arguments and jurisprudence for the matter that he saw clearly.
 

Since then, in all his visits to Algeciras, where our offices are located, Keith is accompanied by the same large suitcase, now full of other client’s documents.  As a joke, his colleagues usually say, "Keith and his suitcase," "The Terror of the banks", "English Iron Man"....
 

Change in Law and Jurisprudence


The jurisprudence that existed when Keith began his own fight back in 2008 was very low and certainly there was nothing from the Supreme Court.  

Since we won Keith’s Finca Parcs Action Group case in the summer of 2012, more and more Sentences from the Provincial Appeal Courts have emerged relating to the responsibilities of banks receiving money from purchasers of off-plan properties.  In December 2015 the initial arguments we first discussed and wrote about with Keith some 5 or 6 years ago were defined as jurisprudential doctrine by the Supreme Court.



On 9 March 2016, LEY 57/1968 jurisprudence became definitive following a 2nd Supreme Court ruling and several days later our own team of Costaluz Lawyers, De Castro & Keith Rule won a judgment the Supreme Court which applied this doctrine for the first time.

 

Along with the creation of this well orientated and consumer protective jurisprudence for off-plan property buyers, our work over the past 8 years has also led to the reform of the law itself, LEY 57/68, for clarity and protection of the consumer.

 

Spain: now the safest country in the world for buying and selling off-plan properties.
 

Keith’s colleagues believe that all the cases being won against Banks involve, "balance and security for the off-plan property market in Spain, good role of the Spanish Courts and portray the positive image of the Spanish legal and judicial system to international eyes".  All these are effects of the legal action that we now call the ‘Keith Rule Action’.
 

Before gaining a legal victory against CAM Bank for his 47 strong Finca Parcs Action Group in 2012, Keith had spent many years campaigning for off-plan buyers rights according the Spanish Law, LEY 57/1968.  His efforts began in 2008 with protests against CAM Bank which resulted in a 100 page complaint file being submitted to the bank’s head office in 2009.

In 2010 he launched the Finca Parcs Action Group website (www.fincaparcsactiongroup.com) and a Petition to the Spanish Government and Bank of Spain by way of his website Bank Guarantees in Spain (www.bankguaranteesinspain.com).  Keith also sent written complaints to the Valencian Savings Ombudsman and to the Bank of Spain.

In February 2011, Keith together with Jaime de Castro from the Costaluz Lawyers/DeCastro legal team completed the Finca Parcs Action Group Lawsuit and submitted it to the Court.  Later that year Keith was invited as part of a small delegation to meet with David Lidington MP (Minister for Europe) at the Foreign and Commonwealth Office in London to discuss the Finca Parcs issue and the wider Bank Guarantees situation for off-plan property buyers in Spain.

Meetings and protests at the Spanish Embassy in London also took place, including a meeting with the then Spanish Housing Minister, Beatriz Corredor.

Costaluz Lawyers & Keith’s Finca Parcs Action Group won their case in the First Instance Court in 2012 and the Bank lost its Appeal in 2013.  The Finca Parcs Sentence then became Case Law for other similar cases.

Over the years there has been much media interest in Keith’s work including numerous articles in the British & Spanish media, TV interviews & BBC Radio Interviews.

But the fight goes on…………  Currently, Costaluz Lawyers, the Law Firm for whom Keith has worked since 2013 is still acting for many buyers who, like him, paid off-plan deposits to developer’s bank accounts without receiving the corresponding guarantees.  There are many cases still in court and the Law Firm are continuing to gain new clients.  All this underlines the impact Keith's work has contributed to the Spanish legal system.

 

Milestones achieved over the years regarding LEY 57/1968:
 

- Banks must cover all the amounts paid, not only those covered by an Individual Guarantee
 

- The Guarantees do not expire until the First Occupation Licence is issued


- The existence of a line of guarantees or contract of insurance guarantee between the Bank and the promoter and proof of payments made by the purchaser as provided in the contract, gives rights against guarantors
 

- Despite having acceded to the agreement of bankruptcy of the developer, the rights against the guarantor or the receiving bank are not extinguished
 

- Even if the bank account is not named by the Bank as a ‘Special Account’ it will be treated as ‘Special’ according to the Law due to the source and destination of the funds deposited therein
 

- The obligation to secure the off-plan deposits is a fundamental requirement of the banks derived from the Law
 

- Actions against a developer’s bank expire after 15 years

- Interest is payable from the delivery of amounts and not from the filing of the Lawsuit


   Finca Parcs Action Group Leader, Keith Rule says:

“It was hugely significant when we beat CAM Bank in the first Finca Parcs Action Group Lawsuit in 2012 and even more so when the First Instance Sentence was then confirmed by the Provincial Appeal Court in April 2013.

We have now recently won second case for another group of Finca Parcs buyers against CAM Bank.

In 2008 & 2009 when I formed the Finca Parcs Action Group I was of the opinion that developer’s banks had liabilities and obligations according to Spanish Law, LEY 57/1968, regarding off-plan deposit funds, but one of my biggest hurdles back then was to find a Lawyer who also shared my view. 

Fortunately I found Costaluz Lawyers, who since winning the first Finca Parcs case have now won similar cases against developer’s banks for many other clients on failed off-plan property projects all over Spain.  Furthermore the Supreme Court has recently confirmed many important aspects regarding banks liabilities according to LEY 57/1968 and this has now been fixed as jurisprudence with the case recently won in the Supreme Court by Costaluz Lawyers”


   María de Castro, Director of Costaluz Lawyers comments:

“These victories against banks in favour of consumers are good for a balanced economy and for rebuilding trust in the Spanish legal and judicial system.  Keith’s efforts inspired us all and our recently won case in the Supreme Court is testament to the many years of hard work by the whole team.  He really is like a dog with a bone – he just never gives up”



  Jaime de Castro, Director - De Castro Gabinete Jurídico comments:

“Spain is unique among European countries in having an effective Law to safeguard buyer’s off-plan deposits.  The Spanish Courts have been applying this Law strictly and categorically and I am confident this will continue”

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Beach "The english man" (El Inglés), South of the Gran Canaria, Canary Islands, Spain

 

 

 

 

 

 

 


 

 

 

 

 



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Legal tip 1388. LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST CAJAMAR, CAJA RURAL and PROMOCIONES EUROHOUSE S.L. AT FORTUNA GOLF RESORT, LOS BALCONES DEL VALLE & APARTAMENTOS TURISTICOS PUEBLO LA SAL
11 May 2016

LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST CAJAMAR CAJA RURAL FOR 9 OF OUR CLIENTS WHO PURCHASED OFF-PLAN PROPERTIES FROM THE DEVELOPER PROMOCIONES EUROHOUSE S.L. AT FORTUNA GOLF RESORT, LOS BALCONES DEL VALLE & APARTAMENTOS TURISTICOS PUEBLO LA SAL 

We were extremely pleased to inform our clients recently that we had won their case against CAJAMAR CAJA RURAL in the Provincial Appeal Court.

The 9 clients paid part of their off-plan deposits to the developer’s account at CAJAMAR CAJA RURAL.  The clients did not receive individual Guarantees for their off-plan deposits from the developer, Promociones Eurohouse S.L. or from CAJAMAR CAJA RURAL, the Bank to which the part of their off-plan deposit subject to this action was paid.


Re: YOUR CASE AGAINST CAJAMAR CAJA RURAL SOCIEDAD COOPERATIVA DE CREDITO
PO: xxxx/2012

Please find attached Sentence number xxx/2016 from the Provincial Appeal Court of Alicante Section 9 based in Elche.

I am very pleased to advise you that the Appeal filed by Cajamar Caja Rural against the First Instance Sentence has been dismissed.  The First Instance Sentence has been confirmed.

7 of the 9 claimants in the group also filed a challenge against the First Instance Sentence in respect of the costs of the First Instance procedure not being imposed on Cajamar Caja Rural.

Unfortunately the costs challenge has been dismissed and the costs relating to that challenge have been imposed on the 7 claimants who made the challenge.

The final paragraph of the First Instance Sentence delivered on 16 April 2015 and notified on 28 April 2015 states:



“I estimate the Lawsuit filed on behalf of 9 CLAIMANTS against the financial institution CAJAMAR CAJA RURAL SOCIEDAD COOPERATIVA DE CREDITO, and must condemn the defendant to the repayment of the amount of xx,xxx€, plus legal interest from the date of payment to the developer’s account in CAJAMAR CAJA RURAL.  All without an express imposition of costs”



The final paragraphs of the Provincial Appeal Court Sentence delivered on 1 April 2016 and notified on 22 April 2016 state:


“We dismiss the Appeal filed by the legal representation of CAJAMAR CAJA RURAL SOCIEDAD COOPERATIVA DE CREDITO against the Sentence dated 16 April 2015, issued by the Judge of the First Instance Court No.3 of Orihuela in Ordinary Procedure xxxx/2012, which is confirmed, with the express imposition of costs of this Appeal on the appellant bank.

We dismiss the challenge by 7 CLAIMANTS against the same Sentence which is confirmed with the express imposition of costs of this challenge on the appellant plaintiffs”



So the Appeal filed by Cajamar Caja Rural has been dismissed and the First Instance Sentence has been confirmed.  Costs of the Appeal are imposed on Cajamar Caja Rural.

The challenge made by the 7 group members against the non-imposition of costs of the First Instance on the Bank has also been dismissed.  Costs of the challenge have been imposed on the 7 group members.

So the First Instance Sentence is confirmed in all aspects.

According to the First Instance Sentence, now confirmed, CAJAMAR CAJA RURAL SCC is liable to refund the total amount of xx,xxx€ plus legal interest from the date each amount was paid to the Promociones Eurohouse account at CAJAMAR CAJA RURAL until full payment to the Court. 

Costs of the First Instance procedure are not imposed on any one party.  Therefore each party will bear its own legal costs of the First Instance and any common costs will be halved.

In the Sentence the Magistrates state:

“Cajamar Caja Rural appealed claiming that the case law used to support the First Instance Sentence does not correspond to the factual circumstances of this case.  It says that for the 9 claimants in this case all purchase contracts stated that the off-plan deposits should be paid to BBVA.  In fact, of the amounts paid only around 10% was actually deposited into the developers account in Cajamar Caja Rural.  All those amounts were deposited on behalf of the buyers by the intermediary Ole Mediterráneo S.L.  The account opened by the constructor Eurohouse was a normal account, without control of the financial entity, not for the receipt of off-plan funds and with no obligations imposed by LEY 57/1968.  Cajamar Caja Rural states that Eurohouse did not have a Special Account opened in its branches.  Therefore, it did not know the source of the income into the Eurohouse account.

The plaintiffs also challenged the non-imposition of costs of the First Instance on the Bank, stating that they believed there are no serious questions of law on the matter of the Bank’s liability according to LEY 57/1968.

The question at issue regarding the Appeal filed by Cajamar Caja Rural focuses on the existence of an obligation of the defendant bank to ensure that the amounts paid by buyers into an account opened by the builder should be deposited in a special account that would ensure their return to the buyers in case of default by the developer.

This Court finds no reason to change the criterion of the Sentence of the First Instance Court.

Given the conflicting jurisprudence regarding LEY 57/1968, with regards to the Special Account, we must maintain the view of the First Instance Court which considers the doubts generated by the Law does not lead to imposition of costs of the First Instance on the defendant bank”



Cajamar Caja Rural SCC has 20 working days from the date of notification of the Sentence, which was 22 April 2016, to comply with the Sentence or to file a Cassation Appeal to the Supreme Court.

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

If the defendant fails to comply with the sentence then we will enforce the sentence against it.

Elche, Alicante, Valencian Commmunity, Eastern Spain



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Legal tip 1387.LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST SGR & BBVA FOR HERRADA DEL TOLLO S.L. BUYERS AT ‘RESIDENCIAL SANTA ANA DEL MONTE’
08 May 2016

LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST SGR & BBVA FOR HERRADA DEL TOLLO S.L. BUYERS AT ‘RESIDENCIAL SANTA ANA DEL MONTE’

We were pleased to inform our clients today that we had won their case against SGR & BBVA in the First Instance Court.  The clients did not receive individual Guarantees from the developer, Herrada del Tollo S.L. or from the Bank to which their off-plan deposit was paid, BBVA or from the General Guarantor of the development, SGR.

Re: YOUR CASE AGAINST SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA (SGR) & BANCO BILBAO VIZCAYA ARGENTARIA S.A. (BBVA)
PO XXX/2013

Please find attached the Sentence from the First Instance Court No.5 in Orihuela.

Your case against SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA & BANCO BILBAO VIZCAYA ARGENTARIA S.A. has been won.

The final paragraphs of the First Instance Sentence delivered on 27 April 2016 and notified on 2 May 2016 state:



“Fully upholding the Lawsuit filed on behalf of XXXXX, XXXXX, XXXXX, XXXXX against SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA & BANCO BILBAO VIZCAYA ARGENTARIA S.A. I condemn the defendants jointly & severally to pay the plaintiffs the amount of XXX,XXX Euro plus legal interest from the date of delivery or deposits in the current accounts of BBVA until the full repayment.

Costs are imposed on SGCV & BBVA S.A.”


So SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA & BANCO BILBAO VIZCAYA ARGENTARIA S.A. are jointly & severally liable to refund the total amount claimed which is XXX,XXX€ plus legal interest from the date each amount was paid to the developer’s bank account.

Legal costs of the First Instance procedure are imposed on SGR & BBVA.

SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA & BANCO BILBAO VIZCAYA ARGENTARIA S.A. have 20 working days from the date of notification of the Sentence, which was 2 May 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Alicante.

If an Appeal is filed by SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA or BANCO BILBAO VIZCAYA ARGENTARIA S.A. it will be necessary for us to file an Opposition to the Appeal on your behalf.

Guadalest, near Alicante, Valencia, eastern Spain



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Legal tip 1386.LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST BBVA FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER PROCOBAR S.A. AT OCHANDO GOLF/LO ESCOBAR IN SUCINA, MURCIA
06 May 2016

LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST BBVA FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER PROCOBAR S.A. AT OCHANDO GOLF/LO ESCOBAR IN SUCINA, MURCIA

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

The client paid their off-plan deposit to the developer’s account at BBVA.  The client did not receive an individual Guarantee for their off-plan deposit from the developer, Procobar S.A. or from BBVA, the Bank to which their off-plan deposit was paid and that bank that financed the development.


Re: YOUR CASE AGAINST BBVA S.A.
PO xxx/2014

Please find attached Sentence No. xxx/2016 from the First Instance Court No.2 in Murcia.

Your case against BBVA S.A. has been partially won.

The final paragraph of the First Instance Sentence delivered on 15 April 2016 and notified on 19 April 2016 states:



“Partially upholding the Lawsuit filed on behalf of xxxxx against BANCO BILBAO VIZCAYA ARGENTARIA S.A. I condemn the defendant bank to pay to the plaintiff the amount of xx,xxx Euros, plus the corresponding legal interest from 20 June 2006 until full payment, without imposition of costs”


So BBVA is sentenced to refund the amount of xx,xxx€ plus interest at the legal rate from the date you paid to the developer’s bank account, 20 June 2006, until complete repayment.

The Judge did not impose the costs of the legal proceedings on any party.  Therefore, each party will pay its own costs.

Interesting statements from the Judge in the Sentence were:

“The plaintiff signed a purchase contract dated 5 April 2006 with the promotor, Procobar S.A to buy a property at the Sierra Golf/Lo Escobar development in Sucina, Murcia.  The contract stipulated that the off-plan deposit was to be paid to the account opened at BBVA.  The plaintiff claimed the amount xx,xxx€.  Evidence was provided by BBVA to confirm the amount of xx,xxx€, however there was no record of the remaining amount of xx,xxx€ being paid to the BBVA account.

The defendant bank acknowledged that it financed the off-plan development in which the plaintiff had purchased a property.

The house was not delivered on time as agreed and the contract was terminated judicially, in a separate action, by a resolution dated 2 November 2012.

On 21 December 2015 the Supreme Court has fixed doctrine regarding the responsibility of the bank that receives the quantities delivered by buyers on account of off-plan housing.  It reiterates this doctrine in its Sentence of 9 March 2016.

BBVA is responsible for the amount of xx,xxx€ which appears in the account statements. BBVA cannot be responsible for the remaining amount of xx,xxx€ as the plaintiff has not provided evidence to show this amount being paid to the Procobar account in the defendant bank.

According to Article 394 of the Civil Code, as the Lawsuit has been partially upheld there will be no imposition of costs.  Each party will pay its own costs and any common costs will be halved”

"Cocedores" beach, Murcia, East of Spain

 



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Legal tip 1385. LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST CAIXABANK FOR TWO OF OUR CLIENTS WHO PURCHASED OFF-PLAN PROPERTIES FROM THE DEVELOPER OCHANDO S.A. AT OCHANDO GOLF
05 May 2016

LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST CAIXABANK FOR TWO OF OUR CLIENTS WHO PURCHASED OFF-PLAN PROPERTIES FROM THE DEVELOPER OCHANDO S.A. AT OCHANDO GOLF

We were extremely pleased to inform our clients recently that we had won their case against CAIXABANK (formerly Banco de Valencia) in the First Instance Court.

The clients paid their off-plan deposits to the developer’s account at CAIXABANK.  The clients did not receive individual Guarantees for their off-plan deposits from the developer, Ochando S.A. or from CAIXABANK, the Bank to which their off-plan deposit was paid and that bank that issued a General Guarantee to the developer.



Re: YOUR CASE AGAINST CAIXABANK S.A.
PO xxxx/2015

Please find attached the Sentence from the First Instance Court No.1 in Orihuela.

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

The final paragraph of the First Instance Sentence delivered on 26 April 2016 and notified on 26 April 2016 states:



“Upholding the Lawsuit filed on behalf of xxxxxx & xxxxxxx against CAIXABANK S.A. (formerly BANCO DE VALENCIA S.A.), I condemn the defendant bank to pay the total amount of xxx,xxx Euros, an amount that will be returned in the following proportion: Messrs xxxxxx the sum of xx,xxx Euros and Messrs xxxxxx the sum of xx,xxx Euros.  On such amounts accrue the legal interest from the date of payment to the developer or the depositing of the funds in the current account at CAIXABANK S.A., until full payment.  Interest will be increased by two points from the date of this resolution.

Without the express imposition of costs of these proceedings”


So CAIXABANK S.A. is sentenced to refund the total amount of xxx,xxx€ plus interest at the legal rate from the date you paid to the developer’s bank account until complete repayment.

The Judge did not impose the costs of the legal proceedings on any party.  Therefore, each party will pay its own costs.

Interesting statements from the Judge in the Sentence were:

“It is established that the entity Banco de Valencia (now Caixabank) signed with the promotor, Ochando S.A. a guarantee policy amounting to 6,800,000€, which was verified by public deed dated 1 August 2007, the purpose of which was none other than issuing guarantees to secure repayment of the amounts paid in advance by buyers of off-plan homes.

The main reason Caixabank opposed the Lawsuit was because it said that the buyers have no contractual relationship with the Bank as it had not issued individual guarantees to them.

Against this it should be noted that we are not facing a common endorsement under Article 1822 of the Civil Code, but an endorsement of a special nature regulated by Law 57/1968 that favours an interpretation in favour of the consumer.

Therefore, we should not forget that, although insurance companies & financial institutions are not party to the sales contracts, the truth is that they are not alien to their content or the performance of the obligations arising thereof, it follows therefore that they should confirm the existence of the guarantees established by LEY 57/1968.

It is worth noting that the Supreme Court has stated that the lack of an individual guarantee does not prevent the obligation to repay the amounts paid in advance by buyers of off-plan homes.

The buyers in this case are consumers and it has not been proven that they were speculative investors.

It is unknown if the General Guarantee was given to the buyers at the time of signing the purchase contract, thereby giving the legal appearance that guarantees for the amounts paid were established.  Also the bank has not proven that the existence of the General Guarantee was not mentioned to the buyers at the time of signing the contracts. These are facts that must be proved by the defendant bank to avoid liability on the basis of the first source of responsibility, that being the General Guarantee.

Now in this case the above facts are irrelevant as there is a double source of responsibility as it was also the entity in which the developer had opened a current account and into which the buyers paid their off-plan deposits.  This account despite being called a current account deserves to be called a special account and the defendant bank cannot escape liability on the basis of the second source of responsibility.

The buyers provided documentary evidence of their off-plan deposit being paid to the account opened at Banco de Valencia, and this is confirmed by the bank statements.

This account was the one specified by the developer as the account intended to receive off-plan funds from buyers, so as has been said, it should be regarded as a special account for the purpose of applying LEY 57/1968.

Moreover, the bank official at the trial acknowledged that it was an account funded essentially from the amounts paid by off-plan buyers and he acknowledged that the bank was aware of it and knew the activity undertaken by the developer.

Banco de Valencia, having opened an account to receive amounts paid by buyers, had a legal duty to ensure that those funds were guaranteed.  Having breached this duty its legal liability is generated.

In other words, the bank should not allow the opening of special accounts and accepting deposits into the accounts without first making sure that the promotor has assumed a legal obligation to ensure the return of the amounts paid on account by buyers, who otherwise cannot obtain reimbursement of the amounts paid.

Banks that accept these amounts paid by buyers of off-plan properties into accounts of the promotor, although not named as a special account, must be responsible for the total amounts paid by buyers into accounts opened by the developer in its branches.  In this case it has been proved that the account was designated for this purpose and it has also been established that the bank was aware of this fact and although it could not identify each amount for each specific buyer, knew that the income was from buyers of off-plan properties.

Even though the Lawsuit has been upheld in full, I plead the right not to impose costs on the defendant, as the Supreme Court Sentence of 21 December 2015 which clarifies the responsibility of banks according to LEY 57/1968, had not been issued at the time this Lawsuit was filed or when the bank submitted its defence.  Therefore I appreciate the contradictory jurisprudence existing at the time the Lawsuit was filed and the defence was submitted, so in accordance with Article 394 of the Civil Code, there is no imposition of costs”



CAIXABANK has 20 working days from the date of notification of the Sentence, which was 26 April 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Alicante.

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

If the defendant fails to comply with the sentence then we will enforce the sentence against it.

"Malvarrosa" beach, Valencia, eastern Spain



Like 2        Published at 18:24   Comments (3)


Legal tip 1384. FREE revision of mortgage deeds
04 May 2016

Send us your mortgage deeds so we can advise FOR FREE if you have already reached the debt level which will equal the value the Bank would repossess your house for.

This means you would have a good chance of success by giving the property back to the Bank, thereby clearing the full debt.

Contact us here

A nice house in Huelva, Costa de La Luz, South western Apain

 

 

 



Like 0        Published at 19:35   Comments (0)


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