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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 1234.NEW! Case Won against Reserva de Marbella and BANCO POPULAR
27 November 2014 @ 12:11

BANK ACTION WON AGAINST BANCO POPULAR & LA RESERVA DE MARBELLA

Notification sent today to one of our clients informing them that in their case the developer and bank have been made jointly liable for the refund of their off-plan deposit, according to the Banks obligations under Article 1.2 of LEY 57/1968.


Re: YOUR CASE AGAINST LA RESERVA DE MARBELLA S.A. & BANCO POPULAR ESPAÑOL S.A.

 

Please find attached Sentence number xxxxx/2014 from the First Instance Court No.7 in Málaga.

 

Your case against LA RESERVA DE MARBELLA S.A. & BANCO POPULAR ESPAÑOL S.A. has been won.

 

The final paragraphs of the First Instance Sentence delivered on 21 November 2014 state: 


 

“I estimate the Lawsuit filed on behalf of Mr XXXXXX XXXXX  & Mrs XXXX XXXXXX against BANCO POPULAR & LA RESERVA DE MARBELLA:

 

- Declare terminated the Purchase Contract dated 4 February 2004 signed between the plaintiffs and the defendant due to serious breaches of contract by the defendant.

 

- In solidarity condemn LA RESERVA DE MARBELLA S.A. & BANCO POPULAR ESPAÑOL S.A. to return to the plaintiffs the amounts paid to the developer through the existing bank account in such financial institution, stating the legal responsibility of the bank for those funds according to Article 1.2 of Spanish Law, LEY 57/1968, and therefore payment of the outstanding amount of XXX,XXX Euros plus legal interest from the date the amounts were paid until complete repayment and also condemn the defendants to pay the legal costs of this procedure”

  

So the Purchase Contract is cancelled and LA RESERVA DE MARBELLA & BANCO POPULAR ESPAÑOL are sentenced jointly to refund the amount of XXX,XXX€ plus legal interest from the date you paid your off-plan payments to the developer.

 

Even though you did not receive from the Developer an individual Guarantee for your off-plan deposit, Banco Popular is sentenced jointly with the developer according to its obligations under Article 1.2 of Spanish Law, LEY 57/1968.  According to LEY 57/1968 the Bank receiving the off-plan deposit must ‘under its responsibility’ issue or verify the existence of the corresponding guarantee.

 

The Bank failed in its responsibility and therefore once the Purchase Contract is declared cancelled for serious breaches by the Developer your inalienable rights granted by the protective nature of LEY 57/1968 are activated.

 

Your costs of the First Instance Proceedings are imposed on the defendants.

La Reserva de Marbella, Marbella, Málaga, South eastern Spain



Like 2




20 Comments


grumpy121 said:
28 November 2014 @ 10:24

This has to be good news but will there be an appeal

There must be hundreds of cases before the courts...
How can you find out how many are being won and lost.
Also how many appeals are the banks winning.

It's great to hear about cases be won but we never hear about
cases that are lost.
How long are appeals taking and are any going to
Supreme Court.


mariadecastro said:
28 November 2014 @ 12:22

Grumpy:
Almost all cases being won at the First Instance level by us are then appealed by the Bank. There is still no definitive doctrine by the Supreme Court on certain crucial aspects of these fights and that is the reason Banks try to win at the Appeal.

Need to add that Appeals are generally in favour of buyers too.

Kindest,

María


antifreeze said:
28 November 2014 @ 18:43

Good news Maria. Congratulations.

At what stage was the contract cancelled by the buyers? How does the timing of cancellation effect buyers rights under Ley 57/68?

In this legal action won by you, were the properties completed of not, as this would effect the way a court would rule in a legal action?


ads said:
28 November 2014 @ 19:12

Maria,
Well done, but what I fail to comprehend here is when the judge makes the following observation "The Bank failed in its responsibility and therefore once the Purchase Contract is declared cancelled for serious breaches by the Developer your inalienable rights granted by the protective nature of LEY 57/1968 are activated. " is how can any Bank thereafter be permitted to appeal INALIENABLE rights as defined within an existing law?
It makes a complete mockery of the principal of legal certainty and the rule of law.
Is this not identified to the judge as an imperative part of the legal argument during first instance litigation?


ads said:
29 November 2014 @ 00:17

Surely once cancellation for serious breach has been proven and inalienable rights activated then Banks should have no rights to appeal?
Why then are law firms not arguing this legal point from the outset of litigation and bringing this principal of legal certainty associated with inalienable rights to the attention of all judges so that following cancellation of contract speedy executive judicial decisions can be enacted with rightful return of monies, etc.?
To prolong a case against inalienable rights in this fashion defies legal logic does it not? All it does is exacerbate an already overloaded justice system and call into question adherence to the rule of law in Spain.


antifreeze said:
29 November 2014 @ 01:32

It seems that the legal system is generating more work at cost to buyers who have already suffered; laws that are not applied in the first instance. If courts actually followed Spanish laws that are there, then a lot of these cases would be unnecessary? i.e. no BGs, unfair contracts, unlawful extension of contracts under Ley 57/68, INALIENABLE RIGHTS. These exist but only if a court says so....but can be over turned - which does not render the any law as applicable??



ads said:
01 December 2014 @ 19:12

Maria,
This is a really critical point which I would be grateful if you could clarify.
Why are judges allowing Banks to appeal once breach has been proven and contracts cancelled?
Doesn't this contravene the principal of legal certainty by allowing a legal challenge to purchasers' inalienable rights?
Perhaps we have misunderstood?
Are your litigators able to prevent this judicial practice of allowing Banks to appeal once contracts have been cancelled, by making the legal link between the requirement for recognition of inalienable rights according to existing law and adherence to the principal of legal certainty?


mariadecastro said:
02 December 2014 @ 12:28

Ads:
Appeal rights are part of the Fundamental Right to Effective Judicial Protection
Cheers
María


antifreeze said:
02 December 2014 @ 13:18

Appeals surely are if cases are not clear in law - if there is legislation, how can they appeal something that is already law, and the banks/developers have broken set laws?

Where does it stop if laws have not been adhered to in the first instance? It will stay in a vacuum with no one sure of what to do for the best.

Surely, Maria, if the law has been broken and proved - then how can such appeals just go on?


mariadecastro said:
02 December 2014 @ 13:46

Antifreeze:

Appeal ask for a revision of the law Interpretation that, as judges as human beings, could be wrong.



antifreeze said:
02 December 2014 @ 15:00

Of course - all legal decisions can be mis-interpreted but if there is a law set to adhere to, how can that be 'interpreted' differently?

It is law OR...there is no law to set the grounds for the judgment which would then require an appeal?

It is very confusing - perhaps with more cases, there will be a precedent set for accepting the laws that exist? Hopefully.


ads said:
02 December 2014 @ 23:40

According to http://en.wikipedia.org/wiki/Legitimate_expectation and http://en.wikipedia.org/wiki/Legal_certainty consider the following:

The doctrine of legitimate expectation, which has its roots in the principles of legal certainty and good faith, is also a central element of the general principle of legal certainty in European Union law.[5]
The legitimate expectation doctrine holds that "those who act in good faith on the basis of law as it is, or seems to be, should not be frustrated in their expectations".[4] This means that a European Union institution, once it has induced a party to take a particular course of action, must not renege on its earlier position if doing so would cause that party to suffer loss.
The general principle of legal certainty is particularly stringently applied when European Union law imposes financial burdens on private parties.[3]

The concept of legitimate expectation applies the principles of fairness and reasonableness to the situation where a person has an expectation or interest in a public body retaining a long-standing practice or keeping a promise.

The concept of legal certainty is recognised by the European Court of Human Rights.[1]

The general principle also requires that sufficient information must be made public to enable parties to know what the law is AND COMPLY WITH IT.

Given all of the above, and with particular reference to European Union Law being stringently applied, do you not conclude, Maria, that offplan purchasers’ expectations to have their deposited monies securely protected and returned IN THE EVENT OF PROVEN DEVELOPER BREACH WITH CONTRACTS CANCELLED, and having been “induced” by guarantors mentioned within purchase contracts (including generic guarantors) and supported by existing law (i.e. all articles of Ley 57/68), that they are entitled to have their expectations immediately honoured?
Don’t the Spanish judiciary have a legal obligation to ensure that guarantors do not renege or allow purchasers to suffer any loss ONCE DEVELOPER BREACH HAS BEEN FULLY PROVEN following developer appeal?
How therefore given all of the above could guarantors possibly ask for further appeal and revision of a law when they have failed to meet purchasers’ legitimate expectations? It doesn’t make any sense Maria!



antifreeze said:
03 December 2014 @ 08:13

Buyers in Spain paid deposits for off plans; in many cases, told by unscrupulous developers and lawyers, that plans, purchase procedures were in place....purchasers placed their 'good faith' in a system that promised to protect them against breaches, misdemeanors etc. It sounded like the safest protection for buyers, with laws backed by banks. That was good consumer protection.

When things went wrong, i;.e misrepresentation of facilities, contracts, deposits, building licences etc - these protections which were law, were not there. Thus, lead to this blockage in courts, the Spanish housing surplus stock and generally, the economy that was based on that very industry which seemed so secure and with good consumer protection. It is not so in reality. Why have laws that are not enforced?

Who will now trust a system that only exists in text but not in reality? All those who have been damaged by this injustice, will not return due to mal-practice and injustice, plus acting within the law, means nothing. Better not to have a law as take a clear view of risk - but to be told you have legal rights and protection that is not operable, is deception. When a developer changed contracts with entrapment, a court finds this acceptable and punishes the consumer. The law is not applied in the first instance because local courts do not apply the law in the same way as Appeal courts? Why? No one has clarified that.

There is no 'certainty or good faith' - the principle that most off plans were marketed to trusting buyers - it is tant amount to a major fraud against thousands of consumers who have suffered - to save a few developers who have, ruined the economy, people's lives, but taken their profits via LOCAL COURTS. Why, how can that be correct in law? How can the law be different in different levels of a judicial system?

Some developers set out with no expectation to produce what they were selling but took upfront deposits in good faith - the laws that protect consumers, have to be proved when they already exist....but not not applied.


mariadecastro said:
03 December 2014 @ 10:32

Antifreeze:

I fully agree with you. Specially in regards to lawyers, banks and estate agents regulations and discipline. Much needed in Spain.

Lawyers: I dare to say: if Bar associations were more active, much of these problems had never happened.

Some of my colleagues might be not happy to hear this but, believe me, many other do, as they are good and honest professionals; and, which is more important, our profession needs more regulation and discipline.

Banks, Estate agents...

A big matter to deal with!

Cheers

María


antifreeze said:
03 December 2014 @ 11:19

Maria - it is good to know that you acknowledge the flaws in professional areas - these exist across the board worldwide. We all accept this as long as it does not harm us.

Here, the quest should be ensure the POWERS that make and administer the laws of any constitution, should then preside to ensure the rules are followed for the benefit of the people they were intended to protect. Alternatively, denouncing laws and rights, could lead to anarchy? The buyers who invested in Spain, trusted under their rights, to have protection of this law.

sensible buyers would not invest in a lawless state; buyers were duped in to a false sense of security, believing Spain to be safe and protected. OR, they were stupid people, mostly middle aged professionals with some cachet, to go to Spain, knowing there was no legal protection?
Protection is for consumers and developers whose right seem to have the law on their side in local judgments.

Surely, a judge is a judge is a judge - in a court! Do they become better judges in Appeal courts where exactly the SAME laws apply in the same cases rejected at local level?

It is not a sensible conclusion if one were to accept this principle that removes all rights in law for the victims to empower the culprits who use this to create barriers to protect themselves, being larger organisation. In a in a first world economy, this right to use the law for protection, has been eroded - Spain is in the EU, not a lawless unknown remote country in the Wild West.

I hope the judiciary can conclude on their own constitutional edicts. There are good lawyers too who are diligent - but the developers who failed buyers, chose 'comrades' who would work with them and when all went wrong, everyone shut the doors to buyers! Sadly, this has sullied the system; it will be really hard to re-instate legal credibility in future - who to trust if you can't depend on the law.

Your comments are really appreciated Maria; they have opened up some challenges for your colleagues across Spain.




mariadecastro said:
03 December 2014 @ 11:27

http://www.eyeonspain.com/blogs/costaluz/14170/Legal-tip-1239-Still-unregulated-after-8-years.aspx

Antifreeze and Ads: Today´s post dedicated to you both ;)


ads said:
06 December 2014 @ 18:14

Sincere thanks Maria.


ambi007a said:
06 February 2015 @ 19:29

The developer of La Reserva de Marbella /Penroya to my amazement has offered only 60% to pay back of the 91K Euro
deposit I put down for a Penthouse Apt. I am trying to find out why they are doing this no after 11 years because their must be reason for this so any feedback is welcomed?

I was going to take bank legal action against the bank in questionand still want as I am losing too much money if I accept their offer and I dont trust them, please provide with f/back
about taking this action?

Kind Regards

A


ambi007a said:
06 February 2015 @ 19:30

The developer of La Reserva de Marbella /Penroya to my amazement has offered only 60% to pay back of the 91K Euro
deposit I put down for a Penthouse Apt. I am trying to find out why they are doing this no after 11 years because their must be reason for this so any feedback is welcomed?

I was going to take bank legal action against the bank in questionand still want as I am losing too much money if I accept their offer and I dont trust them, please provide with f/back
about taking this action?

Kind Regards

A


ambi007a said:
06 February 2015 @ 19:39

I want to take bank guarantee action against bank and my case is very typical of The Reserva de Marbella Penroya cases where legal
occupation has not been granted, we have won in court to cancel the contract and Penroya bas been commened to return all our money back but typically they have not so what the reasons why
Law 57/68 legalaction v banck will not work?

A


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