El blog de Maria

WON CASE AGAINST BANCO POPULAR FOR MIRAFLORES DEVELOPMENT INVERSIONES BUYER AT THE ‘VISTAS DEL LAGO’ DEVELOPMENT

We were pleased to notify our client today that we had won their case against Banco Popular.  The client did not receive an individual Guarantee from the developer, Miraflores Development Inversiones or from the Bank to which their off-plan deposit was paid, BANCO POPULAR (formerly BANCO DE ANDALUCIA).

Re: YOUR CASE AGAINST MIRAFLORES DEVELOPMENTS INVERSIONES S.L. & BANCO POPULAR ESPAÑOL S.A.

Please find attached Sentence number XX/15 from the Provincial Appeal Court Section 8 in Cadiz.

I am very pleased to advise you that your Appeal has been upheld and the Sentence issued by the First Instance Court No.2 In Arcos de La Frontera has been reversed in the sense that BANCO POPULAR ESPAÑOL S.A. is now convicted in solidarity with MIRAFLORES DEVELOPMENT INVERSIONES S.L.

The final paragraphs of the First Instance Sentence delivered on 1 May 2014 stated: 

“I estimate the Lawsuit filed on behalf of xxxxxx & xxxxxx against MIRAFORES DEVELOPMENT INVERSIONES S.L. and declare terminated the Purchase Contract signed between the parties dated 12 December 2006 and condemn the defendant, MIRAFLORES DEVELOPMENT INVERSIONES S.L. to return to the plaintiffs the amount of xx,xxx Euro plus interest at the legal rate from the date of delivery of those amounts until payment to the Court, plus the costs of these proceedings.

I must acquit and absolve BANCO POPULAR ESPAÑOL S.A. of all claims made against it with the imposition of costs on the plaintiff”


The final paragraph of the Provincial Appeal Court Sentence delivered on 19 May 2015 states:

“That estimating the Appeal filed on behalf of xxxxxxxx & xxxxxxx against the Sentence from the First Instance Court No. 2 of Arcos de La Frontera in Ordinary Trial number xxx/2011, we reverse that Sentence in the unique sense of condemning in solidarity BANCO POPULAR ESPAÑOL S.A. to pay to the Plaintiff the sum of xx,xxx Euro plus interest at the legal rate from the date of payment of that amount until the full payment to the Court.

No special pronouncement in respect of the costs of this Appeal, however we now impose the costs of the First Instance procedure on BANCO POPULAR ESPAÑOL S.A.”


So your Purchase Contract was cancelled in the First Instance Sentence and now the Provincial Appeal Court has ruled that BANCO POPULAR is condemned in solidarity with MIRAFLORES DEVELOPMENT INVERSIONES S.L. to pay you the sum of xx,xxx Euro plus legal interest from the date you paid the amount to the developers bank account, until full payment to the Court.

The costs of the First Instance Procedure are now imposed on BANCO POPULAR.

There was no pronouncement regarding the imposition of costs relating to the Provincial Court Appeal therefore each party will pay its own costs in relation to the Appeal.

Interesting statements from the Provincial Appeal Court are:

“The purpose of LEY 57/1968 is to ensure that the Purchaser is able to recover amounts paid in advance for off-plan properties in the situation where the construction is not started or completed on time.  This is a protective norm that has to be interpreted according to its spirit and purpose in a way that ensures the effective return of the amounts paid in advance, assuming the construction is not completed, as also stated in the preamble to LEY 57/1968.

Our Supreme Court is now issuing Sentences interpreting a rigorous and formal attention to the protective nature of LEY 57/1968.  Therefore it requires an interpretation consistent with consumer protection.

The requirement that LEY 57/1968 imposes on the Bank is not only to enter the buyers amounts in a Special Account but not to allow the opening of that account without the Guarantees required by the Law, which are imposed ‘under its responsibility’.  Therefore, by receiving deposits into the developers account there is a legal obligation on the bank to demand the Guarantees, and if not, then the Bank must respond to the homebuyers with compliance to its obligations under the Law.

This Court, under the principal of consumer protection, considers no legal impediment for not having issued the individual guarantee to the buyers and therefore the bank must assume the obligation to return the amounts delivered.

The Bank knew perfectly well that the developer was constructing a residential complex as the Bank even signed a General Guarantee with the developer and opened an account for the receipt of off-plan funds, but did not require the developer to obtain specific Guarantees for individual buyers.

It is true that Article 1 of LEY 57/1968 refers to the opening of a Special Account and the account used by the developer in Banco Popular was not, but the requirement imposed by the Law when it says that the Bank will require for the opening of this account, and under its responsibility, the Guarantee previously mentioned, cannot be interpreted in a formalistic sense as this would remove the protective standard when the bank knows and allows the use of such an account for the receipt of off-plan funds.

In short, the bank should not permit the use of an account in its entity without confirming that the developer has assumed a legal obligation to effectively ensure the return of the amounts paid in advance by homebuyers.  To do so gives rise to the responsibility of the Bank and accordingly we estimate this Appeal”

A street of Arcos de la Frontera, Cádiz, South of Spain

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