Legal tip 1331. NEW! WON CASE in PROVINCIAL APPEAL COURT AGAINST SGR & BBVA FOR HERRADA DEL TOLLO S.L. BUYER AT ‘RESIDENCIAL SANTA ANA DEL MONTE’
Thursday, October 8, 2015 @ 3:21 PM
WON CASE in PROVINCIAL APPEAL COURT AGAINST SGR & BBVA FOR HERRADA DEL TOLLO S.L. BUYER AT ‘RESIDENCIAL SANTA ANA DEL MONTE’
We were pleased to our client today that we had won their case against SGR & BBVA in the Provincial Appeal Court. The client did not receive an individual Guarantee 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 SGR & BBVA
Please find attached Sentence number xxx/15 from the Provincial Appeal Court of Alicante Section 9 in Elche.
I am very pleased to advise you that the Appeals filed by SGR & BBVA have been dismissed and the Sentence issued by the First Instance Court No.1 in Orihuela has been confirmed in full.
The final paragraph of the First Instance Sentence delivered on 27 June 2014 and notified on 2 July 2014 stated:
“Estimating the Lawsuit filed on behalf of XXXXXXX XXXXXXX & XXXXXXX XXXXXXX 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 plus legal interest from the date of payment of the amounts in the accounts of BBVA S.A. until full payment. No pronouncement on the imposition of costs”
The final paragraph of the Provincial Appeal Court Sentence delivered on 21 September 2015 states:
“That dismissing the Appeals filed on behalf of SGR & BBVA against the Sentence dated 27 June 2014 from the First Instance Court No. 1 of Orihuela in Ordinary Trial number XXXX/2012, we fully confirm that sentence, without making any express imposition of costs of this Appeal”
So the Appeals filed by SGR & BBVA have been dismissed and the First Instance Sentence has been upheld in full.
There was no pronouncement regarding the imposition of costs relating to the Provincial Court Appeal or for the First Instance Procedure, therefore each party will pay its own costs for both the First Instance & Appeal.
The First Instance Sentence, now confirmed in full by the Provincial Appeal Court, explained in great detail the liability of BBVA & SGR according to their obligations under LEY 57/1968. Importantly the Sentence stated that even if a buyer signed the agreement to accept partial future payments from the bankrupt developer, the inalienable rights granted to the buyer by LEY 57/1968 are not affected.
Particular points of interest stated by the Judge in the First Instance Sentence were:
“When interpreting and applying the Law 57/1968 of 27 July 1968 relating to amounts paid in advance for the construction of housing, we should not forget the aim of this Law which is to protect consumers from real estate fraud. Specifically the preamble of this Law from 1968 explains about the justified public alarm to repeated real estate abuses that in part constitute severe impairment of social interaction and other obvious crimes, besides causing irreparable damage to confidence and good faith.
The correct interpretation of the Law 57/1968 is not restricted by formalistic interpretations. The terms of the guarantee will always have to provide full and complete protection for the buyer.
Therefore, we should not forget that although insurance companies and financial institutions are not party to the contract of sale between the Promotor and Purchaser, they are not unconnected to its content or the performance of obligations arising thereof and they must ensure that these are met with the guarantees established by Law 57/1968.
Precisely because of this, the Ministerial Order of 29 November 1968 was established to implement the Law 57/1968. The controllability of Contracts of Sale of the Promotion by the guarantor reveals its obligation to monitor compliance with the obligations of LEY 57/1968.
The bank should not allow the opening of Special Accounts or accepting the deposits without first ensuring that the developer has assumed a legal obligation to ensure repayment of the amounts paid in advance by buyers. It the Bank fails in its legal duty then it is liable for the damages that failure causes to the buyers who may otherwise not be able to obtain repayment of the amounts advanced.
The agreement by the buyer to any repayment proposals offered by a bankrupt developer does not extinguish the Guarantee and the obligations therein.
In response to the arguments put forward we fully estimate this Lawsuit, ordering the defendants to refund the amount delivered to the account for the purchase of housing amounting to xx,xxx Euro. The conviction of the two entities is joint and several.
In this case, the construction of the housing has not been completed or even started, so the frustration of the purpose of the Purchase Contract is clear”
Elche, province of Alicante, Valencia, East of Spain