Legal tip 1332. NEW! WON CASE in PROVINCIAL APPEAL COURT AGAINST CAIXABANK FOR PROMOCIONES EUROHOUSE 2010 S.L. BUYERS AT ‘RESIDENCIAL FORTUNA GOLF RESORT’
Thursday, October 8, 2015 @ 3:38 PM
WON CASE in PROVINCIAL APPEAL COURT AGAINST CAIXABANK FOR PROMOCIONES EUROHOUSE 2010 S.L. BUYERS AT ‘RESIDENCIAL FORTUNA GOLF RESORT’
We were pleased to our clients today that we had won their case against Caixabank in the Provincial Appeal Court. The clients did not receive an individual Guarantee from the developer, Promociones Eurohouse 2010 S.L. or from the Bank to which their off-plan deposit was paid, CAIXABANK (formerly LA CAIXA).
Re: YOUR CASE AGAINST CAIXABANK S.A.
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 Appeal filed by CAIXABANK has been dismissed and the Sentence issued by the First Instance Court No.4 in Orihuela has been confirmed in full.
The final paragraph of the First Instance Sentence delivered on 17 December 2014 and notified on 23 December 2014 stated:
“Partially estimating the Lawsuit filed on behalf of XXXXXX XXXXXXX and XXXXXXX XXXXXX & XXXXXXX XXXXXX against CAIXABANK S.A., and must condemn the defendant to the repayment of the amount of XX,XXX Euros, this amount to be paid to the claimants according to the second claim of the Lawsuit, plus legal interest from the date of payment to the developer until full payment. No imposition of costs is made”
The final paragraph of the Provincial Appeal Court Sentence delivered on 18 September 2015 states:
“That dismissing the Appeal filed on behalf of CAIXABANK S.A. against the Sentence dated 17 December 2014 from the First Instance Court No. 4 of Orihuela in Ordinary Trial number XXXX/2012, we confirm that sentence in its entirety. The costs of this appeal are imposed on the appellant”
So the Appeal filed by CAIXABANK has been dismissed and the First Instance Sentence has been upheld in full.
The Provincial Appeal Court Sentence quotes extensively from other recent Sentences issued by the Alicante Provincial Appeal Court in relation to the interpretation and application of LEY 57/1968 which it considers are entirely applicable to this case.
In conclusion the Provincial Appeal Court states:
“The doctrine expounded is applicable to the case discussed, as confirmed by the First Instance Court and accepted in this appeal, that regarding the type of income to the developer’s bank account the Director of the Office 4271 of Orihuela when speaking as a witness said that he did not know the amounts accepted into the developer’s account were for payments on account of the price of off-plan housing promoted by his client, as it was a normal current account and not a special account.
However, the fact remains that he knew perfectly well in which type of business his commercial client was engaged (he said that they were selling 2000 homes a year, although he did not have a record of all the promotions) but did not give a satisfactory reason why large quantities paid for homes were held in the current account, but coming to recognize that in the end, it is normal that his client paid into the account the proceeds of their sales, although in his bank they have never opened special accounts in 16 years, because developers do not ask for such accounts.
It is evident that we have a special account, though not from the official title of such account, but from the origin and destination of the funds paid to that account. The fact that neither the developer nor the bank was concerned about the legal obligation to issue individual guarantees, in no way can harm the consumer.
In short, the bank should not allow the opening of special accounts and making deposits in it without first making sure that the promoter has assumed a legal obligation to ensure the return of the amounts paid in advance, and if the Bank fails in this legal duty, it is liable for the losses caused to the buyers”
Orihuela, province of Alicante, Comunity of Valencia, East of Spain