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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 1368. NEW! WON CASE in FIRST INSTANCE COURT AGAINST ASEFA S.A. FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER ENGRAULIS S.L. AT BUENA VISTA DE CORTES DEVELOPMENT
19 February 2016 @ 19:55

WON CASE in FIRST INSTANCE COURT AGAINST ASEFA S.A. FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER ENGRAULIS S.L. AT BUENA VISTA DE CORTES DEVELOPMENT

We were extremely pleased to inform our clients today that we had won their case against ASEFA in the First Instance Court.

The clients did not receive individual Guarantees from the developer, Engraulis S.L. or from ASEFA, the Insurance Company that signed a General Guarantee Policy with the developer.

The Purchase Contract had already been cancelled in a previous Lawsuit filed in 2012 against the developer in which the developer was sentenced to refund the off-plan deposit, however due to its financial situation the developer never paid.

Re: YOUR CASE AGAINST ASEFA S.A. SEGUROS Y REASEGUROS
PO xxx/2014

Please find attached the Sentence from the First Instance Court No.3 in Ronda.

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

The final paragraphs of the First Instance Sentence delivered on 11 February 2016 and notified on 19 February 2016 state:



“FIRST: I uphold the Lawsuit filed on behalf of xxxxxx xxxxxx and condemn the company Asefa S.A. to pay to the plaintiffs the sum of xx,xxx Euro.

SECOND: I condemn the company Asefa S.A. to pay interest according to article 20 of the Law of Contract Insurance accrued from 24 November 2014.

THIRD: I condemn the company Asefa S.A. to pay the costs”



So ASEFA S.A. is sentenced to refund the amount of xx,xxx€ plus interest according to the Insurance Law from 24 November 2014.

Costs of the legal proceedings are also imposed on Asefa S.A.

Interesting statements from the Judge in the Sentence were:


“The plaintiff asks in the Lawsuit for the defendant to be condemned to hand over the individual certificate of insurance for the amounts paid on account of the dwelling or, in the alternative, to issue a refund of the amounts paid in advance plus interest & costs.

The defendant does not deny the existence of the General Guarantee signed between the developer, Engraulis S.L. & the insurer, Asefa S.A. but argues, in essence, lack of standing to be sued as it never issued the individual certificate of insurance or guarantee to the buyer.

The plaintiff evidenced by way of a previous Court Sentence that the purchase contract was cancelled and that the developer was sentenced to refund the amounts paid.  The developer has not paid.

Therefore, the main issue on which this case must be decided is whether the General Guarantee Policy covers the request of the plaintiff.

In this regard it is necessary to refer to the recent Sentence of the Supreme Court dated 23 September 2015 in which the Supreme Court interprets that the General Guarantee Policy signed with the developer to ensure the obligations to repay the sums advanced by the buyers in compliance with Articles 1, 2 & 3 of LEY 57/1968, covers the buyers even though no individual certificate had been issued.

After studying the facts of this case and in accordance with the legal foundation exposed in the Supreme Court Sentence dated 23 September 2015, the alternative claim in this Lawsuit is upheld and the defendant, Asefa S.A. must pay to the plaintiff the amounts paid on account as advance payments for the dwelling as it had issued a General Guarantee Policy to a value of 1,663,000€, which is enough to accept the claim of the plaintiff without the need for an individual guarantee or certificate of insurance.

The Lawsuit is upheld in the alternative request since the issuing of the individual guarantee is not now required, since there is no contractual relationship between the parties and the General Guarantee Policy is sufficient to uphold the claim.

The defendant alleges that there is a limitation of 2 years for this type of action as per Article 23 of the Law of Insurance Contracts.

However, Article 1964 of the Civil Code provides 15 years for personal actions that did not have an appointed special term of limitation and since LEY 57/1968 does not establish a special deadline regarding the actions regulated in its text, we therefore apply the general deadline as per Article 1964 of the Civil Code.

The starting date for the computing of the period of limitation date will be from when the plaintiffs knew that they would not be receiving their money from the developer, Engraulis S.L.  Therefore, starting from the date of the Sentence, 19 March 2014, in which the purchase contract was cancelled and the developer sentenced to refund the amount.

In this case the interest according to Article 20 of the Law of Insurance Contracts applies as a result of the default of the insurer in meeting its obligation to return amounts advanced under its General Guarantee Policy.

In view of the above, I am condemning the defendant to pay the interest according to Article 20 of the Law of Insurance Contracts from 24 November 2014 which was the date on which this Lawsuit was filed and that the defendant insurer became aware of the incident.

In accordance with Article 394 of the Civil Procedure Code, having substantially upheld the Lawsuit, costs are imposed on the defendant”.



ASEFA S.A. has 20 working days from the date of notification of the Sentence, which was 19 February 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Malaga.

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

Ronda, Malaga

 

 

 



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1 Comments


ads said:
19 February 2016 @ 23:34

Several questions arise from this ruling Maria.

Does the judge make reference to the Law of Insurance because in this case it was not a Bank that provided the General Guarantee but an Insurance company?

Does this ruling imply that Insurance Law takes precedence over Ley 57/68?

Does Ley 57/68 afford inalienable rights upon cancellation of contract to refund of monies and costs with backdated interest from the date monies were deposited into developer account(s)?

Does this Insurance Law undermine inalienable rights according to Ley 57/68 with regard to awarding of backdated interests?


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