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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 1388. LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST CAJAMAR, CAJA RURAL and PROMOCIONES EUROHOUSE S.L. AT FORTUNA GOLF RESORT, LOS BALCONES DEL VALLE & APARTAMENTOS TURISTICOS PUEBLO LA SAL
11 May 2016 @ 09:33

LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST CAJAMAR CAJA RURAL FOR 9 OF OUR CLIENTS WHO PURCHASED OFF-PLAN PROPERTIES FROM THE DEVELOPER PROMOCIONES EUROHOUSE S.L. AT FORTUNA GOLF RESORT, LOS BALCONES DEL VALLE & APARTAMENTOS TURISTICOS PUEBLO LA SAL 

We were extremely pleased to inform our clients recently that we had won their case against CAJAMAR CAJA RURAL in the Provincial Appeal Court.

The 9 clients paid part of their off-plan deposits to the developer’s account at CAJAMAR CAJA RURAL.  The clients did not receive individual Guarantees for their off-plan deposits from the developer, Promociones Eurohouse S.L. or from CAJAMAR CAJA RURAL, the Bank to which the part of their off-plan deposit subject to this action was paid.


Re: YOUR CASE AGAINST CAJAMAR CAJA RURAL SOCIEDAD COOPERATIVA DE CREDITO
PO: xxxx/2012

Please find attached Sentence number xxx/2016 from the Provincial Appeal Court of Alicante Section 9 based in Elche.

I am very pleased to advise you that the Appeal filed by Cajamar Caja Rural against the First Instance Sentence has been dismissed.  The First Instance Sentence has been confirmed.

7 of the 9 claimants in the group also filed a challenge against the First Instance Sentence in respect of the costs of the First Instance procedure not being imposed on Cajamar Caja Rural.

Unfortunately the costs challenge has been dismissed and the costs relating to that challenge have been imposed on the 7 claimants who made the challenge.

The final paragraph of the First Instance Sentence delivered on 16 April 2015 and notified on 28 April 2015 states:



“I estimate the Lawsuit filed on behalf of 9 CLAIMANTS against the financial institution CAJAMAR CAJA RURAL SOCIEDAD COOPERATIVA DE CREDITO, and must condemn the defendant to the repayment of the amount of xx,xxx€, plus legal interest from the date of payment to the developer’s account in CAJAMAR CAJA RURAL.  All without an express imposition of costs”



The final paragraphs of the Provincial Appeal Court Sentence delivered on 1 April 2016 and notified on 22 April 2016 state:


“We dismiss the Appeal filed by the legal representation of CAJAMAR CAJA RURAL SOCIEDAD COOPERATIVA DE CREDITO against the Sentence dated 16 April 2015, issued by the Judge of the First Instance Court No.3 of Orihuela in Ordinary Procedure xxxx/2012, which is confirmed, with the express imposition of costs of this Appeal on the appellant bank.

We dismiss the challenge by 7 CLAIMANTS against the same Sentence which is confirmed with the express imposition of costs of this challenge on the appellant plaintiffs”



So the Appeal filed by Cajamar Caja Rural has been dismissed and the First Instance Sentence has been confirmed.  Costs of the Appeal are imposed on Cajamar Caja Rural.

The challenge made by the 7 group members against the non-imposition of costs of the First Instance on the Bank has also been dismissed.  Costs of the challenge have been imposed on the 7 group members.

So the First Instance Sentence is confirmed in all aspects.

According to the First Instance Sentence, now confirmed, CAJAMAR CAJA RURAL SCC is liable to refund the total amount of xx,xxx€ plus legal interest from the date each amount was paid to the Promociones Eurohouse account at CAJAMAR CAJA RURAL until full payment to the Court. 

Costs of the First Instance procedure are not imposed on any one party.  Therefore each party will bear its own legal costs of the First Instance and any common costs will be halved.

In the Sentence the Magistrates state:

“Cajamar Caja Rural appealed claiming that the case law used to support the First Instance Sentence does not correspond to the factual circumstances of this case.  It says that for the 9 claimants in this case all purchase contracts stated that the off-plan deposits should be paid to BBVA.  In fact, of the amounts paid only around 10% was actually deposited into the developers account in Cajamar Caja Rural.  All those amounts were deposited on behalf of the buyers by the intermediary Ole Mediterráneo S.L.  The account opened by the constructor Eurohouse was a normal account, without control of the financial entity, not for the receipt of off-plan funds and with no obligations imposed by LEY 57/1968.  Cajamar Caja Rural states that Eurohouse did not have a Special Account opened in its branches.  Therefore, it did not know the source of the income into the Eurohouse account.

The plaintiffs also challenged the non-imposition of costs of the First Instance on the Bank, stating that they believed there are no serious questions of law on the matter of the Bank’s liability according to LEY 57/1968.

The question at issue regarding the Appeal filed by Cajamar Caja Rural focuses on the existence of an obligation of the defendant bank to ensure that the amounts paid by buyers into an account opened by the builder should be deposited in a special account that would ensure their return to the buyers in case of default by the developer.

This Court finds no reason to change the criterion of the Sentence of the First Instance Court.

Given the conflicting jurisprudence regarding LEY 57/1968, with regards to the Special Account, we must maintain the view of the First Instance Court which considers the doubts generated by the Law does not lead to imposition of costs of the First Instance on the defendant bank”



Cajamar Caja Rural SCC has 20 working days from the date of notification of the Sentence, which was 22 April 2016, to comply with the Sentence or to file a Cassation Appeal to the Supreme Court.

If a Cassation Appeal is filed by the defendant it will be necessary for us to file an Opposition to the Appeal on your behalf.

If the defendant fails to comply with the sentence then we will enforce the sentence against it.

Elche, Alicante, Valencian Commmunity, Eastern Spain



Like 1




10 Comments


ads said:
11 May 2016 @ 11:10

Maria, please could you explain what is this conflicting jurisprudence relating to special account and doubts generated by law not leading to imposition of costs that the judge makes reference to?


mariadecastro said:
11 May 2016 @ 12:12

Ads:
That conflicting Case Law this judge is talking about was clearly overcome when Supreme Court set doctrine in January and April 2015 on this.


ads said:
11 May 2016 @ 13:27

Thank you Maria.
So how can this form of judicial contra legem ruling that does not respect recent SC rulings that clarify law be challenged within the Spanish Justice system?



mariadecastro said:
11 May 2016 @ 13:33

By appealing to Appeal Court.
It is being understood by some judges that if the Bank´s opposition was before the Supreme Court rulings, it still existed then contradictory opinions among judiciary on this.


mariadecastro said:
11 May 2016 @ 13:33

By appealing to Appeal Court.
It is being understood by some judges that if the Bank´s opposition was before the Supreme Court rulings, it still existed then contradictory opinions among judiciary on this.


ads said:
11 May 2016 @ 14:51

What appears inconceivable in this scenaro is that if the inevitable conclusion to an appeal to the appeal court, that due to its timing (since this would be deemed to be after SC clarification), results in full recognition of SC rulings that clarify the law, and in that process costs would be awarded, then why can't the judiciary recognise this "inevitable conclusion" in the first place?
Am I missing something here Maria?


mariadecastro said:
11 May 2016 @ 15:06

Appeal Court might not estimate the appeal either. So it is a decission that needs to be taken with good prudence and discernment



ads said:
11 May 2016 @ 16:29

I do understand Maria but it seems harsh in the extreme (morally indefensible?) that clients who have stood their ground to defend and pioneer for legal rights against the Banks during this last decade and beyond to be fully recognised, and in that process have been subjected to major delays to gain clarification of this law (delays that have been as a direct consequence of Banks ploys to flood the justice system with appeals) are now subjected to yet further delays and costs in order to have clarification of law that they have been seeking from the outset recognised.

I truly hope that award of costs is fully recognised in this context by the judiciary and that full recognition of SC rulings is not only reserved for those who delay their legal challenges until such time as clarification of law was achieved by those who pioneered for legal and inaluenable rights to be fully recognised.


ads said:
11 May 2016 @ 16:44

Why should those who pioneered for legal rights to be recognised from the outset be denied SC clarification by the judiciary?


mariadecastro said:
12 May 2016 @ 13:52


I fully agree with you Ads. You have an acute sense of Justice


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