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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 1391.WON CASE in PROVINCIAL APPEAL COURT AGAINST SGR & BBVA FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER HERRADA DEL TOLLO S.L. AT THE SANTA ANA DEL MONTE DEVELOPMENT
24 May 2016 @ 14:52

WON CASE in PROVINCIAL APPEAL COURT AGAINST SGR & BBVA FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER HERRADA DEL TOLLO S.L. AT THE SANTA ANA DEL MONTE DEVELOPMENT

We were extremely pleased to inform our client recently that we had won their case against SGR & BBVA in the Provincial Appeal Court.

The client paid their off-plan deposit to the developer’s account at BBVA.  The client did not receive an individual Guarantee for their off-plan deposit from the developer, Herrada del Tollo S.L., BBVA – the developers bank that received the off-plan deposit or from SGR, the Insurance Company that issued a General Guarantee to the developer.

In January 2015 the case was partially won in the First Instance Court. SGR & BBVA were jointly liable to refund 65% of the off-plan deposit.  The First Instance Judge only awarded this amount due to the fact that the buyers had signed the creditor’s agreement with the administrators of the insolvent developer in which they agreed to receive only 65% of their off-plan deposit after 5 years.  This agreement ultimately failed and nothing was paid from the developer’s insolvency proceedings. 

Under instructions from our client we submitted an Appeal to the Provincial Appeal Court of Alicante to say that we believed that signing the creditor’s agreement does not affect the inalienable rights granted to the buyers by LEY 57/1968.

SGR also filed an appeal against the First Instance Sentence.

The Provincial Appeal Court has upheld our Appeal, amended the First Instance Sentence and condemned BBVA & SGR to refund the full amount of the off-plan deposit plus interest at the legal rate from the date the money was paid to the developer’s account at BBVA.

The Appeal filed by SGR was dismissed.

Re: YOUR CASE AGAINST SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA (SGR) & BANCO BILBAO VIZCAYA ARGENTARIA S.A. (BBVA)
PO xxxx/2012

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

I am very pleased to advise you that your Appeal has been upheld and the Appeal filed by SGR has been dismissed.

The final paragraph of the First Instance Sentence delivered on 21 January 2015 and notified on 28 January 2015 stated:



“Partially estimating the Lawsuit filed on behalf of xxxxx & xxxxx 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; with no pronouncement on the imposition of costs”


The Sentence was later rectified to read:


“Partially estimating the Lawsuit filed on behalf of xxxxx & xxxxx 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; with no pronouncement on the imposition of costs”

The final paragraph of the Provincial Appeal Court Sentence delivered on 21 March 2016 and notified on 23 May 2016 states:


“Dismissing the Appeal filed on behalf of Sociedad de Garantia Reciproca de la Comunidad Valenciana against the Sentence dated 21 January 2015 and the Auto dated 16 March 2015 issued by the Judge of the First Instance Court No. 3 Of Orihuela.  Without costs.

Upholding the Appeal filed by the legal representation of the plaintiff, xxxxx & xxxxx against the Sentence and Auto, we reverse that resolution, and instead condemn the defendants to pay the plaintiffs the amount of xx,xxx Euros plus legal interest from the date of payment to the accounts of BBVA.  Without costs”


So your Appeal has been upheld and the First Instance Sentence has been amended.  The Appeal filed by SGR has been dismissed.

The Appeal filed by BBVA was inadmissible due to late submission.

BBVA & SGR are now condemned to pay you xx,xxx€ plus legal interest from the date you paid to the developers account at BBVA.

There is no imposition of Costs for the First Instance procedure or the Appeal.  Therefore, each party will pay its own costs for both the First Instance & Appeal.

In the Sentence the Magistrates have followed the Jurisprudence already established by the Provincial Appeal Court of Alicante and the Supreme Court in relation to interest & costs.  They have also followed the Jurisprudence in relation to the fact that although the buyers agreed to receive lower amount in the insolvency agreement with the developer (which was never paid) this does not affect the full obligations of the Guarantor or the Bank receiving the off-plan funds according to LEY 57/1968.

SGR has 20 working days from the date of notification of the Sentence, which was 23 May 2016, to comply with the Sentence or to file a Cassation Appeal to the Supreme Court.

Although any appeal must be submitted strictly within the 20 working day deadline, we may not receive notification of an Appeal or of a firm sentence from the Court for a few weeks after the deadline due to the workload of the 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.



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