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Legal tip 1395.LEY 57/1968 Won Case in Provincial Appeal Court against SGR for our client who purchased an off-plan property from the developer Herrada del Tollo at Residencial Santa Ana del Monte
19 July 2016 @ 11:45

LEY 57/1968 Won Case in Provincial Appeal Court against SGR for our client who purchased an off-plan property from the developer Herrada del Tollo at Residencial Santa Ana del Monte

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

The client paid their off-plan deposit according to the Purchase Contract to the developer’s bank account at BBVA.  The client did not receive an individual Guarantee for their off-plan deposit from the developer, Herrada del Tollo or from the developer’s bank BBVA or from SGR who had issued a General Guarantee for the development.

The First Instance Court condemned BBVA & SGR jointly & severally to refund the off-plan deposit plus interest from the date of payment.  Costs of the First Instance were also imposed on the defendants.

SGR filed an Appeal against the First Instance Sentence.  The Provincial Appeal Court dismissed the SGR Appeal in all aspects, except for the imposition of costs of the First Instance.  This part of the First Instance Sentence has now been reversed by the Provincial Appeal Court.


Re: YOUR CASE AGAINST SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA (SGR) & BANCO BILBAO VIZCAYA ARGENTARIA S.A. (BBVA)
PO xxxx/2011

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

I am pleased to advise you that the Appeal filed by SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA has been dismissed except for the issue of the costs of the First Instance procedure.

The final paragraph of the First Instance Sentence delivered on 23 September 2015 and notified on 2 October 2015 stated:



“Estimating the Lawsuit filed on behalf of xxxxxx against SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA & BANCO BILBAO VIZCAYA ARGENTARIA S.A. I condemn the defendants jointly & severally to pay to Mrs XXXXXXXXXXXX the amount of xx,xxx Euro plus legal interest on x,xxx€ from 28 April 2006 & on xx,xxx€ from 16 August 2006 until the full repayment and impose the costs on the defendants”


The final paragraph of the Provincial Appeal Court Sentence delivered on 20 June 2016 and notified on 1 July 2016 states:


“Partially upholding the appeal filed by SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA against the Sentence dated 23 September 2015 issued by the Judge of the First Instance Court No. 6 of Orihuela, we partially reverse that Sentence, in respect of the costs, in the sense of not imposing the costs incurred in the First Instance to any of the parties involved, leaving intact the rest of the pronouncements of the contested Sentence.  No imposition of costs of this appeal”


So the Appeal filed by SGR has been dismissed, except for the issue of costs of the First Instance procedure.  In the First Instance Sentence the Judge imposed costs on the defendants (SGR & BBVA).  The Appeal Court magistrates have reversed the part of the decision relating to the costs.  Costs of the First Instance procedure are not imposed on any party.  Therefore, each party will pay its own costs relating to the First Instance Proceedings and common costs will be halved.

There was no imposition of costs relating to the Appeal.  Therefore, each party will pay its own costs relating to the Provincial Appeal Court procedure and common costs will be halved.

All other aspects of the First Instance Sentence have been confirmed.

As per the First Instance Sentence SGR & BBVA are jointly & severally liable to refund the total amount of xx,xxx€ legal interest from the date each amount was paid to the developer’s account.

Each party pays its own costs of both procedures.

Interesting statements by the Appeal Court Magistrates are:


“With regards to the payment of interest, the purpose of the Act (LEY 57/1968) is to protect consumers who have paid amounts in advance for housing that has not been delivered.  That purpose is not achieved if interest is not paid from the date the payments were originally made to the developer’s bank account.

With regards to costs of the First Instance, the appellant (SGR) alleges infringement of article 394 of the LEC (Civil Code).  The Lawsuit was admitted into procedure in 2012.  The appellant (SGR) filed its defence in time on 14 February 2013.  The Supreme Court Sentence which mainly supports the condemnation of SGR according to the General Guarantee it issued is dated 23 September 2015, so at the time that SGR filed its defence in February 2013 that Supreme Court Sentence had not been issued.  Therefore, it is true that in February 2013 there existed legal doubts regarding the liability of the General Guarantor in these types of cases.  Therefore, we must reverse the imposition of costs of the First Instance.  Therefore in accordance with article 394 of the LEC, each party will pay its own costs of the First Instance procedure.

Regarding the costs of this Appeal, the truth is that the Appeal filed by SGR has been partially successful in the sense that the part of the First Instance Sentence relating to the imposition of costs has been reversed.  So pursuant to Article 398.2 of the LEC costs of this Appeal are not imposed on any party.  Therefore, each party will pay its own costs in respect of this Appeal”



SGR has 20 working days from the date of notification of the Sentence, which was 1 July 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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2 Comments


ads said:
20 July 2016 @ 11:36

Maria,

with regard to the principle re imposition of costs, does this case not conflict with another ruling where it has been stated "this is governed by article 394 of civil procedure act, therefore as lawsuit has been upheld substantially with only a slight difference of less than 10% between amount claimed and amount awarded, legal costs must be paid by defendant bank"?

Would clarification of article 394 then mean that the first instance sentence should be fully upheld in this case, which would then allow appeal costs to be reclaimed against the Bank?

Does the client get the opportunity to contest this re-imposition of costs and gain clarification of article 394 in this regard or is this never able to be further challenged at provincial or SC level?

Does this in effect mean that no-one submitting a claim prior to SC clarification of Ley57/68 will ever be able to reclaim costs?

Perhaps I have misunderstood, in which case I would be very grateful if you could please answer all of the above.

Many thanks.


Keith110 said:
20 July 2016 @ 13:32

Ads

See my answer to this question on Legal tip 1398


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