All EOS blogs All Spain blogs  Start your own blog Start your own blog 

El blog de Maria

Your daily Spanish Law reporter. Have it with a cafe con leche. www.costaluzlawyers.es

Legal tip 1399.LEY 57/1968 Won Case in Provincial Appeal Court against SGR for 2 clients who purchased off-plan properties from the developer Herrada del Tollo at Residencial Santa Ana del Monte
Thursday, July 21, 2016 @ 7:57 AM

LEY 57/1968 Won Case in Provincial Appeal Court against SGR for 2 clients who purchased off-plan properties from the developer Herrada del Tollo at Residencial Santa Ana del Monte

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

The clients paid their off-plan deposits according to the Purchase Contracts to the developer’s bank account at various banks.  The clients did not receive individual Guarantees for their off-plan deposits from the developer, Herrada del Tollo or from the developer’s banks or from SGR who had issued a General Guarantee for the development.

The First Instance Court condemned Banco Popular only for the actual amounts for which the buyers had proof of payments to the developer’s accounts opened at its branches.

SGR who issued a General Guarantee to the developer was acquitted and absolved of any liability.

Banco Popular filed an Appeal.  Its Appeal was dismissed and the First Instance Sentence against Banco Popular was confirmed.

On the instructions of our clients we filed an Appeal regarding the acquittal of SGR.  Our Appeal was upheld and SGR was sentenced to refund the full amount paid by both buyers according to the General Guarantee it issued to the developer.  This also included amounts for which the buyers did not have specific proof of payment, but which were recognised in the insolvency procedure of the developer.


Re: YOUR CASE AGAINST SOCIEDAD DE GARANTIA RECÍPROCA DE LA COMUNIDAD VALENCIANA & BANCO PASTOR (now BANCO POPULAR)
PO xxxx/2011

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 the Appeal filed by BANCO POPULAR has been dismissed.

Your Appeal against the acquittal of SGR has been upheld.

The final paragraphs of the First Instance Sentence delivered on 2 June 2015 and notified on 5 June 2015 stated:


“That partially upholding the Lawsuit filed on behalf of 2 BUYERS against SOCIEDAD DE GARANTIA RECÍPROCA DE LA COMMUNIDAD VALENCIANA and against BANCO PASTOR, I condemn Banco Pastor only to pay to BUYER 1 the sum of xx,xxx Euros plus legal interest from the date of payment by the buyers and to pay nothing to BUYER 2, and I also acquit and absolve Sociedad de Garantía Recíproca de la Communidad Valenciana of any liability in this case.

 

As for costs it will be as per the third article of this resolution.

THIRD – In respect of costs, they are imposed as follows:  In respect of the costs incurred by Sociedad de Garantía Recíproca de la Communidad Valenciana these are imposed on the plaintiffs.  In respect of the costs of the action against Banco Pastor each party shall pay its own costs and any common costs will be halved”


The final paragraphs of the Provincial Appeal Court Sentence delivered on 19 May 2016 and notified on 27 May 2016 state:


“Dismissing the appeal filed by BANCO POPULAR and partially upholding the Appeal filed by 2 BUYERS, against the Sentence dated 2 June 2015 issued by the Judge of the First Instance Court No. 5 of Orihuela, we reverse that Sentence and instead say:

Upholding entirely in its alternative claim the Lawsuit filed by 2 BUYERS against Sociedad de Garantía Recíproca de la Comunidad Valenciana (SGR), condemning it to pay to BUYER 1 the amount of xx,xxx€ and to BUYER 2 the amount of xx,xxx€, plus legal interest from the date the amounts were paid to the developer’s bank account.

Upholding substantially in its alternative claim the Lawsuit filed by BUYER 1 against Banco Popular, condemning it to pay to them the amount of xx,xxx€ plus legal interest from the date the amount was paid to the developer’s bank account.

Dismissing the Lawsuit filed by BUYER 2 against Banco Popular and absolve the claims made against it.

Declare the joint liability of the co-defendants for the condemned amounts”



So the Appeal filed by BANCO POPULAR has been dismissed.

Your Appeal against SGR has been upheld.

SGR is now sentenced to pay:

xx,xxx€ to Messrs xxxxx

xx,xxx€ to Messrs xxxxx (of this amount Banco Popular is jointly liable for xx,xxx€)

As per the First Instance Sentence, Banco Popular is not liable to pay Messrs xxxxx anything.

On 27 June 2016 the Court issued a decree which slightly amended the Provincial Appeal Court Sentence in respect of the costs.

The Sentence is amended as follows:

“Dismissing the appeal filed by BANCO POPULAR and partially upholding the Appeal filed by 2 BUYERS, against the Sentence dated 2 June 2015 issued by the Judge of the First Instance Court No. 5 of Orihuela, we partially reverse that Sentence and instead say:

Upholding entirely in its alternative claim the Lawsuit filed by 2 BUYERS against Sociedad de Garantía Recíproca de la Comunidad Valenciana (SGR), condemning it to pay to BUYER 1 the amount of xx,xxx€ and to BUYER 2 the amount of xx,xxx€, plus legal interest from the date the amounts were paid to the developer’s bank account.  Expressly condemns such co-defendant with the costs incurred in this procedure.

Imposing on Banco Popular the costs of its Appeal.  Without special pronouncement of costs relating to the Appeal of the plaintiffs.

The original Sentence is otherwise confirmed”



Interesting statements by the Appeal Court Magistrates are:


“Regarding the appeal filed by Banco Popular we refer to the reasoning of the lower court which reflects the existing case law on this subject.  So we dismiss the appeal based on the criteria of the Supreme Court and also of this Section 9 of the Provincial Appeal Court of Alicante in the Sentence of 1 April 2014 on the matter of interpretation of LEY 57/1968.

Regarding the Appeal of Messrs xxxxx & Messrs xxxxx against the acquittal of SGR, the condemnation of SGR from the moment it gave a Guarantee Line (General Guarantee) to the developer, has already been decided on several occasions by this Appeal Court Section 9 in similar cases, as an example we cite the Sentence of 12 May 2015, that both litigants know perfectly well.

In addition and subsequently there is the Supreme Court Sentence of 23 September 2015.

Regarding the amounts claimed, given the Sentence that recognizes the amount paid and the other documents provided for that purpose, we conclude that SGR must return to Messrs xxxxx the amount of xx,xxx€ and to Messrs xxxxx the amount of xx,xxx€ (including the x,xxx€ reservation deposit paid at the signing of the contract) claimed in respect of advance payments for off-plan homes.  These amounts accrue legal interest from the date of payment to the developer’s bank account”



SGR & Banco Popular have 20 working days from the date of the Decree modifying the Sentence, which was 27 June 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 either defendant it will be necessary for us to file an Opposition to the Appeal on your behalf.

A view of Valencia, Eastern Spain



Like 3




15 Comments


ads said:
Tuesday, September 13, 2016 @ 12:04 AM

Maria,have either the Bank or SGR appealed this decision to the Supreme Court?
If so how can they do this if the SC have already issued jurisprudence ( doctrine) recognising Banks or Guarantors liabilities according to article 2 of Ley 57/68?
Can they just keep appealing to the SC ad infinitum in this regard?
Do the SC have the right to dismiss appeals under this circumstance where doctrine has already been established?
Is it correct to say that so long as the Banks or General guarantors continue challenging existing SC jurisprudence in this way that clients will be denied imposition of costs being made against the Banks/ General guarantors?
At what point would this be deemed an immoral and abusive ploy by purposefully delaying with intent to save themselves being made liable for costs with other lawsuits during this interim period?



Keith110 said:
Tuesday, September 13, 2016 @ 11:36 AM

Ads - Yes. We have just received notification from the Court to say that SGR has filed a Cassation Appeal with the Supreme Court. It seems that SGR are taking every Herrada Del Tollo case to the Supreme Court.

Yes, they have a legal right to file a Cassation Appeal to the Supreme Court in every case if they so wish. However, the Supreme Court can decide not to admit the Cassation Appeal into procedure if it believes that the matter has already been resolved with previous Supreme Court rulings or if it believes there is no cassational interest in the case.

Unfortunately the pace at which the Supreme Court works is very slow due to the number of cases it has. So it can take between 6 & 24 months just for the Supreme Court to announce if it will admit the appeal or not.

If SGR loses its Cassation Appeal or if the Appeal is not admitted then it is likely that the costs of the Supreme Court procedure will be imposed on SGR.


ads said:
Tuesday, September 13, 2016 @ 2:23 PM

Thank you Keith.

Will these major delays now compromise imposition of costs on all outstanding first instance and appeal cases relating to SGR (without any possibility of regaining these costs from SGR in the event that SGR lose or have their cassation appeal(s) dismissed)?

Is it now important to identify that this is compromising the rule of law in Spain, insomuch as failure to afford timely justice (via SC rulings or decisions re non admission of Cassation appeals) is directly compromising outcomes with regard to imposition of costs?

Will all related cases now be deemed to be sufficiently in doubt in the lengthy interim periods, which directly benefits SGR such that they will not have first instance or appeal costs imposed in all outstanding related cases?

Is this not in effect making innocent clients pay the price for delayed justice, which is none of their making?

Should clients now be bringing this rule of law "right to timely justice" to the attention of the European Commission or will the judiciary recognise this injustice and as default impose costs on SGR in these lengthy interim periods ( which ironically SGR would be able to appeal in the event of them eventually gaining a successful ruling from their Cassation Appeal)?

Is this not in effect a discriminatory legal process, where SGR could ultimately appeal against imposition of costs, and yet clients cannot?


Chrissie1 said:
Saturday, September 17, 2016 @ 8:17 PM

Who has had our deposit for 10 years ?


Chrissie1 said:
Saturday, September 17, 2016 @ 8:19 PM

Where is Law 57/68 when you need it?


Chrissie1 said:
Saturday, September 17, 2016 @ 8:23 PM

Discriminatory. Too long. Cruel. Wrong. My deposit is sitting somewhere for 10 years !!! Maria are you fighting hard enough ? How would you feel if this was you. Not good. 8,000 euros on top of our deposit. Is this justice. NO.


Chrissie1 said:
Saturday, September 17, 2016 @ 8:23 PM

Discriminatory. Too long. Cruel. Wrong. My deposit is sitting somewhere for 10 years !!! Maria are you fighting hard enough ? How would you feel if this was you. Not good. 8,000 euros on top of our deposit. Is this justice. NO.


mariadecastro said:
Monday, September 19, 2016 @ 7:42 AM

Dear Chris:
Yes, we are fighting very hard.

Your deposit is protected by law 57/68 and irrespective of where it has been for 10 years, the responsible party: guarantor or bank where it was deposited, will haver to return it with its corresponding legal interests.

I know that timeframes of Courts is frustrating but justice is being very well exercised by Courts in this law 57/68 cases.

I know the waiting is hard,

Cheers

María


Chrissie1 said:
Monday, September 19, 2016 @ 10:43 AM

Thank you Maria.


mariadecastro said:
Monday, September 19, 2016 @ 12:19 PM

A pleasure
Maria


briando55 said:
Tuesday, September 20, 2016 @ 3:53 PM

But if the court is not recognising the banks tactic in the matter, we could be fighting for a deposit back which is wiped out by the imposition of costs for the lawyer and court fees.

I cant get any information from anywhere about how and when interest is being paid back, and I then worry that costs of fighting a case is not going to get deposits returned, but just paying fees instead.

What is the reassuring comments concerning this?


mariadecastro said:
Wednesday, September 21, 2016 @ 2:08 PM

Briando55:

There is no general rule on interests and costs at present. If you email me I can give to you an orientation on how your corresponding Appeal Courts are behaving in your case

Maria


brooke said:
Tuesday, September 27, 2016 @ 10:34 AM

Hi Maria We have won our case + court costs and interest.We have received the main payment and was wondering how long it will be before we get our costs and interest back Thank you


mariadecastro said:
Tuesday, September 27, 2016 @ 11:02 AM

Brooke:
Cannot predict.It depends on Courts workload
Cheers
María


geordiejenny said:
Sunday, October 16, 2016 @ 10:52 AM

can anyone help purchased off plan never built and the spanish lawyer I have
here insists my case has been to court. I believe If this was so from cases in Spain being heard I would be required to attend court? Is this correct


Only registered users can comment on this blog post. Please Sign In or Register now.




 

This site uses cookies. By continuing to browse you are agreeing to our use of cookies. More information here. x