Legal tip 1412. Case won in the Malaga First Instance Court against CAIXABANK for an off-plan property from Proverte/Ocean View at Guadalupe Hills
Thursday, November 17, 2016 @ 1:57 PM
We were very happy to tell our clients recently that we had won their LEY 57/1968 Bank Action case against Caixabank in the First Instance Court in Malaga for an off-plan property they reserved at Guadalupe Hills from the developer Proverte through the agent Ocean View.
No Individual Guarantee
Our clients paid their off-plan deposit to the developer’s account at Caixabank (formerly La Caixa). Caixabank did issue a General Guarantee to Proverte/Ocean View but failed to issue or verify the existence of the Individual Guarantee.
First Instance Court Sentence
The First Instance Court has found Caixabank guilty according to its obligations under Article 1.2 of LEY 57/1968 and sentenced the Bank to refund the full amount of the off-plan deposit plus legal interest from the date the buyers paid to the developer’s account. Legal costs of the First Instance procedure are also imposed on the Bank.
Interesting Statements from the First Instance Sentence
“The plaintiffs filed a Lawsuit against Caixabank, requesting the conviction of the bank according to its responsibility under LEY 57/1968. The plaintiff requested the refund of the total amount paid to the developer’s bank account under the Purchase Contract plus interest & costs.
On 25 October 2004 the plaintiffs signed a Purchase Contract through the real estate agent, Ocean View Properties SL to purchase a property in the development ‘Guadalupe Hills’ from the developer Proverte SL. Caixabank issued a General Guarantee for the amount of two million euros.
In 2008 the plaintiffs filed a Lawsuit against Proverte SL & Ocean View Properties SL. In 2011 the First Instance Court No. 14 of Malaga upheld the Lawsuit cancelling the purchase contract and condemning Proverte SL & Ocean View Properties SL jointly to return to the buyers the amounts paid. The enforcement procedure in 2012 failed as the defendants had no assets for seizure.
The promotor was the policyholder of a General Guarantee for the return of the amounts paid by buyers to Ocean View Properties SL, granted in compliance with LEY 57/1968 and formalized on 25 October 2006.
The Bank opposed the Lawsuit firstly on the grounds that the General Guarantee under which the claim is filed is granted to Proverte SL and Ocean View Properties SL, the latter being the only beneficiary thereof, and secondly on the matter of Res Judicata (a matter already judged) as it says the amounts claimed in the proceedings in the First Instance Court No. 14 of Malaga against Proverte SL & Ocean View Properties SL are the same amounts being claimed in this Lawsuit.
This Court does not agree with either objection. Res Judicata is not applicable because the previous procedure had different defendants. The previous action was for cancellation of contract due to delay and the current action is for the breach of liability of the Bank according to Article 1.2 of LEY 57/1968.
With regards to the General Guarantee and the responsibility of Banks & Savings Banks according to Article 1.2 of LEY 57/1968, these matters are confirmed in the Supreme Court Sentences dated 9 March 2016 & 21 December 2015.
In our opinion the forcefulness of the Supreme Court Sentences confirms the Bank’s commitment under the General Guarantee and liability for the amounts received in the developer’s accounts opened in its branches for which the corresponding Individual Guarantees were not issued.
In accordance with Article 394.1 of the Civil Procedure Act, having fully upheld the Lawsuit the costs must be imposed on the defendant bank”
Possible Provincial Court Appeal
CAIXABANK has 20 working days from the date of notification of the Sentence, which was 9 November 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Malaga.
Although Appeals must be submitted strictly within a 20 working day deadline, we do not normally receive notification of an Appeal or of a firm sentence from the Court until a few weeks after the deadline due to the workload of the Court.
If an Appeal to the Provincial Appeal Court is filed by the Bank it will be necessary for us to file an Opposition to the Appeal on behalf of our client.
