El blog de Maria

Our clients were extremely pleased to hear recently that we had won their LEY 57/1968 Bank Action case against Banco Sabadell in the Provincial Appeal Court.

No Individual Guarantee

They did not receive an individual Guarantee from the developer, Casa Mediterranea Construcciones S.A or from the Bank to which their off-plan deposit was paid, BANCO GUIPUZCUANO (now BANCO DE SABADELL S.A.)

First Instance Court Sentence

In the First Instance Sentence the Judge stated:

“The claimant signed a purchase contract with the entity Casa Mediterranea Construcciones S.A. on 10 August 2004 for the purchase of a home in the development Residencial Pinada del Rio.

The off-plan deposit was paid to the Special Account of the developer at Banco Guipuzcuano (now Banco Sabadell).

The Bank argued that it was not a Special Account.  However, during questioning at the Trial the developer confirmed that the Bank had knowledge that the account was used for the receipt of off-plan funds.  From documentary evidence relating to the account it is clear that payments into the account were referenced as being for specific housing types at Pinada Del Rio.

Therefore it is clear that the funds were from buyers for off-plan purchases.  If the Bank did not make adequate efforts to manage control of the said account then it cannot claim that lack of diligence against a third party”

The Appeal

The Bank appealed using 3 main arguments. 

Firstly the Bank stated that the action should be dismissed for Res Judicata (a matter already judged).  On this subject the Bank states that the claimant originally took an action for contract cancellation against the developer in 2007 with a Sentence being issued in 2008 cancelling the purchase contract and condemning the developer to refund the off-plan deposit.  Due to its financial situation the developer never paid.  The Bank is of the opinion that the buyer cannot then make a claim against the bank in relation to the same matter.

The Appeal Court Magistrates said that the previous action was an action for contractual resolution and not a claim against a guarantor according to LEY 57/1968.  Therefore, Res Judicata does not apply.

The second appeal argument was that the time limit for this type of claim is 2 years and that the buyers had far exceeded the allowable time limit.  The Appeal Court Magistrates dismissed this argument as the time limit for these types of actions according to Article 1964 of the Civil Code is 15 years.

Thirdly the bank alleged violation of Articles 1 & 2 of LEY 57/1968 including unjust enrichment due to the previous action against the developer.

Important Statement from the Appeal Court Magistrates

“In conclusion and as is clear from the Supreme Court Sentence dated 21 December 2015 reiterated by the Supreme Court Sentences of 9 March & 17 March 2016, Banco Sabadell is responsible, as clearly explained in the First Instance Sentence, because it had an obligation to identify and protect the buyer’s income paid into the developer’s account opened in its branches.  The Bank also alluded to the risk of unjust enrichment due to the claimants already having won a previous case against the developer, however firstly, as was stated in the Lawsuit, it has not been possible to obtain the refund from the developer, secondly, the Banks own defence to the Lawsuit confirmed that the developer is in liquidation and, thirdly, the Bank did not make the argument of unjust enrichment in its original defence to the Lawsuit, therefore this argument must now be rejected as new arguments cannot be considered in an Appeal.  As to the costs of this appeal, they must be imposed on the Bank”

Possible Supreme Court Appeal

BANCO SABADELL has 20 working days from the date of notification of the Sentence, which was 9 December 2016, to comply with the Sentence or to file a Cassation Appeal to the Supreme Court.

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 a Cassation Appeal to the Supreme Court is filed by the Bank it will be necessary for us to file an Opposition to the Appeal on behalf of our client.

Some houses in Pinada del Rio, Alicante, Eastern Spain