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El blog de Maria

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

Legal tip 1418. Case won in the Provincial Appeal Court against BANCO SABADELL, SGR & BBVA for an off-plan property from Herrada del Tollo at Santa Ana del Monte
14 December 2016 @ 15:05

Our clients were very happy when we informed them recently that we had won their LEY 57/1968 Bank Action case against Banco Sabadell, SGR & BBVA in the Provincial Appeal Court.

No Individual Guarantee

They did not receive an individual Guarantee from the developer, Herrada del Tollo or from the Banks to which their off-plan deposits were paid, BANCO SABADELL & BBVA.

First Instance Court Sentence

The First Instance Sentence found Banco Sabadell & BBVA responsible only for the amounts actually paid to the developers accounts opened in their branches.  Banco Sabadell filed an Appeal against the First Instance Sentence.

SGR & BBVA had also issued General Guarantees to the developer; however the First Instance Judge acquitted both entities of any responsibility according to the General Guarantees.  We filed an Appeal on our client’s behalf regarding the acquittal of SGR & BBVA under the General Guarantees.

The Appeal

The Provincial Appeal Court has upheld our Appeal and dismissed the Appeal filed by Banco Sabadell.

So now all 3 entities, BBVA, BANCO SABADELL & SGR are condemned in solidarity for the full amount of the off-plan deposit.

There was no imposition of costs in the First Instance Sentence, and that remains the case, so each party will pay its own costs.

There was no imposition of costs for our Appeal, so each party will pay its own costs for the part of the procedure relating to our Appeal.

The costs of the Appeal filed by Banco Sabadell are imposed on the Bank.

Possible Supreme Court Appeal

BANCO SABADELL, BBVA & SGR have 20 working days from the date of notification of the Sentence, which was 18 November 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.

Castle of Jumilla, Murcia, Eastern Spain

Like 1


briando55 said:
15 December 2016 @ 00:54

I hope the poor people who paid the deposit have anything left after all the costs are added up. What a disgrace.

Keith110 said:
15 December 2016 @ 12:13

The banks will pay the full amount of the off-plan deposit plus interest at the legal rate from the date of payment to the developer's account. Legal costs for the First Instance procedure and part of the Provincial Appeal Court procedure will then be deducted and the balance sent to the client.

The interest should easily cover the legal costs. So even after deducting the legal costs the client will receive the full principal plus some interest.

The off-plan deposit was paid in 2006 when the rate of exchange was £1 = approx 1.45€. When the client receives the money back it will be at the current rate of approx £1 = 1.20€. So they will also have around a 20% benefit due to the exchange rate.

For example and to make calculations easy, lets say the deposit amount was 100,000€.

100,000€ paid in 2006 at 1.45€ to the £ would be around £70,000.

100,000€ refund plus 10 years legal interest of approx 40,000€ means the total refund would be around 140,000€. The legal costs for the First Instance and Appeal would be around 30,000€.

So in the above scenario the client would receive around 110,000€ which at today's exchange rate would be around £90,000.

So paid in 2006 approx £70,000
Received in 2016 approx £90,000

So even though costs were not imposed on the banks the client would receive in sterling around 25% more than what they originally paid.

The above figures are based on an example amount of 100,000€ which is not the exact deposit of the client in this case. But it does provide an illustration of the outcome in such cases.

If the Banks did decide to submit a cassation appeal to the Supreme Court then if they lost the Appeal the costs of the Supreme Court appeal would almost certainly be imposed on the Bank.

briando55 said:
15 December 2016 @ 12:47

Thanks for the information.

From the client point of view, according to law they should receive the deposit back, plus the interest (and the exchange rate does not belong to the system because it can work either way Keith.

The costs for taking the action, if found in someone's favour, should be imposed on the losing party. The incentive to have some costs waved means the bank have an interest in prolonging the case and it also doesn't matter much to the lawyer because they will be paid anyway. In fact the more procedures there are the more fees are taken.

I still think it's a disgrace really, but thanks for trying to cheer us up!!

Keith110 said:
22 December 2016 @ 10:41

Yes, I understand that the exchange rate does not belong to the system.....but at the moment is very much in favour of the off-plan buyer receiving the refund at this time.

Costs are normally imposed on the losing party, however Article 394 of the Spanish Civil Procedure Act does allow Judges and Magistrates not to impose costs on the losing party in cases where they feel there was conflicting jurisprudence and doubts regarding the issues being ruled upon. It is true that before the Supreme Court rulings in late 2015 & early 2016 there was conflicting jurisprudence and legal doubts regarding the liability of Banks and Insurers according to LEY 57/1968.

Although we have believed in the banks liability since 2009, the Supreme Court has only ruled specifically on this issue in the last 12 months. Therefore, Judges ruling on Lawsuits filed prior to the Supreme Court rulings in late 2015/early 2016 could opt for not imposing the costs on the bank.

However, this does not happen in all regional jurisdictions. Alicante seems to be the area which is reluctant to impose costs on the Bank or Insurer due to this reason.

For Lawsuits and Appeals filed after the Supreme Court rulings of late 2015/early 2016 there should be no doubt about imposing the costs on the Bank or Insurer

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