WON CASE in FIRST INSTANCE COURT AGAINST BANCO POPULAR FOR OUR CLIENTS WHO PURCHASED OFF-PLAN PROPERTIES FROM THE DEVELOPER HUMA MEDITERRÁNEO S.L. AT ALMANZORA COUNTRY CLUB 

We were extremely pleased to inform our clients today that we had won their case against BANCO POPULAR in the First Instance Court.

The clients paid their off-plan deposits to the developer’s account at BANCO POPULAR.  The clients did not receive individual Guarantees for their off-plan deposits from the developer, Huma Mediterráneo S.L. or from BANCO POPULAR, the Bank to which their off-plan deposit was paid and the Bank that signed a Guarantee Line with the developer.

Re: YOUR CASE AGAINST BANCO POPULAR ESPAÑOL S.A.
PO xxxx/2013

Please find attached the Sentence No. 30/2016 from the First Instance Court No.8 in Murcia.

Your case against BANCO POPULAR ESPAÑOL S.A. has been won.

The final paragraph of the First Instance Sentence delivered on 22 February 2016 and notified on 23 February 2016 states:

“Substantially upholding the Lawsuit filed on behalf of xxxxx & xxxxx, xxxxx & xxxxx, xxxxx & xxxxx against BANCO POPULAR ESPAÑOL S.A., I must condemn the BANCO POPULAR ESPAÑOL S.A. to pay the amounts actually deposited by the plaintiffs in the developers account in Banco Popular on account of the anticipated price for the acquisition of several homes of Huma Mediterraneo S.L., ascending to the conviction of the total amount of xxx,xxx€, plus interest at the rate of 6% per annum as agreed in the Guarantee Policy dated 12 May 2005, starting from the delivery date of the advance payments until payment in full, without the imposition of procedural costs on the defendant”

So BANCO POPULAR ESPAÑOL S.A. is sentenced to refund the total amount of xxx,xxx€, plus interest at the rate of 6% per annum from the date you paid to the developer’s bank account until complete repayment.

There was no imposition of legal costs; therefore each party will pay its own costs.

Interesting statements from the Judge in the Sentence were:

“Banco Popular granted Huma Mediterráneo as of 12 May 2005, two general guarantees for the repayment of amounts paid in advance by buyers plus interest.  In this case the buyers paid to the developers account opened at Banco Popular.

However, as a result of planning irregularities and the declaration of bankruptcy of Huma Mediterráneo S.L., the buyers requested termination of the purchase contract and had claims recognised in the bankruptcy procedure.

Banco Popular claims lack of capacity to be sued as it never issued a guarantee for the funds, individually or collectively.  The bank states that neither the contract nor the law LEY 57/1968 establishes this obligation.  It states that there was no evidence to show that the developer had requested it to issue individual guarantees to the buyers.

If there were doubts regarding the liability of the Bank then the Supreme Court Sentence of 21 December 2015 has set as case law as follows: ‘In the house sales governed by Law 57/1968 credit institutions that receive income from buyers into the promoters account without requiring the opening of a special account and corresponding warranty/guarantee are liable to buyers for the total of the amounts anticipated by the buyers and deposited in the account or accounts that the developer has opened in this organization’.

Nor is it an irrelevant fact of the economic benefit accruing to banks to arrange these transactions, since the obligation to deposit the advance payments into an account opened for that purpose in that entity as consideration involves not only the price of the guarantee, but also the gain or advantage derived from the financing of the property development.

In consideration of this doctrine is to be understood that it is the responsibility of the bank receiving the funds into the developer’s account to require the developer to constitute a specific individual guarantee to cover the amounts paid in advance by each buyer and the lack of requirement by the bank for the developer to issue such individual guarantees may have an impact on the purchaser if the developer breaches its obligations to construct the property.

It is true that this is not a breach of obligations by the bank guarantor, but it is aware from the outset that the granting of the guarantee line creates a legal relationship that produces effects towards a third party, a third party which has the status of consumer, who cannot be adversely affected by the violation of the duties by any of the contracting parties, formed by two business entities.

In short, Banco Popular awarded Huma Mediterraneo a guarantee line for the provision of individual guarantees to various individual homebuyers in the promotion Almanzora Country Club, guaranteeing the amounts paid on account by the buyers of these homes. And then the buyer’s funds were entered in an account of the entity in the name of Huma Mediterraneo SL without the Bank making any inquiry about the reason why any individual certificate of guarantee is not requested for the home buyers.  Therefore, the defendant Bank must respond to the applicants for the sums of money given to the seller as advance payments for the purchase of housing and deposited into the account. 

The defendant bank is ordered to pay interest at 6% as agreed in the General Guarantee Policy issued to Huma Mediterraneo dated 12 May 2005.

With regards to legal costs it can be seen in this case that there were doubts in law regarding the liabilities of the Bank according to LEY 57/1968, since both at the Statement of Defence (26 February 2014) & Preliminary Hearing (17 November 2014) the Supreme Court Sentences dated 30 April, 23 September & 21 December 2015, which now definitively clarify this subject, had not been issued.  Therefore, there is no imposition of legal costs”

BANCO POPULAR has 20 working days from the date of notification of the Sentence, which was 23 February 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Murcia.

If an Appeal is filed by BANCO POPULAR it will be necessary for us to file an Opposition to the Appeal on your behalf.

Costs awarded against Banco Popular in your case posted 22/02/16 but not this one

Same Court, presumably based on same legal precedence and Supreme Court decisions-decision on costs perverse!

Surely it will be Appealed   

this would be good news if they HAD MONEY back, not won a case, we have all won cases, but never seen any MONEY,,,,,,,over a 1000 people got conned out of 40,000 each !!!!!!   how much has been returned PEANUTS !!!

Money will be back soon. Step by step

So why did this case not get legal costs but the previous case did? 

I know that it is a long time ago, perhaps sometime in 2005 but what was the date that the Court closed down ACC?

The other day someone said it was in October and another person said November 

How long before they closed it down did the locals know about the planning problems?

Locals allways knew about planning permission, the solicitor we first used in vera, told us the first phase was to get the mayors approval ( bribe him) then start building, then go for local planning (same bribe again) then full approval, but a socialist government won election and all the bribes stopped,  the mayor and cronies got arrested , huma got stopped building and started hinding our deposits,  rest is history......".the sting" was on...

Regarding the issue of costs:

In the previous Sentence you mention in which costs were awarded against Banco Popular the Judge stated:

"The legal questions raised by the Bank at the Preliminary Hearing (4 November 2015) regarding the Supreme Court Sentence dated 5 February 2013 were already superseded by the Supreme Court Sentences dated 30 April & 23 September 2015 which definitively clarified any dispute concerning this matter but despite this the defendant bank decided to continue the procedure”

So the Judge explains that in the above case the Preliminary Hearing was held on 4 November 2015 and at that Hearing the Bank attempted to argue its case according to a Supreme Court Sentence dated 5 February 2013, which in some ways could be deemed as favourable to the Banks argument.  However the Judge says that those arguments were no longer valid because the Supreme Court Sentence of 5 February 2013 was already superseded by Supreme Court Sentences dated 30 April & 23 September 2015 which definitively clarified any arguments being raised by Banco Popular.  However Banco Popular still decided to continue the procedure.  Therefore the Judge imposed costs on the Bank.

However in this case in which costs were NOT imposed on the Bank the Judge explains:

"With regards to legal costs it can be seen in this case that there were doubts in law regarding the liabilities of the Bank according to LEY 57/1968, since both at the Statement of Defence (26 February 2014) & Preliminary Hearing (17 November 2014) the Supreme Court Sentences dated 30 April, 23 September & 21 December 2015, which now definitively clarify this subject, had not been issued.  Therefore, there is no imposition of legal costs”

In this case at the time the Bank submitted its written defence to the Court (26 Feb 14) and at the date of the Preliminary Hearing (17 Nov 14) the Supreme Court Sentences dated 30 April, 23 September & 21 December 2015, that definitively clarify the issue of banks liability according to LEY 57/1968, were not issued.  Therefore the Judge is of the opinion that, at the time, the Bank had reasonable grounds to argue this case due to some conflicting jurisprudence on the subject of banks liabilites according to LEY 57/1968 during 2013 & 2014.

Article 394 (item 1 & 2) of the LEC (Civil Procedure Act) states:

Article 394. Orders to pay costs in the first instance

1. In declaratory proceedings, the costs in the first instance shall be imposed on the party who has had his pleas rejected unless the court considers and reasons that the case may pose serious de facto or de iure doubts.
For the purposes of ordering a party to pay costs, in order to verify that the case is legally doubtful, the jurisprudence of similar cases shall be taken into account.

2. If the upholding or dismissal of the pleas is partial, each party shall pay the costs involved in his proceedings and the common costs shall be shared equally, unless there are reasons to impose the costs on one of these as he litigated recklessly.

Thank you for that explanation.   Presumably if the bank appealed against this case and lost then they would have to pay both sets of legal costs for the appeal as the bank is now aware of the supreme courts verdict. 

Keith, Maria,

now that jurisprudence has more clearly defined the banks' responsibilities, do you envisage a scenario like the PPI mis-selling scandal here in the UK where banks will be forced to set aside funds to cover their liabilities and accept that they must repay where it is beyond doubt that the money was paid into an account for an off plan property that has not been built?  No court case required?

What is the PPI mis-selling scandal? Please tell me a bit more about that

Hi Maria

The PPI scandal relates to Payment Protection Insurance which banks and other financial bodies sold to protect a customer's credit card or mortgage or loan repayments in case they lost their jobs.  In many cases the insurance was not asked for and in others the banks made it a condition of the loan/credit card/mortgage agreement.  Then when people tried to claim, the insurance would not pay out.  It was found that the insurance had been mis-sold and customers were entitled to a refund of their premiums.  Banks in the UK have had to make multi million pound provision for the last 4 or 5 years in order to meet the PPI claims.  People can easily request a refund and many are being repaid thousands.  See here for more information http://www.moneysavingexpert.com/reclaim/ppi-loan-insurance

There is no court case and the reclaim process is reasonably straight forward.  There is a whole industry been built up around the PPI claims with legal teams offering to help people make claims and some getting a bad reputation for telephone cold calling to see if people want to make a claim!

It would be great to see pressure on the banks in Spain to make a similar provision for Ley 57/68.

I think that what I have been told previously though is that this won't happen in Spain because each case has to be considered on its merits.  In the UK, the PPI reclaims work because UK law uses a system of precedents. It would be great if you could tell us that the new Jurisprudence handed down by the Tribunal Superior means that cases will be settled more quickly.

Congratulations on your enviable successes.

ILostMySensaHuma (almost 11 years now and still counting - we have a case number but no date yet in the court in Totana)

Court Decision granted in favor of the buyers in Almanzora Country Club (Huma Mediterraneo). Murcia Appeal Court confirmed ruling against Popular Bank.

The good news continues for those affected by the purchase of properties at the Almanzora Country Club. The Provincial Appeal Court of Murcia, in a judgement issued on 10^th of March 2016, and recently notified to our office, has confirmed the judgment we won before the court of First Instance number 4 of Totana, in the Ordinary Proceedings number 494/13.

The Provincial Court confirmed Bank Popular as the entity that had:

-opened the account in which buyers deposited their payments,

-they also granted several general bank guarantee lines in the same complex,

 and so should return buyer’s money paid to the developer Huma Mediterraneo, plus legal interest from the time when the payment took place, even though the consumers did not have an individual guarantee, all under the Law 57/68.

Whilst it is true Law 57/68 has been repealed with effect from the date of 1^st January 2016, by the Law 20/2015, regarding management, supervision and solvency of insurance and reinsurance companies, the new law change can not affect those affected by Almanzora Country Club, since the events occurred prior to the entry into force of the new law, and

 certain consumer’s rights cannot be waived, as per the general principle of non-retroactivity, noted in Article 2.3 of the Civil Code which states that "the laws have no retroactive effect unless stated otherwise”.  We therefor understand that those affected can claim under the Law 57/68.

In the court case to which we refer above, most of those affected have already had their money returned, since we had asked for the provisional execution of the judgment obtained against the Popular Bank, thereby recovering about € 300,000.

So, if you bought a property off plan in the complex Almanzora Country Club (ACC) or any other promotion, and they have not handed over the property, nor returned the money paid, you should know that you can claim for the money back from the bank or insurance company that signed the collective bank guarantee or insurance policy (even if you do not have an individual guarantee).

If there are no such guarantees or group policy, you could still claim back against the bank who opened the special account for the promoter into which the amounts paid by the buyers were deposited.

Do not hesitate, now is the perfect time to claim, if you have lost money buying a property off plan in Spain, our firm will help you, so contact us.

The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.

Carlos Baos (Lawyer)

White Baos Lawyers

Congratulations Carlos! So good justice is being made and trust in our legal and judicial system is being reinforced through this

Cheers!

María

Dear Maria, Thank you for your message. As you know for law firms like yours and ours is really nice to be able to get the money back for the people affected that though that they will never get any money back, being these kind of court decisions an evidence that the court system sometime works.

All the best,

Carlos

No they have not got MONEY........they have won a case......just that,,,,,,,NOT MONEY

No, Jackb, you are not right, as said to you in another post,  all the clients who started the joint legal action less one of them, decided to ask for the provisional execution of the first instance court decision, which now has been ratified by the appeal court. And all those have the money paid back, now the court will need to fix the interests and legal costs to be paid by the Banco Popular. So fortunately they have a good court order in their favor plus the money. Best regards,

So this original case that was won back in February but legal costs were not awarded - has the bank appealed against this decision ?  

Has anyone had any feedback from the recent cases won on here from solicitors regarding any appeals from the Banks, or getting money returned?

We have not heard if the bank are going to lodge an appeal with the supreme court or not. Their 20 working days are now up for them to do this so we should hopefully be hearing soon