https://www.eyeonspain.com/blogs/costaluz/16166/legal-tip-1390ley-57-1968-won-case-in-first-instance-court-against-caixabank-for-our-client-who-purchased-an-off-plan-property-from-the-developer-interlaken-2003-sl-at-the-casares-del-sol-development.aspx
LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST CAIXABANK FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER INTERLAKEN 2003 S.L. AT THE CASARES DEL SOL DEVELOPMENT
We were extremely pleased to inform our client recently that we had won their case against CAIXABANK in the First Instance Court.
The client paid their off-plan deposit according to the Purchase Contract via their conveyancing Lawyer to the developer’s bank account. The client did not receive an individual Guarantee for their off-plan deposit from the developer, Interlaken 2003 S.L. or from the developer’s bank. Caixabank (formerly Banca Civica) issued a General Guarantee for just over 5 million Euros in November 2003 for the Casares del Sol development. Our claim was against that General Guarantee issued by Caixabank.
Re: YOUR CASE AGAINST CAIXABANK S.A.
PO xxx/2012
Please find attached Sentence number xx/2016 from the First Instance Court No.2 in Estepona.
Your case against CAIXABANK S.A. has been won.
The final paragraph of the First Instance Sentence delivered on 27 April 2016 and notified on 23 May 2016 states:
“Fully upholding the Lawsuit and condemn CAIXABANK S.A. to pay to xxxxx & xxxxx the amount of xx,xxx Euros. Also to pay the interest as expressed in the fourth section of this sentence.
Expressly order the defendant to pay the costs”
So CAIXABANK S.A. is sentenced to refund the total amount of xx,xxx€ plus interest at the legal rate from 5 June 2012 which was the date the claim was sent to Caixabank.
The costs of the First Instance proceedings are also imposed on Caixabank.
Interesting statements from the Judge in the Sentence were:
“The plaintiff filed a Lawsuit asking for Caixabank S.A. to refund the amounts paid on account for the purchase of a property in the urbanization Casares del Sol.
Documentary evidence was provided to show that the plaintiffs paid the amount of xx,xxx€ for the purchase of the said housing. The promotor, INTERLAKEN 2003 S.L. failed to deliver the property within the agreed period and have been condemned to refund the amount in a previous Lawsuit by the First Instance Court No. 4 in Estepona. Interlaken appealed and the appeal was dismissed by the Provincial Appeal Court of Malaga.
In this current Lawsuit the plaintiffs claim the amount was guaranteed by the Bank under a General Guarantee granted by Caixabank to Interlaken for the housing development in accordance with LEY 57/1968.
The defendant bank contests the claim on the grounds that the plaintiffs are not the holders of the general guarantee and therefore do not have the right to claim against it. Furthermore it states that the developer, Interlaken, acknowledged that there was no individual guarantee for the plaintiffs.
The claim of the plaintiffs should be upheld based on the jurisprudence of SAP Sevilla 10 Oct 2013 and the repeated jurisprudence of the Provincial Appeal Court of Alicante.
Further jurisprudence on this matter is from the Supreme Court of 20 January 2015 in which it is clear that it is not necessary to have an individualized guarantee for the buyers, because the failure of the promotor and general guarantor entity cannot harm the consumer. Failure to deliver the individual guarantee is a breach of the two entities that does not exclude their liability to the buyer.
In this case there was a line of guarantees (general guarantee) relating to the urbanization and under that premise the buyers signed the purchase contract.
According to the foregoing the guarantor entity is condemned to refund the amount paid by the buyers.
The sum subject to condemnation will accrue legal interest from the court date requirement of 5 June 2012 and will increase by 2 points from the date of this resolution.
You cannot award interest from the date of the original Lawsuit against Interlaken for contract cancellation because the defendant bank was not party to that action”
CAIXABANK has 20 working days from the date of notification of the Sentence, which was 23 May 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Malaga.
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 an Appeal is filed by CAIXABANK it will be necessary for us to file an Opposition to the Appeal on your behalf.