https://www.eyeonspain.com/blogs/costaluz/16398/legal-tip-1401ley-57-1968-won-case-in-provincial-appeal-court-against-banco-popular-for-our-client-who-purchased-an-off-plan-property-from-the-developer-marbella-vista-golf-sl-at-santa-maria-green-hills.aspx?messageType=5
LEY 57/1968 Won Case in Provincial Appeal Court against BANCO POPULAR for our client who purchased an off-plan property from the developer Marbella Vista Golf SL at Santa Maria Green Hills
We were pleased to inform our client recently that we had won their case against Banco Popular in the Provincial Appeal Court.
The client paid their off-plan deposit according to the Purchase Contract to the developer’s bank account at Banco Popular. Banco Popular issued a Bank Guarantee to cover the off-plan deposit.
The First Instance Court upheld our Lawsuit in which we claimed against the Bank Guarantee as the Judge was of the opinion that according to LEY 57/1968 the Guarantee only expires when the First Occupation Licence is issued and that the Licence cannot be understood to have been issued due to administrative silence. The First Instance Court also dismissed the counterclaim made against our client by Marbella Vista Golf SL.
Banco Popular filed an Appeal against the First Instance Sentence. The Provincial Appeal Court has dismissed the Banco Popular Appeal and confirmed the First Instance Sentence.
Re: YOUR CASE AGAINST MARBELLA VISTA GOLF S.L. & BANCO POPULAR ESPAÑOL S.A. PO-xxxx/2010
Please find attached Sentence number xxx/2016 from the Provincial Appeal Court of Malaga Section 4.
I am very pleased to advise you that the Appeal filed by BANCO POPULAR has been dismissed and the First Instance Sentence has been confirmed.
The final paragraphs of the First Instance Sentence delivered on 30 September 2013 stated:
1. “I estimate in full the Lawsuit filed by xxxxx against MARBELLA VISTA GOLF S.L. and against BANCO POPULAR ESPAÑOL S.A. with the following statements:
a) The Contract of Sale signed by xxxxx & MARBELLA VISTA GOLF S.L. dated 18 December 2003 is cancelled due to breach of the seller.
b) I order the defendants, in solidarity, to pay to the plaintiffs xxx,xxx Euros plus legal interest under the terms indicated in Item 4 of this Sentence.
c) Costs are imposed on the defendants
2. I completely dismiss the counterclaim made by MARBELLA VISTA GOLF S.L. against xxxxx and absolve the plaintiffs of all claims against them. The costs of the counterclaim are imposed on MARBELLA VISTA GOLF S.L.”
The final paragraph of the Provincial Appeal Court Sentence delivered on 12 July 2016 and notified on 18 July 2016 states:
“Dismissing the appeal filed by BANCO POPULAR against the Sentence dated 30 September 2013 issued by the Judge of the First Instance Court No. 2 of Marbella, we must confirm that Sentence. We expressly condemn the appellant bank to pay the costs of this appeal”
So the Appeal filed by BANCO POPULAR has been dismissed and the First Instance Sentence is confirmed.
The costs relating to the Appeal are imposed on the Bank.
As per the First Instance Sentence MARBELLA VISTA GOLF S.L. & BANCO POPULAR are jointly & severally liable to refund the total amount of xxx,xxx€. Marbella Vista Golf is sentenced to pay interest at the legal rate from the date of payment (18 December 2003). Banco Popular is sentenced to pay interest at the legal rate from the date of the Court Summons (9 February 2010).
Costs of the First Instance & Appeal are imposed on the defendants.
Interesting statements by the Appeal Court Magistrates are:
“Banco Popular opposed the Lawsuit and appealed on the grounds that they had set a time limit in the Bank Guarantee and that this limit had expired. They also argued that the Guarantee had expired due to the fact that the Final Works Certificate was issued.
However, we share the view of the First Instance Court as the Guarantee only expires when the First Occupation Licence is issued, which in this case has not been explicitly issued by the Marbella Town Hall. The Licence cannot be understood to have been issued due to administrative silence.
The restrictive terms with regards to a pre-determined expiry of the Guarantee provided by Banco Popular are not in accordance with the scope of LEY 57/1968”
BANCO POPULAR has 20 working days from the date of notification of the Sentence, which was 18 July 2016, to comply with the Sentence or to file a Cassation Appeal to the Supreme Court.
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 a Cassation Appeal is filed by the defendant it will be necessary for us to file an Opposition to the Appeal on your behalf.