Legal tip 1311. NEW! HERRADA DEL TOLLO S.L. - BANK ACTION WON IN PROVINCIAL APPEAL COURT AGAINST SGR & BBVA FOR BUYERS AT RESIDENCIAL SANTA ANA DEL MONTE IN JUMILLA

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17 Jul 2015 16:22 by mariadecastro Star rating in Algeciras (Cadiz). 8857 posts Send private message

Legal Questions? Speak to Maria Direct

HERRADA DEL TOLLO S.L. - BANK ACTION WON IN PROVINCIAL APPEAL COURT AGAINST SGR & BBVA FOR BUYERS AT RESIDENCIAL SANTA ANA DEL MONTE IN JUMILLA

Notification sent today to our clients who had reserved off-plan properties from the developer, HERRADA DEL TOLLO S.L. at RESIDENCIAL SANTA ANA DEL MONTE in JUMILLA, informing them that SGR had lost its Appeal against the First Instance Sentence and our Appeal against the part of the First Instance Sentence absolving BBVA had been upheld.


Re: YOUR CASE AGAINST BANCO BILBAO VIZCAYA ARGENTARIA S.A. (BBVA) & SOCIEDAD DE GARANTIA RECIPROCA DE LA COMUNIDAD VALENCIANA (SGR) – PO xxx/2012

Please find attached Sentence number xxx/15 from the Provincial Appeal Court Section 9 (Elche) in Alicante.

I am very pleased to advise you that the Appeal filed by SGRCV has been dismissed and your Appeal against the part of the First Instance Sentence absolving BBVA has been upheld.

The final paragraphs of the First Instance Sentence delivered on 21 February 2014 and notified on 13 March 2014 stated:


“I estimate the Lawsuit filed on behalf of xxxxxx & xxxxxxx against SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA and condemn the defendant, SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA to pay Messrs xxxxxx the sum of xx,xxx Euro with legal interest from 19 April 2007 until the return of the funds with costs expressly imposed on the defendant.

And I entirely dismiss the lawsuit filed on behalf of xxxxxx & xxxxxx against BBVA and I must acquit and absolve BANCO BILBAO VIZCAYA ARGENTARIA S.A. of all claims made against it with the imposition of costs on the plaintiff”


The final paragraph of the Provincial Appeal Court Sentence delivered on 12 May 2015 states: 


“We dismiss the Appeal filed by SGRCV and estimate the Appeal filed by xxxxxx & xxxxxx, against the Sentence of the First Instance Court No. 6 of Orihuela dated 21 February 2014, partially reverse that Sentence in particular the acquittal of BBVA, now jointly condemned with SGRCV to pay Messrs xxxxxx the amount of xx,xxx€ plus legal interest from the date of payment of that amount until full repayment.

Confirm the Sentence appealed in all other aspects”

So in the First Instance Court, SGR was sentenced to refund your off-plan deposit with the addition of legal interest from the date of payment of the deposits until full payment.  Your costs of the First Instance Proceedings in relation to the part of the action against SGR were imposed on SGR.

BANCO BILBAO VIZCAYA ARGENTARIA S.A. was acquitted and absolved of all claims against it.  Its costs calculated according to the amount claimed against it were imposed on you.

However, the Provincial Appeal Court has dismissed the Appeal filed by SGRCV and upheld your Appeal against the part of the Sentence relating to the acquittal of BBVA.

So BBVA are now jointly and severally liable with SGRCV for the refund of xx,xxx€ to you and BBVA’s costs which were imposed on you by the First Instance Court are now void.

In relation to the Costs for the part of the action against BBVA the Provincial Appeal Court has ruled that each party will pay its own costs.

In all other aspects the First Instance Sentence has been confirmed in full.

The costs relating to the SGRCV Appeal and to your Appeal against BBVA are not imposed on any party.  Therefore, each party will pay its own costs in relation to the Appeal.

Interesting statements from the Provincial Appeal Court are: 

“Defaults or internal processing errors between the promotor and guarantor entity, for example, the failure of the developer to submit buyers Purchase Contracts to the insurer for incorporation into the security issued for the purpose of issuing the relevant individual guarantees cannot be attributed to the buyer.  There can be no harm to the buyers due to the neglect attributable to the insurer due to failure in its monitoring obligations, especially under this kind of special law such as LEY 57/1968.

It should be added that that the Order of 29 November 1968 article 4b, authorises the insurer to ‘verify during the period of insurance, documents and data that relate to obligations assumed by the insurer, particularly in respect of movements in the Special Account’.

Therefore the Appeal filed by SGRCV is dismissed.

With regards to the liability of the developer’s bank, BBVA, the failure of buyer’s funds being credited to the Special Account cannot be an obstacle to the responsibility of the Bank in its function as guardian of the Law, LEY 57/1968.  So this co-defendant, BBVA, is also responsible with SGR for the funds paid to the developer’s account in its branches by Messrs xxxxxx”



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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17 Jul 2015 17:23 by broph Star rating. 139 posts Send private message

This is brilliant news, and a welcome relief to all of us waiting for judgement in our individual cases against Banks.

Your legal teams should be very proud , not only of the determination and hard work taken to achieve this type of victory but , also for upholding the values of the law that is there to protect ordinary people who placed their trust together with their large sums of money in the system.

Maria, Given these many favourable court results , why oh why is the Legal system allowing the Banks and / Or Developers to carry on delaying the inevitable instead of forcing them to accept their responsibility at a much earlier timeframe.

well done all

 


This message was last edited by broph on 17/07/2015.



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17 Jul 2015 19:21 by M11Block Star rating. 174 posts Send private message

Well done Maria and team. Each case you win gives us more hope that we will be successful with our case. We look forward to our case being heard in November and wish good luck to all other clients awaiting their Court dates. Rosemary  





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17 Jul 2015 23:30 by ads Star rating. 3092 posts Send private message

Well done to all concerned.

Successes that recognise all articles of existing law relating to Ley 57/68 cannot nor should be overlooked by the judiciary and we can only hope that this will assist in gaining consistency of rulings across the many regions in Spain.

I agree with Broph's observations re banks/insurers being made accountable in a more timely manner given the growing precedence, but I would be grateful to know what legal reasons were given for denying the award of costs in this case, given the number of legal procedures required before obtaining a  successful ruling.

Many thanks for the detail Maria and well done Costaluz. smiley





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20 Jul 2015 15:43 by mariadecastro Star rating in Algeciras (Cadiz). 8857 posts Send private message

Legal Questions? Speak to Maria Direct

En cuanto a las costas, consideramos que existen serias dudas de derecho derivadas de (1) la necesidad o no de certificación individual de aseguramiento y (2) depósito específico de las cantidades en la cuenta especial  correspondiente, para el nacimiento de la obligación de los avalistas de devolver las cantidades anticipadas, de hecho existe jurisprudencia menor contradictoria sobre el  particular, incluso entre las propias secciones de la Audiencia Provincial de Alicante.

Por lo que no procede hacer especial pronunciamiento en costas en este proceso en  ninguna de las dos instancias.

In regards to costs we consider that there are serious doubts of law arising from (1) the need or otherwise for individual certification of specific deposit insurance and (2) payments of the same into an special account for the birth of the obligation of the gusrantoor in order to return the advancedpayments , in fact there is  contradictory jurisprudence on the subject, even among their own sections of the Provincial Court of Alicante. It is not appropriate to make a special statement in costs in this process in any of the two instances .

Despite statements above Supreme Court has already stablished legal doctrine on:

- No need of individual certificate

- No need of deposit into a special account.


This message was last edited by mariadecastro on 20/07/2015.

_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



Like 0      
20 Jul 2015 17:32 by ads Star rating. 3092 posts Send private message

Thank you Maria. What is legally required to ensure consistency from provincial court rulings ? Does this require two identical rulings from the SC on aspects such as this before judges HAVE TO comply with their directives? In the interim does this then leave the innocent client at risk of a legal lottery? Where does judicial moral authority come into the equation to make Banks/Insurers FULLY accountable, so that judicial rulings act as adequate disincentive to increasing instances of Bank/Insurers "playing the system " of appeals and abusive delays, in full knowledge that inconsistencies relating to the award of costs and major delays from ever increasing litigation, leaves the client at further financial risk? Do barristers have the opportunity to bring these uncomfortable realities to the attention of the judge and fight for "moral authority" in this regard? This inconsistent judicial approach without due regard to moral authority which favours the "transgressors"  (i.e. the financial institutions that failed to comply with all articles of existing law from the outset) is sadly bringing the Spanish Justice System into question is it not?

 

 

 

 


This message was last edited by ads on 20/07/2015.



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