Legal tip 1313.PROMOCIONES INROAL S.L. - BANK ACTION WON IN PROVINCIAL APPEAL COURT AGAINST BANCO MARE NOSTRUM (CAJA GRANADA) FOR A BUYER AT ANDARAX IN TERQUE, ALMERÍA

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21 Jul 2015 15:07 by mariadecastro Star rating in Algeciras (Cadiz). 9226 posts Send private message

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Legal tip 1313.PROMOCIONES INROAL S.L. - BANK ACTION WON IN PROVINCIAL APPEAL COURT AGAINST BANCO MARE NOSTRUM (CAJA GRANADA) FOR A BUYER AT ANDARAX IN TERQUE, ALMERÍA 
21 July 2015 
 

PROMOCIONES INROAL S.L. - BANK ACTION WON IN PROVINCIAL APPEAL COURT AGAINST BANCO MARE NOSTRUM (CAJA GRANADA) FOR A BUYER AT ANDARAX IN TERQUE, ALMERÍA

Notification sent today to our clients who had reserved off-plan properties from the developer, PROMOCIONES INROAL S.L. at ANDARAX in TERQUE, ALMERÍA, informing them that BANCO MARE NOSTRUM (Caja Granada) had lost its Appeal against the First Instance Sentence.

Re: YOUR CASE AGAINST PROMOCIONES INROAL S.L. & CAJA GENERAL DE AHORROS DE GRANADA (BANCO MARE NOSTRUM S.A.)
PO xxx/2012

Please find attached the Sentence from the Provincial Appeal Court Section 1 in Almería.

I am very pleased to advise you that the Appeal filed by Banco Mare Nostrum S.A. has been dismissed and the First Instance Sentence has been confirmed in its entirety.

The final paragraphs of the First Instance Sentence delivered on 1 September 2014 and notified on 3 September 2014 stated: 

“Agree to archive the procedure in respect of PROMOCIONES INROAL S.L. absolving the entity of all the motions that were made against it, having been renounced by the plaintiff, without the imposition of costs.

Fully estimating the Lawsuit filed on behalf of Mr xxxxx xxxxxx & Mrs xxxxxxx xxxxxxxxx against BANCO MARE NOSTRUM S.A. and condemn this defendant to pay to the plaintiff the amount of xx,xxx Euro plus legal interest at 6% per annum on that amount from the date of the judicial claim until full payment with imposition of costs to the defendant”

The final paragraph of the Provincial Appeal Court Sentence delivered on 7 July 2015 states:

“We dismiss the Appeal filed by BANCO MARE NOSTRUM S.A. against the Sentence 83/2014 of 1 September issued by the Lady Judge of the First Instance Court No. 4 of Roquetas de Mar in Ordinary Trial No. xxx/2012 which resulted in the present Appeal,

1. CONFIRM the First Instance Sentence

2. With the imposition of the costs of this Appeal on the Appellant”


So the Provincial Appeal Court has dismissed the Appeal filed by Banco Mare Nostrum against the First Instance Sentence.  The First Instance Sentence has been confirmed in full.

The costs of the Appeal are imposed on Banco Mare Nostrum.

With regards to the liability of the Bank according to its obligations under LEY 57/1968 the First Instance Judge had stated:

“Assessing the evidence it can be concluded that the account Promociones Inroal S.L. had opened in Caja Granada (today Banco Mare Nostrum) was not called a ‘Special Account’, but the essence of the account and according to the criteria previously noted and maintained by various Provincial Courts it can be recognised as having such character.  It has been established that the promotor was the owner of the said bank account to which the plaintiffs paid their off-plan deposit and secondly that the defendant Bank knew that the amounts entered in that account were amounts to finance housing construction.  Therefore, the defendant Bank cannot be exonerated of the responsibility incumbent upon it by law due to the fact that it had knowledge that the account in question was being used by the promotor for the payment of off-plan housing deposits.

It is proven that the money was credited to an account opened by Promociones Inroal S.L. in the bank known today as Banco Mare Nostrum and that account is a special account according to the meaning of Article 1 of LEY 57/1968.  It must be concluded that the bank is responsible under the Article 2 of LEY 57/1968 for failing to demand from the Promotor the corresponding Certificate of Insurance or Guarantee.

Thus the bank is liable to the buyer for failing to fulfil its obligations according to LEY 57/1968 for amounts paid to the bank for the purchase of off-plan property”


Interesting statements from the Provincial Appeal Court are:


“The recent Supreme Court Sentence dated 20 January 2014 has unified the profuse jurisprudence on this subject and understood it as a pioneering standard for the protection of consumers and users.

In addition it states that the failure by the seller to complete the property by the deadline agreed in the purchase contract, according to Article 3 of LEY 57/1968, empowers the buyer to seek the termination of the contract.

The ultimate accolade of this Law has been confirmed by the recent Supreme Court Sentence of 13 January 2015 which confirms the criteria of the Provincial Appeal Courts.  According to this Sentence if the buyers funds are held in a different account to that specified in the Insurance Policy, this is a matter purely between the insurer and the selling entity.  The fact that the buyers funds are not paid to the Special Account does not preclude insurance coverage, since it is an obligation legally imposed on the seller to ensure the funds are paid in the Special Account.  It is an inalienable and indispensible right of the buyer that the amounts are paid in the Special Account and remain secured.  So an obligation that corresponds only to the seller in accordance with LEY 57/1968 cannot be shifted onto the buyer.  

Therefore the allegations of this Appeal by Banco Mare Nostrum are inconsequential.  The alleged breaches of the developer, such as not stating the nature of the Special Account, are also irrelevant.

And contrary to what is said in the Appeal, it is also immaterial whether the appellant, despite all the above facts, has not itself given this account the official status of a Special Account.  Actually in reality it has that status due to the extent that a security is signed against the account and a Guarantee Line (Linea de Avales) is explicitly linked to that account.

The last plea of the Appeal is the rejection of the order to pay 6% interest.  This plea is also rejected.


For all these reasons, the Appeal is dismissed, with confirmation of the First Instance Sentence and imposing the costs against the Appellant Bank”

Congratulations to clients, Appeal Magistrates in Almería Province and CostaLuz-DeCastro teams



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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