El blog de Maria

NEW WON CASE AGAINST BANCO CAM (now BANCO SABADELL) FOR PROMOCIONES EUROHOUSE FORTUNA HILLS DEVELOPMENT:

The Orihuela First Instance Court Sentence explains in great detail the liability of Banco CAM according to its obligations under LEY 57/1968 for the off-plan deposits paid accounts opened by the developer in Banco CAM.

Importantly the Sentence states that even if a buyer signed the agreement to accept partial future payments from the bankrupt developer, the inalienable rights granted to the buyer by LEY 57/1968 are not affected.

Also the Sentence quotes several examples of Case Law in favour of buyers from the Provincial Appeal Court of Alicante.

Particular points of interest stated by the Judge in the First Instance Sentence are:


“The truth is that an account was opened in which the amounts were paid by purchasers for the purchase of homes and it has not been explained clearly what was done with the amounts paid into the said account.

As CAM opened accounts and received the amounts paid by the purchasers there arises a legal duty to ensure that these amounts were guaranteed by an insurance policy or bank guarantee.  Having breached this legal duty the legal liability of the entity is generated.

However in this case its liability may only be extended to the amounts actually entered into accounts at its branches.

It should be noted that Article 1 of Law 57/1968 in an effort to protect purchasers of homes, also involved financial institutions in which those accounts are opened, establishing an obligation for them, which is to require UNDER ITS RESPONSIBILITY (bajo su responsabilidad) that the developer has guaranteed the repayment of the amounts paid in advance to its accounts.

This does not mean that it has to be the account holding banks liability to issue the Guarantees itself, as the guarantor may be another entity.  But the term ‘under its responsibility’ makes it liable to buyers where no security has been provided.

In other words, the bank should not allow the opening of Special Accounts or accepting the deposits without first ensuring that the developer has assumed a legal obligation to ensure repayment of the amounts paid in advance by buyers.  If the Bank fails in its legal duty then it is liable for the damages that failure causes to the buyers who may otherwise not be able to obtain repayment of the amounts advanced.

In conclusion I wish to address the potential impact of the bankruptcy proceedings of the corporation PROMOCIONES EUROHOUSE and the existence of a recognised credit for the plaintiffs in the Commercial Court.  In this regard, the jurisprudence of our Provincial Court understands that the agreement by the buyer to any repayment proposals offered by a bankrupt developer does not extinguish the Guarantee and the obligations therein.

In this case, it has not been proven in any way that the homes are constructed, so the frustration of the purpose of the Purchase Contract is clear.

In response to the arguments put forward we partially estimate this Lawsuit in its alternative claim, ordering the defendant company, Banco CAM, to refund the amounts paid on account of the purchase price of housing and entered into the accounts of the entity to the sum of XXX,XXX Euro”

Beach of Aguilas, Murcia, Eastern Spain, at facebook.com