El blog de Maria

The final paragraph of the Provincial Appeal Court Sentence delivered on 16 November 2015 and notified on 26 November 2015 states:


“That dismissing the Appeal filed on behalf of BBVA and fully upholding the arguments posed by the legal representatives of the plaintiffs against the Sentence dated 22 April 2015 from the First Instance Court No. 5 of Orihuela, we revoke that Sentence and instead fully uphold the alternative claim in the Lawsuit, condemning BBVA to pay xx,xxx Euro to xxxxxxx xxxxxx & xx,xxx Euro to xxxxxxx xxxxxxx, plus legal interest on these amounts from the date of payment.  The costs incurred in the First Instance are now imposed on the defendant, as well as the costs for its Appeal.  No special statement regarding the costs of the challenges/arguments of the plaintiff”


So the Appeal filed by BBVA has been totally dismissed and the Appeal we filed on your behalf has been fully upheld.

BBVA is condemned to refund you the full amount claimed of xx,xxx Euro and not just xx,xxx Euro as per the First Instance Sentence. 

You only had proof of payment to the BBVA account for the lower amount stated in the First Instance Sentence.  However, in the Appeal we argued that at the First Instance Trial the bank representative when under interrogation admitted to the fact that BBVA had issued a Line of Guarantees (General Guarantee) to Promociones Eurohouse 2010 S.L.  The Appeal Court magistrates agreed with our arguments, revoked the First Instance Sentence and condemned BBVA to pay you the full amount as stated in our alternative claim in the Lawsuit including amounts for which you had no proof of payment to the BBVA accounts.

BBVA must also pay interest at the legal rate on the full amount from the date you paid to the developer.

The costs of the First Instance Procedure are now imposed on BBVA.

The costs of the BBVA Appeal, that was dismissed, are also imposed on BBVA.

Although they were upheld, there was no pronouncement of costs relating to our challenges/arguments in the Appeal, therefore each party will pay its own costs for this part of the procedure.

It is a very detailed Sentence quoting extensively from other similar cases & quoting much Case Law.

Interesting comments by the Magistrates are:

“The doctrine expounded in different resolutions outlined in our Sentence serve to dismiss the BBVA appeal.

With regards to the challenges/arguments made by the legal representatives on behalf of the plaintiffs to condemn BBVA to refund all amounts paid to the developer and not just those deposited in the accounts of BBVA with costs to be imposed on the defendant, these arguments must be upheld.

Firstly, it has been sufficiently demonstrated that the total amounts claimed were paid to the developer and this is also stated in the Sentence of the Commercial Court No. 3 of Alicante dated 18 June 2010 which cancelled the Purchase Contracts and condemned the developer to refund the total amounts paid on account of the off-plan purchase.

Secondly, the Engagement and concession of guarantees policy dated 11 July 2000 in its first clause states that the bank agrees to provide guarantees for the obligations of Promociones Eurohouse 2010 S.L.

This duty to guarantee the repayment of buyers off-plan deposits imposes on the guarantor in a compulsory and irrevocable way, as the Supreme Court stated in its judgement of 15 November 1999, so that the interpretation of the terms of the guarantee must always be performed for the full and complete protection of the buyer, given the protective nature of the Law.

Documentary evidence exists from the plaintiffs to confirm the full amount paid to the developer which was also the subject of a Court Sentence against the developer.  But it has also been proven that the amounts paid in compliance with the obligation of the Bank under article 1.2 of LEY 57/1968, do not correspond to the total amounts paid by the buyers.  This is because for part of the money paid by the buyers there is no documentary evidence of it having been deposited in the accounts of BBVA.

However, we understand that this is not an obstacle to excluding the liability of the Guarantor Bank.  On the one hand, because the terms of the policy issued by BBVA to Promociones Eurohouse outlined its commitment to grant the guarantees, and secondly because both LEY 57/1968 itself and the First Additional Provision of the Law on Construction & Planning, requires the repayment of amounts paid on account.

The upholding of the challenges and arguments by the plaintiffs involves the full estimation of the Lawsuit in the first of the alternative claims, consequently it is the  obligation of the defendant bank to return to the plaintiffs the full amount claimed.

We dismiss the Appeal filed by BBVA and impose the costs of that Appeal on BBVA.

Fully uphold the challenges and arguments raised by the plaintiff and thus entirely uphold the Lawsuit in its alternative claim with the defendant bank now sentenced to pay the costs of the First Instance”

Trafalgar Lighthouse, Caños de Meca, Barbate, Cádiz, Costa de la Luz, South western Spain