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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) inAlicante.

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”