El blog de Maria

WON CASE in FIRST INSTANCE COURT AGAINST BANCO POPULAR FOR OUR CLIENTS WHO PURCHASED OFF-PLAN PROPERTIES FROM THE DEVELOPER HUMA MEDITERRÁNEO S.L. AT ALMANZORA COUNTRY CLUB

We were extremely pleased to inform our clients today that we had won their case against BANCO POPULAR in the First Instance Court.

The clients paid their off-plan deposits to the developer’s account at BANCO POPULAR.  The clients did not receive individual Guarantees for their off-plan deposits from the developer, Huma Mediterráneo S.L. or from BANCO POPULAR, the Bank to which their off-plan deposit was paid and the Bank that signed a Guarantee Line with the developer.

Re: YOUR CASE AGAINST BANCO POPULAR ESPAÑOL S.A.
PO xxxx/2013

Please find attached the Sentence No. 30/2016 from the First Instance Court No.8 in Murcia.

Your case against BANCO POPULAR ESPAÑOL S.A. has been won.

The final paragraph of the First Instance Sentence delivered on 22 February 2016 and notified on 23 February 2016 states:

“Substantially upholding the Lawsuit filed on behalf of xxxxx & xxxxx, xxxxx & xxxxx, xxxxx & xxxxx against BANCO POPULAR ESPAÑOL S.A., I must condemn the BANCO POPULAR ESPAÑOL S.A. to pay the amounts actually deposited by the plaintiffs in the developers account in Banco Popular on account of the anticipated price for the acquisition of several homes of Huma Mediterraneo S.L., ascending to the conviction of the total amount of xxx,xxx€, plus interest at the rate of 6% per annum as agreed in the Guarantee Policy dated 12 May 2005, starting from the delivery date of the advance payments until payment in full, without the imposition of procedural costs on the defendant”

So BANCO POPULAR ESPAÑOL S.A. is sentenced to refund the total amount of xxx,xxx€, plus interest at the rate of 6% per annum from the date you paid to the developer’s bank account until complete repayment.

There was no imposition of legal costs; therefore each party will pay its own costs.

Interesting statements from the Judge in the Sentence were:

“Banco Popular granted Huma Mediterráneo as of 12 May 2005, two general guarantees for the repayment of amounts paid in advance by buyers plus interest.  In this case the buyers paid to the developers account opened at Banco Popular.

However, as a result of planning irregularities and the declaration of bankruptcy of Huma Mediterráneo S.L., the buyers requested termination of the purchase contract and had claims recognised in the bankruptcy procedure.

Banco Popular claims lack of capacity to be sued as it never issued a guarantee for the funds, individually or collectively.  The bank states that neither the contract nor the law LEY 57/1968 establishes this obligation.  It states that there was no evidence to show that the developer had requested it to issue individual guarantees to the buyers.

If there were doubts regarding the liability of the Bank then the Supreme Court Sentence of 21 December 2015 has set as case law as follows: ‘In the house sales governed by Law 57/1968 credit institutions that receive income from buyers into the promoters account without requiring the opening of a special account and corresponding warranty/guarantee are liable to buyers for the total of the amounts anticipated by the buyers and deposited in the account or accounts that the developer has opened in this organization’.

Nor is it an irrelevant fact of the economic benefit accruing to banks to arrange these transactions, since the obligation to deposit the advance payments into an account opened for that purpose in that entity as consideration involves not only the price of the guarantee, but also the gain or advantage derived from the financing of the property development.

In consideration of this doctrine is to be understood that it is the responsibility of the bank receiving the funds into the developer’s account to require the developer to constitute a specific individual guarantee to cover the amounts paid in advance by each buyer and the lack of requirement by the bank for the developer to issue such individual guarantees may have an impact on the purchaser if the developer breaches its obligations to construct the property.

It is true that this is not a breach of obligations by the bank guarantor, but it is aware from the outset that the granting of the guarantee line creates a legal relationship that produces effects towards a third party, a third party which has the status of consumer, who cannot be adversely affected by the violation of the duties by any of the contracting parties, formed by two business entities.

In short, Banco Popular awarded Huma Mediterraneo a guarantee line for the provision of individual guarantees to various individual homebuyers in the promotion Almanzora Country Club, guaranteeing the amounts paid on account by the buyers of these homes. And then the buyer’s funds were entered in an account of the entity in the name of Huma Mediterraneo SL without the Bank making any inquiry about the reason why any individual certificate of guarantee is not requested for the home buyers.  Therefore, the defendant Bank must respond to the applicants for the sums of money given to the seller as advance payments for the purchase of housing and deposited into the account. 

The defendant bank is ordered to pay interest at 6% as agreed in the General Guarantee Policy issued to Huma Mediterraneo dated 12 May 2005.

With regards to legal costs it can be seen in this case that there were doubts in law regarding the liabilities of the Bank according to LEY 57/1968, since both at the Statement of Defence (26 February 2014) & Preliminary Hearing (17 November 2014) the Supreme Court Sentences dated 30 April, 23 September & 21 December 2015, which now definitively clarify this subject, had not been issued.  Therefore, there is no imposition of legal costs”