Legal tip 1370. WON CASE in PROVINCIAL APPEAL COURT AGAINST CAJA GRANADA (now BANCO MARE NOSTRUM) FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER PROMOCIONES INROAL S.L. AT THE ANDARAX DEVELOPMENT IN TERQUE
Thursday, March 3, 2016 @ 7:08 PM
WON CASE in PROVINCIAL APPEAL COURT AGAINST CAJA GRANADA (now BANCO MARE NOSTRUM) FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER PROMOCIONES INROAL S.L. AT THE ANDARAX DEVELOPMENT IN TERQUE
We were extremely pleased to inform our client today that we had won their case against BANCO MARE NOSTRUM in the Provincial Appeal Court.
The client paid their off-plan deposit to the developer’s account at CAJA GRANADA (now BANCO MARE NOSTRUM). The client did not receive an individual Guarantee for their off-plan deposit from the developer, Promociones Inroal S.L. or from CAJA GRANADA, the Bank to which their off-plan deposit was paid and the Bank that signed a Guarantee Line with the developer.
In January 2015 the First Instance Court in Roquetas de Mar dismissed our Lawsuit and absolved Caja Granada of all claims against it.
Under instructions from our client we submitted an Appeal to the Provincial Appeal Court of Almería.
The Provincial Appeal Court has upheld our Appeal, revoked the First Instance Sentence and condemned the Bank to refund the off-plan deposit plus legal interest and the costs of the First Instance Procedure.
Re: YOUR CASE AGAINST CAJA GENERAL DE AHORROS DE GRANADA (now BANCO MARE NOSTRUM S.A.)
PO xxx/2012
Please find attached Sentence number 54/16 from the Provincial Appeal Court of Almería Section 1.
I am very pleased to advise you that your Appeal has been upheld and the First Instance Sentence has been reversed.
The final paragraph of the First Instance Sentence delivered on 19 January 2015 stated:
“I completely dismiss the Lawsuit filed on behalf of XXXXX & XXXXX against CAJA GENERAL DE AHORROS DE GRANADA now BANCO MARE NOSTRUM S.A. with the imposition of costs on the plaintiff”
The final paragraph of the Provincial Appeal Court Sentence delivered on 16 February 2016 and notified on 3 March 2016 states:
“Upholding the Appeal brought against the Sentence of 19 January 2015 in procedure PO XXX/2012 from the First Instance Court No.2 of Roquetas de Mar and therefore we must reverse and revoke that resolution, and in its place:
First – Condemn the defendant Caja General de Ahorros de Granada (now Banco Mare Nostrum S.A.) to pay to the plaintiff the amount of XX,XXX Euros plus legal interest on that amount.
Second – Impose the costs of the First Instance on the defendant
Third – Without express order for costs of the Second Instance”
So your Appeal has been upheld and the First Instance Sentence has been reversed and rescinded.
Banco Mare Nostrum is now condemned to pay you XX,XXX€ plus legal interest. We are seeking clarification from the Provincial Appeal Court as to when the interest will accrue from.
Costs of the First Instance procedure are now imposed on Banco Mare Nostrum.
There is no express imposition of costs relating to the Provincial Court Appeal. So each party will pay its own costs in respect of the Appeal.
Interesting statements in the Sentence from the Provincial Appeal Court Magistrates are:
“Document 3 provided by the plaintiff is a Guarantee Line Policy signed between the developer and said financial institution dated 16 October 2007. When the plaintiffs contacted the Bank in March 2011, before starting this litigation, the Bank replied and did not deny that a Guarantee Line Policy was issued but in respect of the claimants it stated that the Bank had not been requested to issue an individual guarantee in their favour. Consequently the bank advised the claimants that any questions related to the purchase contract should be directed to the developer, Promociones Inroal S.L.
It is established that the plaintiff’s off-plan deposit was entered into the developers account in Caja Granada (now BMN). All entries in that account are referenced as income from individuals or as named expenses & loan repayments. Therefore it follows that the Bank was aware of business of the developer and the off-plan promotion and therefore it operated as a Special Account.
Jurisprudence states that a General Guarantee Policy should cover all amounts paid on account by buyers even if the policy establishes a lower maximum amount, because otherwise Article 2 of LEY 57/1968 would be infringed.
The defendant cannot hide behind the non-issue of the Individual Guarantee when it operates the account opened by the developer and is aware of the purpose of the funds being paid into the account.
We must therefore revoke the First Instance Sentence”
BANCO MARE NOSTRUM has 20 working days from the date of notification of the Sentence, which was 3 March 2016, to comply with the Sentence or to file a Cassation Appeal to the Supreme Court.
If a Cassation Appeal is filed by the defendant it will be necessary for us to file an Opposition to the Appeal on your behalf.
If the defendant fails to comply with the sentence then we will enforce the sentence against it.
La Alhambra and Sierra Nevada, Granada, South eastern Spain