Legal tip 1393.LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST BANCO SABADELL FOR OUR CLIENTS WHO PURCHASED A OFF-PLAN PROPERTIES FROM THE DEVELOPER RUDINA EMPRESA CONSTRUCTORA S.L. AT THE DEVELOPMENT – MIRADOR DE IZNALLOZ
Monday, July 18, 2016 @ 1:13 PM
LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST BANCO SABADELL FOR OUR CLIENTS WHO PURCHASED A OFF-PLAN PROPERTIES FROM THE DEVELOPER RUDINA EMPRESA CONSTRUCTORA S.L. AT THE DEVELOPMENT – MIRADOR DE IZNALLOZ
We were extremely pleased to inform our clients recently that we had won their case against BANCO SABADELL in the First Instance Court.
The clients paid their off-plan deposits according to the Purchase Contract to the developer’s bank account at Banco Santander. The clients did not receive an individual Guarantee for their off-plan deposits from the developer, Rudina Empresa Constructora S.L. or from the developer’s bank. Banco Sabadell issued a General Guarantee to the developer but the buyers did not receive Individual Guarantees.
Re: YOUR CASE AGAINST BANCO DE SABADELL S.A. (previously CAM)
PO xxxx/2015
Please find attached Sentence number xx/2016 from the First Instance Court No.7 in Granada.
Your case against BANCO SABADELL has been won.
The final paragraph of the First Instance Sentence delivered on 23 June 2016 and notified on 30 June 2016 states:
“Upholding the Lawsuit filed on behalf of xxxxx, xxxxx & xxxxx against BANCO DE SABADELL S.A. and condemn the defendant to pay the plaintiffs the following amounts:
xx,xxx
These amounts accrue legal interest according to Article 3 of LEY 57/1968 amended by LEY 38/1999 from the date of the filing of the Lawsuit (30 June 2015)
Also condemning the defendant to pay the costs of these proceedings”
So BANCO SABADELL is sentenced to refund the total amount of xx,xxx€ plus interest at the legal rate from the date the Lawsuit was filed which was 30 June 2015.
Costs of the First Instance procedure are imposed on Banco Sabadell.
Interesting statements from the Judge in the Sentence were:
“The claimants signed purchase contracts with the entity Rudina Empresa Constructora S.L. during 2007 & 2008 for the purchase of homes in the promotion ‘Mirador de Iznalloz’. The contract stipulated that the properties would be delivered by July 2009. It is true that to date the homes have not been completed.
Banco Sabadell issued a General Guarantee (Line of Guarantees) to the developer, but did not provide individual guarantees to the buyers and did not even open a Special Account according to LEY 57/1968. Therefore it failed to comply with the legally required mandate.
The bank argues that it is the buyers who are negligent for not requesting Guarantees from the developer. The bank indicates that at no time was it aware of the purchases made by the claimants. The bank states it has no relationship with the developer except for issuing a line of guarantees to the value of 1.5 million euros and if it gave individual guarantees to any other buyer then that is because the developer requested it to do so.
These arguments by the bank must be dismissed as its responsibility to the buyers is borne out of Article 1.2 of LEY 57/1968. The bank must ensure buyers money is held in a Special Account and it must demand that the corresponding individual guarantees are issued.
The bank also argued that the delivery date for the housing was July 2009 and it was not until 2015 that the buyers first complained to the Bank. It states that this action has a time limit of 1 year. This argument is also dismissed as the time limit for these actions as confirmed by the Supreme Court is 15 years.
Applying the doctrine of various Supreme Court Sentences in 2015 & 2016 the responsibility of Banco Sabadell is clear. In this case it is proven that the buyer’s paid their off-plan deposits to the developer’s account opened at the respondent bank and to the account stated in the Purchase Contract.
Consequently the arguments of the Bank should be rejected”
BANCO SABADELL has 20 working days from the date of notification of the Sentence, which was 30 June 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Granada.
Although any appeal must be submitted strictly within the 20 working day deadline, we may not receive notification of an Appeal or of a firm sentence from the Court for a few weeks after the deadline due to the workload of the Court.
If an Appeal is filed by BANCO SABADELL it will be necessary for us to file an Opposition to the Appeal on your behalf.
You also have the right to file an Appeal to the Provincial Appeal Court regarding the fact that interest was only awarded from the filing of the Lawsuit (30 May 2015) and not from the date you paid the off-plan payments to the developer’s bank account in 2007/8.
Our litigators recommend an Appeal for additional interest.