El blog de Maria

LEY 57/1968 Won Case in Provincial Appeal Court against SGR for a group of 3 clients who purchased off-plan properties from the developer Herrada del Tollo at Residencial Santa Ana del Monte

We were pleased to inform our clients recently that we had won their case against SGR in the Provincial Appeal Court.

The clients paid their off-plan deposits according to the Purchase Contracts to the developer’s bank account at BBVA.  The clients did not receive individual Guarantees for their off-plan deposits from the developer, Herrada del Tollo or from the developer’s bank BBVA or from SGR who had issued a General Guarantee for the development.

The First Instance Court condemned BBVA & SGR jointly & severally to refund the off-plan deposits plus interest from the date of payment.  Costs of the First Instance were also imposed on the defendants.

SGR filed an Appeal against the First Instance Sentence.  The Provincial Appeal Court dismissed the SGR Appeal in all aspects, except for the imposition of costs of the First Instance.  This part of the First Instance Sentence has now been reversed by the Provincial Appeal Court.  So costs of both the First Instance & Provincial Appeal are not imposed on SGR.

Re: YOUR CASE AGAINST SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA (SGR) & BANCO BILBAO VIZCAYA ARGENTARIA S.A. (BBVA)
PO xxxx/2014

Please find attached Sentence number xxx/2016 from the Provincial Appeal Court of Alicante Section 9 in Elche.

I am very pleased to advise you that the Appeal filed by SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA has been dismissed except for the issue of the costs of the First Instance procedure.

The final paragraph of the First Instance Sentence delivered on 26 October 2015 and notified on 26 October 2015 stated:

“Fully estimating the Lawsuit filed on behalf of 3 BUYERS against SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA & BANCO BILBAO VIZCAYA ARGENTARIA S.A. I condemn the defendants jointly & severally to pay the plaintiff the amount of xxx,xxx Euro plus legal interest from the date of delivery or deposits in the current accounts of BBVA until the full repayment and legal costs”

The final paragraph of the Provincial Appeal Court Sentence delivered on 1 July 2016 and notified on 8 July 2016 states:


“Partially upholding the appeal filed by SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA against the Sentence dated 26 October 2015 issued by the Judge of the First Instance Court No. 2 of Orihuela, we partially reverse that Sentence, in respect of the costs, in the sense of not imposing the costs incurred in the First Instance on SGR, leaving intact the rest of the pronouncements of the contested Sentence.  No imposition of costs of this appeal”


So the Appeal filed by SGR has been dismissed, except for the issue of costs of the First Instance procedure.  In the First Instance Sentence the Judge imposed costs on the defendants (SGR & BBVA).  The Appeal Court magistrates have reversed the part of the decision relating to the costs being imposed on SGR.  Costs of the First Instance procedure are now not imposed on SGR.  Therefore, each party will pay its own costs relating to the First Instance Proceedings and common costs will be halved.

Costs of the First Instance are still imposed on BBVA, because it did not Appeal.

There was no imposition of costs relating to the SGR Appeal.  Therefore, each party will pay its own costs relating to the Provincial Appeal Court procedure and common costs will be halved.

All other aspects of the First Instance Sentence have been confirmed.

As per the First Instance Sentence SGR & BBVA are jointly & severally liable to refund the total amount of xxx,xxx€ legal interest from the date each amount was paid to the developer’s account.

Interesting statements by the Appeal Court Magistrates are:


“With regards to costs of the First Instance, certainly there were significant legal doubts on the question at issue.  The Lawsuit was filed in November 2014 at which time there were indeed serious questions of law with mixed resolutions in the various Provincial Courts, including sections of the Alicante Provincial Court.  The Supreme Court Sentence which mainly supports the condemnation of SGR according to the General Guarantee it issued is dated 23 September 2015, so at the time the Lawsuit was filed in November 2014 that Supreme Court Sentence had not been issued.  Therefore, we must reverse the imposition of costs of the First Instance.  Therefore in accordance with article 394 of the LEC, each party will pay its own costs of the First Instance procedure.

Regarding the costs of this Appeal, although the Appeal was filed after the Supreme Court Sentence of 23 September 2015, the fact is that the Appeal filed by SGR has been partially successful in the sense that the part of the First Instance Sentence relating to the imposition of costs has been reversed according to Article 394 of the LEC.  So pursuant to Article 398.2 of the LEC costs of this Appeal are not imposed on any party.  Therefore, each party will pay its own costs in respect of this Appeal”


SGR has 20 working days from the date of notification of the Sentence, which was 8 July 2016, to comply with the Sentence or to file a Cassation Appeal to the Supreme Court.

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 a Cassation Appeal is filed by the defendant it will be necessary for us to file an Opposition to the Appeal on your behalf.