LEY 57/1968 Won Case in Provincial Appeal Court against SGR for 2 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 various banks. The clients did not receive individual Guarantees for their off-plan deposits from the developer, Herrada del Tollo or from the developer’s banks or from SGR who had issued a General Guarantee for the development.
The First Instance Court condemned Banco Popular only for the actual amounts for which the buyers had proof of payments to the developer’s accounts opened at its branches.
SGR who issued a General Guarantee to the developer was acquitted and absolved of any liability.
Banco Popular filed an Appeal. Its Appeal was dismissed and the First Instance Sentence against Banco Popular was confirmed.
On the instructions of our clients we filed an Appeal regarding the acquittal of SGR. Our Appeal was upheld and SGR was sentenced to refund the full amount paid by both buyers according to the General Guarantee it issued to the developer. This also included amounts for which the buyers did not have specific proof of payment, but which were recognised in the insolvency procedure of the developer.
Re: YOUR CASE AGAINST SOCIEDAD DE GARANTIA RECÍPROCA DE LA COMUNIDAD VALENCIANA & BANCO PASTOR (now BANCO POPULAR)
PO xxxx/2011
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 BANCO POPULAR has been dismissed.
Your Appeal against the acquittal of SGR has been upheld.
The final paragraphs of the First Instance Sentence delivered on 2 June 2015 and notified on 5 June 2015 stated:
“That partially upholding the Lawsuit filed on behalf of 2 BUYERS against SOCIEDAD DE GARANTIA RECÍPROCA DE LA COMMUNIDAD VALENCIANA and against BANCO PASTOR, I condemn Banco Pastor only to pay to BUYER 1 the sum of xx,xxx Euros plus legal interest from the date of payment by the buyers and to pay nothing to BUYER 2, and I also acquit and absolve Sociedad de Garantía Recíproca de la Communidad Valenciana of any liability in this case.
As for costs it will be as per the third article of this resolution.
THIRD – In respect of costs, they are imposed as follows: In respect of the costs incurred by Sociedad de Garantía Recíproca de la Communidad Valenciana these are imposed on the plaintiffs. In respect of the costs of the action against Banco Pastor each party shall pay its own costs and any common costs will be halved”
The final paragraphs of the Provincial Appeal Court Sentence delivered on 19 May 2016 and notified on 27 May 2016 state:
“Dismissing the appeal filed by BANCO POPULAR and partially upholding the Appeal filed by 2 BUYERS, against the Sentence dated 2 June 2015 issued by the Judge of the First Instance Court No. 5 of Orihuela, we reverse that Sentence and instead say:
Upholding entirely in its alternative claim the Lawsuit filed by 2 BUYERS against Sociedad de Garantía Recíproca de la Comunidad Valenciana (SGR), condemning it to pay to BUYER 1 the amount of xx,xxx€ and to BUYER 2 the amount of xx,xxx€, plus legal interest from the date the amounts were paid to the developer’s bank account.
Upholding substantially in its alternative claim the Lawsuit filed by BUYER 1 against Banco Popular, condemning it to pay to them the amount of xx,xxx€ plus legal interest from the date the amount was paid to the developer’s bank account.
Dismissing the Lawsuit filed by BUYER 2 against Banco Popular and absolve the claims made against it.
Declare the joint liability of the co-defendants for the condemned amounts”
So the Appeal filed by BANCO POPULAR has been dismissed.
Your Appeal against SGR has been upheld.
SGR is now sentenced to pay:
xx,xxx€ to Messrs xxxxx
xx,xxx€ to Messrs xxxxx (of this amount Banco Popular is jointly liable for xx,xxx€)
As per the First Instance Sentence, Banco Popular is not liable to pay Messrs xxxxx anything.
On 27 June 2016 the Court issued a decree which slightly amended the Provincial Appeal Court Sentence in respect of the costs.
The Sentence is amended as follows:
“Dismissing the appeal filed by BANCO POPULAR and partially upholding the Appeal filed by 2 BUYERS, against the Sentence dated 2 June 2015 issued by the Judge of the First Instance Court No. 5 of Orihuela, we partially reverse that Sentence and instead say:
Upholding entirely in its alternative claim the Lawsuit filed by 2 BUYERS against Sociedad de Garantía Recíproca de la Comunidad Valenciana (SGR), condemning it to pay to BUYER 1 the amount of xx,xxx€ and to BUYER 2 the amount of xx,xxx€, plus legal interest from the date the amounts were paid to the developer’s bank account. Expressly condemns such co-defendant with the costs incurred in this procedure.
Imposing on Banco Popular the costs of its Appeal. Without special pronouncement of costs relating to the Appeal of the plaintiffs.
The original Sentence is otherwise confirmed”
Interesting statements by the Appeal Court Magistrates are:
“Regarding the appeal filed by Banco Popular we refer to the reasoning of the lower court which reflects the existing case law on this subject. So we dismiss the appeal based on the criteria of the Supreme Court and also of this Section 9 of the Provincial Appeal Court of Alicante in the Sentence of 1 April 2014 on the matter of interpretation of LEY 57/1968.
Regarding the Appeal of Messrs xxxxx & Messrs xxxxx against the acquittal of SGR, the condemnation of SGR from the moment it gave a Guarantee Line (General Guarantee) to the developer, has already been decided on several occasions by this Appeal Court Section 9 in similar cases, as an example we cite the Sentence of 12 May 2015, that both litigants know perfectly well.
In addition and subsequently there is the Supreme Court Sentence of 23 September 2015.
Regarding the amounts claimed, given the Sentence that recognizes the amount paid and the other documents provided for that purpose, we conclude that SGR must return to Messrs xxxxx the amount of xx,xxx€ and to Messrs xxxxx the amount of xx,xxx€ (including the x,xxx€ reservation deposit paid at the signing of the contract) claimed in respect of advance payments for off-plan homes. These amounts accrue legal interest from the date of payment to the developer’s bank account”
SGR & Banco Popular have 20 working days from the date of the Decree modifying the Sentence, which was 27 June 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 either defendant it will be necessary for us to file an Opposition to the Appeal on your behalf.
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