Legal tip 1405.LEY 57/1968 Won Case in Provincial Appeal Court against CAIXABANK for our client who purchased an off-plan property from the developer Promociones Eurohouse at Residencial Fortuna Golf Resort
Friday, November 11, 2016 @ 1:10 PM
LEY 57/1968 Won Case in Provincial Appeal Court against CAIXABANK for our client who purchased an off-plan property from the developer Promociones Eurohouse at Residencial Fortuna Golf Resort
We were pleased to inform our client recently that we had won their case against Caixabank in the Provincial Appeal Court.
The client did not receive an individual Guarantee from the developer, Promociones Eurohouse 2010 S.L. or from the Bank to which their off-plan deposit was paid, CAIXABANK (formerly LA CAIXA).
The First Instance Court found Caixabank guilty and sentenced the Bank to refund the principal plus legal interest from the dated of payment to the developer’s account. Legal costs of the First Instance procedure were not imposed on the Bank due to the fact that the Judge was of the opinion there was conflicting jurisprudence regarding banks liabilities according to LEY 57/1968.
Caixabank appealed against the First Instance Sentence. The Provincial Appeal Court dismissed the Bank’s Appeal and fully confirmed the First Instance Sentence. Costs of the Appeal were imposed on Caixabank.
Re: YOUR CASE AGAINST CAIXABANK S.A.
PO: xxxx/2012
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 CAIXABANK has been dismissed and the First Instance Sentence has been confirmed.
The final paragraphs of the First Instance Sentence delivered on 23 October 2015 stated:
“That partially upholding the Lawsuit filed on behalf of xxxxx against the entity CAIXABANK S.A. I must condemn and order the defendant to pay the plaintiff the amount of xx,xxx€ plus legal interest from the date of payment of the amounts to current account of the company until the date of full payment.
There is no express imposition of costs”
The final paragraph of the Provincial Appeal Court Sentence delivered on 19 September 2016 and notified on 21 September 2016 states:
“Dismissing the appeal filed by CAIXABANK S.A. against the Sentence dated 23 October 2015 issued by the Judge of the First Instance Court No. 4 of Orihuela, we must confirm that Sentence. We expressly condemn the appellant bank to pay the costs of this appeal”
So the Appeal filed by CAIXABANK has been dismissed and the First Instance Sentence is confirmed.
The costs relating to the Appeal are imposed on the Bank.
As per the First Instance Sentence CAIXABANK is liable to refund the amount of xx,xxx€ plus legal interest from the date of payment. There was no imposition of costs in the First Instance Sentence; therefore each party will pay its own costs for the First Instance procedure. Costs of the Appeal are imposed on the Bank.
The Appeal Court Magistrates based its decision to dismiss the Caixabank Appeal mainly upon the Supreme Court Sentences dated 16 January 2015, 20 January 2015, 22 April 2015, 30 April 2015 & 23 September 2015.
CAIXABANK had 20 working days from the date of notification of the Sentence, which was 21 September 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.
