El blog de Maria

LEY 57/1968 Won Case in First Instance Court against BANCO POPULAR for our client who purchased an off-plan property from the developer AIFOS at El Balcón de Hipódromo

We were pleased to inform our client recently that we had won their case against BANCO POPULAR in the First Instance Court.  The client did not receive an individual Guarantee from the developer, AIFOS or from the Bank to which their off-plan deposit was paid, Banco de Andalucía (now Banco Popular).  Banco de Andalucía did issue a General Guarantee to Aifos for its various developments in 2006.

Re: YOUR CASE AGAINST BANCO POPULAR
PO xxx/2016

Please find attached Sentence No. xxx/2016 from the First Instance Court No.19 in Malaga.

Your case against BANCO POPULAR has been won.

The final paragraph of the First Instance Sentence delivered on 15 September 2016 and notified on 16 September 2016 states:

“Upholding the Lawsuit filed on behalf of xxxxx against the entity BANCO POPULAR I condemn the said defendant to pay the amount of xx,xxx€ plus interest at the legal rate from the date the funds were paid to the developer, with imposition of costs of this procedure on the defendant”


So BANCO POPULAR is sentenced to refund the amount of xx,xxx€ plus interest at the legal rate from the date the funds were paid to the developer.

Costs of the First Instance Procedure are imposed on the Bank.

Interesting statements from the Judge in the Sentence were:


“In February 2016 the plaintiffs filed a Lawsuit against Banco Popular, requesting the conviction of the bank according to its responsibility under LEY 57/1968.  The plaintiff requested the refund of the total amount paid to the developer under the Purchase Contract plus interest & costs.

The Bank opposed the Lawsuit on the grounds that the contract was signed with Aifos Comercalizadora de Promociones S.L. and not Aifos Arquitectura y Promociones Inmobiliarias S.A., which are legally independent companies.  Also it states that Banco Popular, Banco de Andalucía & Banco Pastor had no relationship with the first company.  The Bank also stated that there was no evidence to show that the property was acquired as a family home for permanent or seasonal residence as required by LEY 57/1968, that the first deposit payment was not recognised in the contract, that the Letras de Cambio (bills of exchange) were not paid to Banco de Andalucía and that other banks had also formalized General Guarantees with Aifos.  Finally it stated that the General Guarantee issued by Banco de Andalucía (now Banco Popular) to Aifos dated 18 May 2006 does not constitute a Guarantee for third parties and it was Aifos who was responsible for submitting the purchase contracts and requesting the individual guarantees.  Neither the buyers nor Aifos requested the individual guarantee.

On 27 February 2004 the plaintiffs signed a Purchase Contract with Aifos Arquitectura y Promociones Inmobiliarias S.A, actually the entity Aifos Comercializacion de Promociones S.L. (as expressly stated in document 2 of the Lawsuit) for the purchase of a home situated in Mijas, in the development El Balcón de Hipódromo.  The buyers paid xx,xxx€ as in initial deposit at the time of signing the contract, xxx,xxx€ was to be paid by subrogating the builders mortgage and xx,xxx€ by 3 Bills of Exchange with quarterly payment dates starting 27 August 2004.

The purchase contract stated in clause 6 that if the contract was resolved for the reasons specified in Article 3 of LEY 57/1968 then the amounts paid will be returned to the purchaser together with legal interest.

The property was not built and Aifos was declared bankrupt.

Evidence presented confirms there was a General Guarantee issued to Aifos by Banco de Andalucía (now Banco Popular) for its various promotions.

With respect to the non-application of the Guarantee according to the scope of LEY 57/1968, there is no evidence to show that the property was purchased speculatively and that the buyers should be considered as investors.  Therefore the protective nature of the Law should be applied to the buyers.

As for the lack of proof of delivery of amounts, evidence has been provided for all payments.  The fact that Aifos did not pay the bills of exchange into Banco de Andalucía, but to another bank, does not remove the protection offered to the buyer according to the General Guarantee under LEY 57/1968.  This is confirmed by the Sentence of Section 4 of the Provincial Appeal Court of Malaga dated 10 September 2015 and the recent Supreme Court Sentence dated 21 December 2015.

Also clarifying the position of the Supreme Court are the Sentences dated 13 & 23 September 2015 and the recent Supreme Court Sentence dated 22 April 2016.

This is why applying the doctrine exposed the fact that the defendant bank only issued a General Guarantee to Aifos, does not exclude its primary obligation which was to refund the amounts and issue individual guarantees.  The fact it did not issue the individual guarantees cannot harm the buyers.

Interest should be paid from the date each payment was made to the developer by the buyers.

In accordance with Article 394 of the Civil Procedure Act, having fully upheld the Lawsuit the costs must be imposed on the defendant bank”


BANCO POPULAR had 20 working days from the date of notification of the Sentence, which was 16 September 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Malaga.

We were notified recently that the Bank has filed an Appeal to the Provincial Appeal Court of Malaga.