NEW! HERRADA DEL TOLLO S.L. - BANK ACTION WON IN PROVINCIAL APPEAL COURT AGAINST SGR & BBVA FOR BUYERS AT RESIDENCIAL SANTA ANA DEL MONTE IN JUMILLA

HERRADA DEL TOLLO S.L. - BANK ACTION WON IN PROVINCIAL APPEAL COURT AGAINST SGR & BBVA FOR BUYERS AT RESIDENCIAL SANTA ANA DEL MONTE IN JUMILLA

Notification sent today to our clients who had reserved off-plan properties from the developer, HERRADA DEL TOLLO S.L. at RESIDENCIAL SANTA ANA DEL MONTE in JUMILLA, informing them that SGR had lost its Appeal against the First Instance Sentence and our Appeal against the part of the First Instance Sentence absolving BBVA had been upheld.


Re: YOUR CASE AGAINST BANCO BILBAO VIZCAYA ARGENTARIA S.A. (BBVA) & SOCIEDAD DE GARANTIA RECIPROCA DE LA COMUNIDAD VALENCIANA (SGR) – PO xxx/2012

Please find attached Sentence number xxx/15 from the Provincial Appeal Court Section 9 (Elche) inAlicante.

I am very pleased to advise you that the Appeal filed by SGRCV has been dismissed and your Appeal against the part of the First Instance Sentence absolving BBVA has been upheld.

The final paragraphs of the First Instance Sentence delivered on 21 February 2014 and notified on 13 March 2014 stated:


“I estimate the Lawsuit filed on behalf of xxxxxx & xxxxxxx against SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA and condemn the defendant, SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA to pay Messrs xxxxxx the sum of xx,xxx Euro with legal interest from 19 April 2007 until the return of the funds with costs expressly imposed on the defendant.

And I entirely dismiss the lawsuit filed on behalf of xxxxxx & xxxxxx against BBVA and I must acquit and absolve BANCO BILBAO VIZCAYA ARGENTARIA S.A. of all claims made against it with the imposition of costs on the plaintiff”


The final paragraph of the Provincial Appeal Court Sentence delivered on 12 May 2015 states: 


“We dismiss the Appeal filed by SGRCV and estimate the Appeal filed by xxxxxx & xxxxxx, against the Sentence of the First Instance Court No. 6 of Orihuela dated 21 February 2014, partially reverse that Sentence in particular the acquittal of BBVA, now jointly condemned with SGRCV to pay Messrs xxxxxx the amount of xx,xxx€ plus legal interest from the date of payment of that amount until full repayment.

Confirm the Sentence appealed in all other aspects”

So in the First Instance Court, SGR was sentenced to refund your off-plan deposit with the addition of legal interest from the date of payment of the deposits until full payment.  Your costs of the First Instance Proceedings in relation to the part of the action against SGR were imposed on SGR.

BANCO BILBAO VIZCAYA ARGENTARIA S.A. was acquitted and absolved of all claims against it.  Its costs calculated according to the amount claimed against it were imposed on you.

However, the Provincial Appeal Court has dismissed the Appeal filed by SGRCV and upheld your Appeal against the part of the Sentence relating to the acquittal of BBVA.

So BBVA are now jointly and severally liable with SGRCV for the refund of xx,xxx€ to you and BBVA’s costs which were imposed on you by the First Instance Court are now void.

In relation to the Costs for the part of the action against BBVA the Provincial Appeal Court has ruled that each party will pay its own costs.

In all other aspects the First Instance Sentence has been confirmed in full.

The costs relating to the SGRCV Appeal and to your Appeal against BBVA are not imposed on any party.  Therefore, each party will pay its own costs in relation to the Appeal.

Interesting statements from the Provincial Appeal Court are: 

“Defaults or internal processing errors between the promotor and guarantor entity, for example, the failure of the developer to submit buyers Purchase Contracts to the insurer for incorporation into the security issued for the purpose of issuing the relevant individual guarantees cannot be attributed to the buyer.  There can be no harm to the buyers due to the neglect attributable to the insurer due to failure in its monitoring obligations, especially under this kind of special law such as LEY 57/1968.

It should be added that that the Order of 29 November 1968 article 4b, authorises the insurer to ‘verify during the period of insurance, documents and data that relate to obligations assumed by the insurer, particularly in respect of movements in the Special Account’.

Therefore the Appeal filed by SGRCV is dismissed.

With regards to the liability of the developer’s bank, BBVA, the failure of buyer’s funds being credited to the Special Account cannot be an obstacle to the responsibility of the Bank in its function as guardian of the Law, LEY 57/1968.  So this co-defendant, BBVA, is also responsible with SGR for the funds paid to the developer’s account in its branches by Messrs xxxxxx”

That is great news that the appeal was won. However can you explain how why the buyer was not awarded their costs for the appeal. 

Dont get me wrong I would be very happy to get our deposit back. I am just finding it hard to understand why, when you are not in the wrong and you "win" the appeal you are not awarded costs. Is this the norm or were there particular nuances in this case as to why costs of the appeal were not awarded. 

Thanks for the information. Hopefully we win ours later this year!

Dave & Tina

Davemorr:

I fully endorse your view on costs and, as a matter of fact, they are generally imposed to losing part. This is an exception.

How can the court say "There can be no harm to the buyers due to the neglect attributable to the insurer due to failure in its monitoring obligations, especially under this kind of special law such as LEY 57/1968." when it has failed to award costs?  Of course there is 'harm' to the buyers if this is the case.  We are also an 'exception' and have been left greatly out of pocket because there is no consistency between judges decisions regarding costs. All of the cases are fundamentally the same - our barrister said as much in court but some people get their costs back and others don't. How is that fair?
 

JoandJez:

The interesting point you have raised is being discussed here:

http://www.eyeonspain.com/blogs/costaluz/15118/legal-tip-1312-imposition-of-legal-costs.aspx

Maria,

well done on another victory.

could you please answer the following questions for me;

1.  did your clients have a bank guarantee?

2.  was the appeal the first appeal?

3.  was it a high court appeal?

4.  will the bank now appeal to the high court or supreme court?

5.   have you won a case against the banks in the supreme court before?

sorry for all the questions but it seems none of us depositors can claim we have won until we win the final appeal so maybe we should not celebrate too much until then.

many thanks for your continued help in this matter.

regards,

John

John: This is a case at the  Provintial Appeal Court and , according to LawFirm database records, Banks have not appealed to the Supreme Court. So, in several month´s time, clients will get their refunds in their Bank accounts.

Yes we have won many cases at Appeal level... and refunded many clients too!

Maria

Maria,  many thanks for your reply.  could i just confirm a couple of things?

1.  did your clients have a bank guarantee?

2.  is the provincial court the first appeal court?

3.  is the high court different to the provincial court of appeal?

4.  could the bank now appeal to a high court [or any other court] if not to the supreme court?

many thanks, once, again,

regards,

John

Dear John:

I am answering to you below in bold green ( same text as your email):

Maria,  many thanks for your reply.  could i just confirm a couple of things?

1.  did your clients have a bank guarantee? No, they did not.

2.  is the provincial court the first appeal court? It is the only appeal Court.

3.  is the high court different to the provincial court of appeal? Supreme Court is different to the provintial Court of Appeals.

4.  could the bank now appeal to a high court [or any other court] if not to the supreme court? Bank could go, ( so far have not) to Supreme Court cassation procedure for the Supreme Court to review the Appeal Court Decission.

many thanks, once, again,

regards,

John

Dear Maria,

many, many thanks for your kind reply.

it has been of great help for me [and probably other members of this forum].

you have answered important questions for me.

i feel a lot more optimistic about the future now.

with best regards,

John

so glad to hear that!