Legal tip 1378. LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST BANKIA IN FORTUNA GOLF, APARTAMENTOS TURISTICOS FORTUNA GOLF RESORT AND APARTAMENTOS TURISTICOS PUEBLO LA SAL POR EUROHOUSE
19 April 2016
LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST BANKIA FOR A GROUP OF OUR CLIENTS WHO PURCHASED OFF-PLAN PROPERTIES FROM THE DEVELOPER PROMOCIONES EUROHOUSE S.L. AT RESIDENCIAL FORTUNA GOLF RESORT, APARTAMENTOS TURISTICOS FORTUNA GOLF RESORT & APARTAMENTOS TURISTICOS PUEBLO LA SAL
We were extremely pleased to inform our clients recently that we had won their case against BANKIA in the First Instance Court.
The clients paid their off-plan deposits to the developer’s account at BANKIA. The clients did not receive individual Guarantees for their off-plan deposits from the developer, Promociones Eurohouse S.L. or from BANKIA, the Bank to which their off-plan deposit was paid.
Re: YOUR CASE AGAINST BANKIA S.A.
PO: 1155/2012
Please find attached Sentence number 42/2016 from the First Instance Court No.5 in Orihuela.
Your case against BANKIA S.A. has been won.
The final paragraph of the First Instance Sentence delivered on 9 March 2016 and notified on 11 March 2016 states:
“I substantially uphold the Lawsuit filed on behalf of 12 buyers against the financial institution BANKIA S.A., and must condemn the defendant to the repayment of the amount paid on account and entered in the BANKIA account of the developer, amounting to 211,857.98€ and this according to the ratio contained in the second section of the Lawsuit, plus legal interest from the date of payment to the developer’s account in BANKIA.
As for costs they are imposed on the defendant BANKIA S.A.”
So BANKIA is liable to refund the total amount of 211,857.98€ plus legal interest from the date each amount was paid to the Promociones Eurohouse account at BANKIA until full payment to the Court.
Costs of the First Instance procedure are imposed on BANKIA.
The Sentence explains the reasons for the liability of BANKIA according to its obligations under LEY 57/1968 for the off-plan deposits paid to accounts opened by the developer, PROMOCIONES EUROHOUSE 2010 S.L. in BANKIA.
Particular points of interest stated by the Judge in the Sentence are:
“In its Lawsuit the plaintiffs claimed the amounts paid to the Promociones Eurohouse account at Bankia plus interest & costs.
Bankia opposed the Lawsuit claiming that at no time did it participate in the financing of the construction of the housing developments of Promociones Eurohouse, so no liability can be generated against it as a result of the breaches of the developer. It says that it was absolutely unaware that the payments made into the account were from buyers of off-plan properties as it had no control over the housing developments that the developer was selling. It states that it had no legal relationship with the developer derived the construction of the houses.
Furthermore Bankia states that it had no obligation to deliver guarantees according to LEY 57/1968 because this obligation is only that of the developer and never of the financial institution.
However, according to jurisprudence it must be concluded that the protection afforded by LEY 57/1968 results from the fact that income occurs in the accounts of the defendant entity regardless of whether or not it was funding the housing construction and regardless of whether the bank account details contained in the sales contract were those of the defendant bank or not”
BANKIA has 20 working days from the date of notification of the Sentence, which was 11 March 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Alicante.
If an Appeal is filed by BANKIA it will be necessary for us to file an Opposition to the Appeal on your behalf.