Case won against SGR in Santa Ana del Monte

Legal tip 1398.LEY 57/1968 Won Case in Provincial Appeal Court against SGR for a group of 3 clients who purchased off-plan properties from the developer Herrada del Tollo at Residencial Santa Ana del Monte 
20 July 2016 @ 12:18 
 

LEY 57/1968 Won Case in Provincial Appeal Court against SGR for a group of 3 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 BBVA.  The clients did not receive individual Guarantees for their off-plan deposits from the developer, Herrada del Tollo or from the developer’s bank BBVA or from SGR who had issued a General Guarantee for the development.

The First Instance Court condemned BBVA & SGR jointly & severally to refund the off-plan deposits plus interest from the date of payment.  Costs of the First Instance were also imposed on the defendants.

SGR filed an Appeal against the First Instance Sentence.  The Provincial Appeal Court dismissed the SGR Appeal in all aspects, except for the imposition of costs of the First Instance.  This part of the First Instance Sentence has now been reversed by the Provincial Appeal Court.  So costs of both the First Instance & Provincial Appeal are not imposed on SGR.

Re: YOUR CASE AGAINST SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA (SGR) & BANCO BILBAO VIZCAYA ARGENTARIA S.A. (BBVA)
PO xxxx/2014

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 SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA has been dismissed except for the issue of the costs of the First Instance procedure.

The final paragraph of the First Instance Sentence delivered on 26 October 2015 and notified on 26 October 2015 stated:

“Fully estimating the Lawsuit filed on behalf of 3 BUYERS against SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA & BANCO BILBAO VIZCAYA ARGENTARIA S.A. I condemn the defendants jointly & severally to pay the plaintiff the amount of xxx,xxx Euro plus legal interest from the date of delivery or deposits in the current accounts of BBVA until the full repayment and legal costs”

The final paragraph of the Provincial Appeal Court Sentence delivered on 1 July 2016 and notified on 8 July 2016 states:


“Partially upholding the appeal filed by SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA against the Sentence dated 26 October 2015 issued by the Judge of the First Instance Court No. 2 of Orihuela, we partially reverse that Sentence, in respect of the costs, in the sense of not imposing the costs incurred in the First Instance on SGR, leaving intact the rest of the pronouncements of the contested Sentence.  No imposition of costs of this appeal”


So the Appeal filed by SGR has been dismissed, except for the issue of costs of the First Instance procedure.  In the First Instance Sentence the Judge imposed costs on the defendants (SGR & BBVA).  The Appeal Court magistrates have reversed the part of the decision relating to the costs being imposed on SGR.  Costs of the First Instance procedure are now not imposed on SGR.  Therefore, each party will pay its own costs relating to the First Instance Proceedings and common costs will be halved.

Costs of the First Instance are still imposed on BBVA, because it did not Appeal.

There was no imposition of costs relating to the SGR Appeal.  Therefore, each party will pay its own costs relating to the Provincial Appeal Court procedure and common costs will be halved.

All other aspects of the First Instance Sentence have been confirmed.

As per the First Instance Sentence SGR & BBVA are jointly & severally liable to refund the total amount of xxx,xxx€ legal interest from the date each amount was paid to the developer’s account.

Interesting statements by the Appeal Court Magistrates are:


“With regards to costs of the First Instance, certainly there were significant legal doubts on the question at issue.  The Lawsuit was filed in November 2014 at which time there were indeed serious questions of law with mixed resolutions in the various Provincial Courts, including sections of the Alicante Provincial Court.  The Supreme Court Sentence which mainly supports the condemnation of SGR according to the General Guarantee it issued is dated 23 September 2015, so at the time the Lawsuit was filed in November 2014 that Supreme Court Sentence had not been issued.  Therefore, we must reverse the imposition of costs of the First Instance.  Therefore in accordance with article 394 of the LEC, each party will pay its own costs of the First Instance procedure.

Regarding the costs of this Appeal, although the Appeal was filed after the Supreme Court Sentence of 23 September 2015, the fact is that the Appeal filed by SGR has been partially successful in the sense that the part of the First Instance Sentence relating to the imposition of costs has been reversed according to Article 394 of the LEC.  So pursuant to Article 398.2 of the LEC costs of this Appeal are not imposed on any party.  Therefore, each party will pay its own costs in respect of this Appeal”


SGR has 20 working days from the date of notification of the Sentence, which was 8 July 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.

Dear Maria,  thanks for letting us all know about those cases.  

my case was similar in that it was against BBVA and the First Instance Court awarded me a full refund of deposit, interest from the date deposit was paid to the bank and all costs.  Again, the bank appealed and the Appeal Court in Alicante reversed the decison on costs so I had to pay my own costs.

 I don't believe that I received the 6% interest that was clearly shown on my contract [in fact my solicitor hasn't told me exactly what the rate of interest was awarded] as the amount awarded was several thousand euros less.

I paid my deposit in two stages 1.  December 2005, euros 3,000 paid by Barclays Visa Debit card.  2.  January 2006, euros 60,000 paid by bank transfer.  I have received the euros 60,000 but not the euros 3,000.  The First Instance Court awarded me all euros 63,000 however, the Appeal Court seemed to agree with BBVA that my solicitor could not prove that the bank had received the first payment of euros 3,000!   I don't understand this at all.  My solicitor had the correct documents which showed the two payments were made [the First Instance Court must have agreed].  So how could the bank successfully appeal that my solicitor couldn't prove the first payment and why did the Appeal Court agree with them? The only thing that I can think of is that the copy of the Debit card payment slip doesn't actually say what the payment was for, only that I made a payment to BBVA of euros 3,000.  So BBVA definitely received my money but refuse to acknowledge it. Could I simply ask them to show where my money went to and ask them to give it back?  Even if I can't prove that the payment was stage 1 of the deposit payment they received euros 3,000 from me whatever it was for, they would have recorded receipt of it and I want it returned. I wonder what their accounts show - euros 3,000 received but lost in the system?  Not very good book-keeping, is it?

Maria, thanks for posting your most welcome and informative posts on here.

Best regards,

John

Hi

Was wondering if anyone has received interest yet on their refunded deposits ?

We won our case in the Court of Alicante, and received our deposit back into our bank account in April 2015.

The bank appealed the decision, and our Spanish Lawyer informed us of this, and that it would be going to the Supreme Court for a final decision / judgement ?

Surely, if interest is due then when should we expect to receive it ?

The costs were dealt with separately and are not an issue.

It's just the interest element we are concerned with.

Any help / advice would be much appreciated ?

Regards

Barry & Sue

Interests are being awarded in most cases from date of payment into developer´s account. There are some exceptions to this, date of interests award can be appealed.

Maria,

I think Barry was asking why the interest is not being paid back to the client after it has been awarded at the court.

I have heard a lot of people saying the interest does not come through to them when the deposit comes through.

Do you have experience of how long the interest takes to be paid by the bank after it is awarded to the client who wins a case.

Court pays in two stages. Firstly, it pays principal backs and then, after a short mini-procedure for calculation of interests ( and legal costs, if they were also part of the Courdecisionon), these are paid.

And Barry was asking what timescale this 'mini-procedure' takes.

we tend to find we only get to know when a case goes into and out of court, and not find out what's being said or what's happening, which is frustrating.

he said he has been waiting around a year or more, it does sound a little more than a mini-procedure when you look at it from his view. 

Whats your experience of how long it takes for interest, and also can you confirm the interest actually gets paid and how it's broken down. I understand it to be 6% per year.  

So a deposit of 1000 would have an interest of 60.   If it was 10 years they had the money the interest payment would be 600.  Is that correct?  

Briando55 - i managed to receive my deposit plus [some] interest only a couple of months after my first instance court case.  my solicitor was very sketchy about the details of the interest amount though.  i received about euros 15,000 in interest along with my deposit. i asked him how much interest was i awarded and what was the interest rate.  he never did tell me how much interest i was awarded and as for the rate, when i asked if it was 6% he simply said 'no, it won't be that much' [even though my contract with the developer stated 6%].  he also failed to get all my deposit back - the deposit was euros 63,000 made up of euros 3,000 deposit paid directly to the bank [BBVA] using my debit card and a week later euros 60,000 paid by bank transfer from my Spanish bank account.  the first instance court awarded me all euros 63,000 but then the appeal court decided to award only euros 60,000 as the bank argued that my solicitor could not prove that the first payment of euros  3,000 was connected at all !  how unbelieveable is that?  the bank received euros 3,000 from me but won't give it back.

all the best,

John