Cam Bank/Cleyton GES Final legal decision

LEGAL NEWS

CAM BANK MUST REFUND AMOUNTS PAID TO CLEYTON GES BECAUSE THEY WERE NEVER GUARANTEED
Dear Clients,

Today is a great day for all those clients who purchased properties from Cleyton Ges SL on the "Las Higuericas" residential complex.

Our firm, FUSTER & ASSOCIATES, has won an important case at the Provincial Court of Murcia against CAJA DE AHORROS DEL MEDITERRANEO (now Banco Sabadell CAM). The ruling orders this financial entity to refund all amounts paid by our client to Cleyton Ges SL on account of the price for the purchase of a property and paid into the special account opened with the CAM but that was never duly guaranteed by the entity.

The Provincial Court of Murcia upheld our appeal and, accepting our legal arguments, stated that all the hypotheses exist for liability to be attributed to Caja de Ahorros del Mediterráneo in accordance with Article 1 of Law 57/1968 following the opening of the special account provided for in said law by the developer and the lack of due guarantee for the refund of all amounts paid by the buyers by way of deposits, plus the corresponding interest.

According to the Court Ruling, the CAM did not duly require the legally established guarantee for the opening of this special account, thus failing to comply with the obligation attributed thereto by the law as guarantor of the existence of said guarantees to return payments made (in order to protect the interests of buyers). The CAM cannot claim not to be responsible for the existence of said guarantee when opening the account because, to the contrary, the CAM must control and verify the same. Therefore and considering that the purpose of the Law is to protect, the liability of Caja de Ahorros del Mediterráneo arising from this breach by opening the special account without providing the pertinent guarantees (bank guarantee or insurance cover) must be considered subsidiary in the event that the developer fails to return the amount claimed.

Furthermore, the Provincial Court o f Murcia concludes that this liability of the banking entity must, in any case, be considered separate from the liability arising from the issue, as appropriate, of the corresponding bank guarantee as Article 1 of Law 57/1968 does not affect property developers exclusively and nor is liability from the banking entity solely enforceable when a banking guarantee is provided.

As we can see, the doctrine established by the Provincial Court of Murcia, in line with other rulings passed by other provincial courts, represents a great step forward in defending the interests of property buyers, whose interests have been negatively affected by non-fulfilment by the developer when delivering the property and the lack of bank guarantees that would enable them to recover amounts paid on account of the price.

Moreover, this ruling is the first passed by a Provincial Court against Cleyton Ges SL and the CAM, with the added advantage of being final and not subject to any furthe r appeal.

 This was taken directly from Fuster & Associates as I have no connection with them

This message was last edited by steone on 11/10/2012.

 Great news! Does this set some sort of precedent?

Chris

Hi Chris

Yes, it does especially on the Las Higuericas, Finca Parcs development.

I am extremely pleased for the buyer involved whose Lawsuit was filed in 2010 because on 18 May 2011 in the First Instance Court they won against Cleyton GES but most significantly they lost against CAM Bank. Their Lawyer then submitted a very good appeal and on 17 September 2012 the Murcia Appeal Court accepted the appeal and revoked the First Instance Court decision which had originally absolved CAM Bank of any liability.

Therefore CAM Bank must now refund the deposit to the buyer.

The buyer in this case did have a Bank Guarantee for the first instalment of their deposit but not for the second instalment. So this is slightly different to the majority of our group members who never received the legally required Bank Guarantees for any part of their deposit. In fact out of the 47 group members in our first group Lawsuit only 2 had received Bank Guarantees for part of their deposit payment.

In our second group Lawsuit we currently have 21 group members and 2 of those had Bank Guarantees for part of their deposit payment. So we have 64 of us who never received Bank Guarantees for any part of our deposit payment.

However, this decision dated 17 September 2012 from the Murcia Appeal Court Section 1 is still very significant. It is an Appeal Court decision and is Case Law. So this will certainly be considered by the Albacete Appeal Court Magistrates when they make their decision on the CAM Bank appeal in our group Lawsuit 1 case on 4 March 2013. It will also be of great benefit to our group Lawsuit 2 and to any Finca Parcs buyers represented by other Law Firms.

As you know, since 2008 I have always been of the opinion that the banks had a liability according to Spanish Law, LEY 57/1968, in particular Article 1.2. In fact when I first wrote to CAM Bank in 2008 I made exactly those points to them. Unfortunately at that time there were no Lawyers who agreed with my views. But 4 years on it is a very different situation and the legal opinion has changed and more importantly so has the legal interpretation of LEY 57/1968 by Judges and Magistrates.

I am elated at this decision against CAM Bank from the Murcia Appeal Court. Firstly it is absolutely fantastic news for the buyer concerned as their Finca Parcs nightmare is almost over…….they just have to wait for CAM comply with the Appeal Court decision and release the funds.

And……for those of us still seeking justice in the Finca Parcs nightmare this decision can only help us all.
It is also Case Law that can be used in other similar cases.

Many congratulations to the buyer involved and congratulations to Fuster & Associates!

Kind regards

Keith
FINCA PARCS ACTION GROUP