Abolex Abogados. Abolex Lawyers

The Provincial Court of Alicante condemns the banks to return the amounts paid on account of the purchase of a house in the “Santa Ana del Monte” development in Jumilla, by “Herrada del Tollo S.L.”

Abolex currently represents many affected by the bankruptcy of the entity HERRADA DEL TOLLO S.L., mainly clients who paid amounts on account for the purchase of homes under construction. Already in 2012, our firm decided to take risks and almost pioneering the claim against the banks that received the funds from the buyers. To date, 100% of the judgments obtained by Abolex have condemned banks to return the money deposited by our clients.

Abolex’s clients are satisfied with the bank’s responsibility for the funds deposited in it for the purchase of a house under construction. Law 57/1968. Alicante Provincial Court, Section 5.

PROVINCIAL COURT

SECTION FIVE

ALICANTE

Procedure: APPEALS (LECN) No. 288-A/2014- C –

Summary of the Ordinary Trial No. 000665/2013 OF THE JUDGE OF FIRST INSTANCE NUMBER 9 OF ALICANTE

Appellant: BANCO BILBAO VIZCAYA ARGENTARIA S.A.

Prosecutor: CARMEN VIDAL MAESTRE

Counsel: MARTA NAVARRO VICENTE

Appellee: XXXXX YYYYY and XXXXX YYYYY

Procurator: ENRIQUE DE LA CRUZ LLEDO and ENRIQUE DE LA CRUZ LLEDO

Counsel: MARTIN DE LA HERRAN SABICK and MARTIN DE LA HERRAN SABICK

SENTENCE NUMBER 385

Iltmos. Messrs..:

President: Mr. José Luis Úbeda Mulero

Judge: Ms. Visitación Pérez Serra

Judge: Ms. Mª. Teresa Serra Abarca

In the city of Alicante on December 17th, two thousand fourteen.

The Fifth Section of the Provincial Court of Alicante, made up of the Iltmos Messrs. expressed in the margin, has seen the orders of ordinary trial No. 665 / 2013 followed in the Court of First Instance Number Nine of Alicante, on claim of amount, of which it knows in degree of appeal under the appeal filed by the defendant BANCO BILBAO VIZCAYA ARGENTARIA S.A., represented by the Attorney Ms. Carmen Vidal Maestre and directed by Ms. Marta Navarro Vicente. And as appealed party, the plaintiffs Mr. XXXXX YYYYY and Ms. SARAG YYYY, represented by the Attorney General Mr. Enrique de la Cruz Lledó and directed by the Attorney General Mr. Martín de la Herran Sabick.

I – FACTUAL BACKGROUND

FIRST – By the Court of First Instance Number Nine of Alicante in the proceedings of ordinary trial No. 665 / 2013, was issued on 15-4-2014 Judgment No. 68 / 2014 whose operative part is as follows

“That in accepting in full the application filed by XXXXX YYYYY and XXXXX YYYYY against BANCO BILBAO VIZCAYA ARGENTARIA S.A., I am obliged to 1. I hereby order and condemn Banco Bilbao Vizcaya Argentaria S.A. to pay to XXXXX YYYYY and XXXXX YYYYY the amount of XXXXXX EUROS (XXXXX EUROS) in principal plus XXXXX (XXXXX EUROS) in accrued interest, up to the date of the lawsuit. Plus subsequent statutory interest. 2.- All this, with express imposition of the costs incurred”.

SECOND: The defendant filed an appeal against this judgment, which was processed in writing by the Court of origin, in the manner introduced by Law 1/2000, and the proceedings were subsequently submitted to this Court, where the corresponding Appeal Roll No. 288-A-2014 was formed, and was submitted for vote and decision on 16-12-2014.

THIRD: In the processing of this instance, in the present process, the legal rules and formalities have been observed.

IN VIEW OF, being the Speaker the Iltma.. Mrs. María Teresa Serra Abarca.

II – LEGAL FOUNDATIONS

FIRST: The sentence appealed against accepted the demand made by the buyers of a house that was not built and, consequently, condemned the bank, guarantor at the time of the promoter in question, to reimburse the actors the sum of XXXXX euros paid on account of that purchase and interest, with the defendant bank making an appeal.

SECOND: The first plea in the appeal alleges the incorrect application of Law 57/1968 and the case law of the Supreme Court in relation to the non-existence of an obligation on the part of the bank to ensure the delivery of the guarantee by the seller.

In the same case, in which the same bank was also the defendant, this Section 5 has already been pronounced in judgments No. 334 of 8 October 2010, No. 23 of 22 January 2014 and 10 July 2014 in the following terms: It is therefore accepted that the Court should reject the plea of lack of standing of the defendants on the grounds that the fact that the developer did not deliver an individualised guarantee document to the buyers who are now suing does not prevent it from being entitled to the guarantee established in the aforementioned Law 57/1968, Nor does the fact that there is no contractual relationship between the parties and the defendants prevent the success of the action, since, as it is a collective insurance policy, the buyer acquires the status of insured party by the fact of contracting with the selling developer, and cannot be affected by the latter’s failure to comply with the insurance company. It should be borne in mind that, as stated in the ruling of this same Section of 5 March 2010, what the aforementioned Law seeks to guarantee for future home buyers is the return of the amounts they have advanced, whether construction has not begun or has not been completed. The arguments contained in the second legal basis regarding the lack of income of the amounts in a special account provided for in Law 57/1968 and the exhaustion of the line of guarantees are also shared. With regard to the lack of express reference in the policies of the promotion that was guaranteed, the argument of the appellants cannot be accepted since this is not the case with the SGRCV and BBVA in view of the express reference contained in their respective policies; and with regard to the other bank co-defendant under the doctrine of own acts since it is clear from the documentary evidence that the guarantee was provided to different buyers of the same promotion”.

The same decision adds that “The arguments contained in the decision of the Burgos Provincial Court (Section 2) of 25 October 2012 are applicable here, which, in summary, declares the responsibility of the entity holding the account used to finance the development for not requiring the developer to provide a guarantee to cover the amounts paid on account by the buyers, establishing the obligation of the bank to return the amounts paid on account (by a cooperative member in this case) after the cooperative has entered into bankruptcy proceedings. The arguments contained in the recent Supreme Court ruling of 13 September 2013 (No. 540/2013) should also be taken into account”.

Therefore, there is no infringement of the principle of effective judicial protection, as is also argued in this plea. Finally, it should be pointed out that although there are contradictory positions to the one maintained here, as can be seen from the judgments cited in the appeal, this Chamber Like other sections of this Provincial Court, it is expressed in the sense described above, and the Supreme Court in the ruling cited in 2013 also maintains a strong defense of the interests of home buyers in the event that, although it is not identical to the present, it does allow its considerations to be applied in essence. Therefore, there is no infringement of the criterion maintained in the instance, nor is there any infringement of the Supreme Court’s doctrine, since the ruling cited does not address an identical case to the present

The second plea alleges incorrect assessment of the evidence and infringement of Article 1827 of the Civil Code, insisting that the plaintiffs have no connection with the appellant, adding that the policy taken out cannot be covered by Law 57/1968, since the individual certificates were not issued, a matter on which the judgment in this Section 5, which has just been partly transcribed, already states, in the opposite sense to the one sought, that this plea cannot be upheld either.

The third plea alleges infringement of Article 217(3) and 218. 2 of the Lec, criticizes the fact that the ruling does not adequately assess the document from which the exhaustion of the line of guarantees provided to the developer of these homes is inferred, and in this regard, the considerations of the ruling are not adequately addressed, since challenging the document in question, the payment of all the guarantees was not duly proved and, on the other hand, as the appellant claims, it is contradictory to indicate that guarantees were provided for an amount when it is admitted that they have been paid for a higher amount, proceeding, consequently, to the confirmation of the appealed judgment.

Fourthly, Article 135 of the Bankruptcy Law does not apply since there is no guarantee from the defendant financial institution with respect to the plaintiffs, which is also rejected since it is not proven by the defendant that the plaintiffs adhered to the agreement within the bankruptcy proceedings and therefore the defendant must respond for the amount claimed in accordance with the arguments already set out in the previous paragraphs of this resolution.

THIRD: The costs of the appeal are imposed on the appellant, applying the provisions of Article 398 of the Civil Procedure Law.

Having regard to the above provisions and others of general and relevant application.

WE FAIL

Dismissing the appeal against the judgment of the Court of First Instance No. 9 of Alicante of 15 April 2014 in the proceedings from which this roll was derived, we must CONFIRM and uphold that decision, imposing on the appellant the costs of this appeal.

The loss of the deposit constituted in accordance with Law 1/2009 of 3 November and Additional Provision Fifteen of the Organic Law of the Judiciary is hereby agreed.

This resolution should be notified in accordance with the provisions of Articles 248.4 of the Organic Law of the Judiciary and 208.4 and 212.1 of the Civil Procedure Law, and, at the appropriate time, the proceedings should be returned to the Court of origin, with an acknowledgement of receipt, accompanied by a literal certification of this resolution for the appropriate purposes, joining another to the Roll of Appeal. Cassation and extraordinary appeals for procedural violations may be filed against it before the First Chamber of the Supreme Court in accordance with the provisions of articles 477.2.3º and 469 and Final Provision Sixteen of the Civil Procedure Law, respectively, which may be formalized before this Section of the Hearing within twenty days from its notification.

Thus, by this our sentence, ruling on appeal, we pronounce, order and sign it.

PUBLICATION: On the same day, the previous resolution was read and published by the undersigned Mr. Rapporteur, and the Chamber held a Public Hearing. I attest.

 

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