ANOTHER JUDGMENT AGAINST A BANK FOR RESPONSIBILITY OF A REAL ESTATE DEVELOPER

In 2005 six of our clients acquired several apartments by private contract in a residential-commercial complex that should have been finished in 2008 and whose developer had requested a promotional loan to CajaCanarias (today La Caixa). Due to allegedly fraudulent maneuvers of the developer (their managers used financing money for their own benefit) the properties were not completed on time. Customers had delivered approximately 50% of the value of the property as delivery on account and the developer refused to return such amounts deposited in the bank account that the promoter had opened in CajaCanarias to finally file bankruptcy.

In September 2017, we filed a class action lawsuit against Caixabank on behalf of our clients for the bank's responsibility as guarantor of the amounts paid in advance by the buyers and deposited into the account or accounts that the developer had open in that entity. The bank has passive legitimation under Law 57/1968, which was the one we referred to in the lawsuit. This Law takes on special importance as a watchdog of compliance by the promoter of the constitution of the guarantees established in said law. The law imposes the bank the responsibility for the opening of accounts by the developer, to guarantee the refunding of monies in case the promotion does not reach a good end.

The bank plead to Court arguing, among other issues: first, that the developer had granted a bank guarantee to cover the monies paid on account of purchase of properties and, although the bank guarantee was not in vigour any longer it released the bank from its responsibility; second, although the monies had been deposited into an account of the developer in the defendant bank, the bank could not know the concept of such deposits; third it objected the liquidation of interests from the first payment. Our argument against the bank reasons were: first, that we were not suing the bank as bank guarantor but as joint responsible with the developer as per Law 57/68; second we demonstrate that the bank had knowledge of every payment and the reason of each one and; third, that the interests start running from the date of each payment.

In November 2018, the Court of First Instance 2 of Arona fully deemed the claim and ruled that the bank, by which it must reimburse customers not only the anticipated amounts (euro 148,000) but also the legal interest from the date of each one of the payments. In this case interest mean more than 47% over the principal claimed. The sentence is not res judicata yet.

The importance of this case for the clients is that for almost ten years they had been waiting for the refunding of the amounts and their hopes of getting back at least part of their investment were vanished when the bank adjudicated all the properties. There were several obstacles to be overcome, among others: first, to prove that the bank could be sued directly without first demanding the promoter; second, to prove that the previous judicial resolution of the contracts was not necessary (which would have made the task enormously difficult if depending on a decision in a bankruptcy proceeding that is still alive today); third, to prove the contractual responsibility of the bank even though the bank had not signed the contracts; fourth, justify the objective competence of the court of first instance and not the judge of the bankruptcy. To overcome these obstacles, an extensive compilation of Supreme Court rulings was necessary.