Liability for breach of the loan agreement


loan contract


Castilla La Mancha Bank has been sentenced to pay compensation to a promoter for breach of the loan agreement.

The Supreme Court, in Case 1 March 2016 He has confirmed the condemnation of the Banco Castilla la Mancha to deliver 329.108 euros pendientes del loan que había acordado con la promotora, as well as 658.059 euros en concepto de damages.

In March 2006, the Caja de Ahorros de Castilla la Mancha (Today Banco Castilla La Mancha) granted to the developer "Far 2006 Calatrava S.L.” (hereinafter FAR), a préstamo con garantía hipotecaria por importe de 1.100.000 euros to finance the purchase of a lot on which would develop a promotion.

October 2007 It was granted novation and expansion of the mortgage loan, whereby another was granted loan of 4.252.502 euros, destinado a financiar la promoción de viviendas.

This amount, It would be entered by the borrowing part in a special account, opened in your name in the bank, to ensure sufficiency of collateral and destination of funds.

En total, the amount paid to "FAR" amounted to 5.352.502 euros.

The provision of such funds deposited in the special account, He was subject to a series of milestones, as having sold over forty homes to have more than 40%, or more 55 homes to have more than 80%.

Also could be made available against delivery of certificates of work executed and valued, Architect issued by the Director and the work and endorsed by the corresponding Official Association.

In July 2008, se otorgó una escritura de novación de mortgage en el que se modificaron las condiciones para la disposición del préstamo. To have more than 40% loan, It should be credited the outright sale of 31 homes, of 40 housing for 60% or 50 homes to have more than 80% of the loan principal.

In September 2008, Case refused to hand 328.108 euros a “FAR”. His request was based on construction certificates issued by the Head Architect in August 2008, warranting that the work of 36 housing was executed at 70'50% and other 24 homes to 79'50%.

The refusal by the Fund to the provision of such funding, It caused that paralyze the works.

Así que FAR interpuso demanda contra la entidad financiera, requesting the declaration of default of the loan agreement, an order that the Fund to fulfill the contract, giving 328.108 euros of the loan and to compensate the plaintiff for damages.

The Court of First Instance dismissed the application por considerar que a 28 August 2008, "FAR" he had not fulfilled the requirements of having more than 40 homes sold in signing and executed more than 60& Promotion. the interpretation of the requirements that alleged the bank filed. Para la entidad financiera, The percentages were calculated on the amount of extensions. For "FAR" requirements are needed to have total.

"FAR" he appealed to the Provincial Court, it considered proven that in August 2008 concurred the requirements for the provision of the loan and overturned the lower court decision, partially estimating demand. Fijó una indemnización de 658.069 euros, and forcing the Fund to delivery 328.108 euros.

Castilla La Mancha brought Bank appeal to the Supreme Court.

The only reason was the infringement of the first paragraph of art. 1.281 and art. 1285 Civil Code, which concern the interpretación de los contratos.

For the Bank, the first 1.100.000 euros, They were not deposited in a special account and therefore, should not be taken into account for calculating the percentages.

The Chamber rejects the appeal, and reprocha al banco que haya utilizado un “artificio aritmético” consistente en, on the one hand, exclusion pretend money initially delivered (1.100.000€), "But then contradictorily subtracts as paid on account of that percentage calculated on a reference to what has already been subtracted that amount".

Is, the Chamber indicates that:

"Your request involves procedural fraud within the meaning of Article 11.2 de la LOPJ ".

Ultimately, dismissing the appeal of the bank, is condemned to pay the costs and the judgment of the Court declaring Principal confirms the incumplimiento del contrato de préstamo.

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