Bonos Popular: New sentence in Madrid
The Court of 1st Instance number 96 Madrid has declared void a purchase of subordinated bonds 2009 and their exchange, in sentence 29 September 2015.
This case highlights that the demand was raised by two commercial companies, limited and another anonymous.
October 2009, those hired merchant convertible subordinated bonds of Banco Popular, in the amounts of 18.000 and 15.000 euros, on the recommendation of the bank.
In view of the losses suffered and the impossibility of a friendly settlement, requests the nullity or annulment of both contractual purchase agreements convertible subordinated bonds of Banco Popular, or alternatively terminate the contract with compensation for damages. The lawsuit is directed against Banco Popular Español S.A. y Targo Bank S.L.
It is alleged that consent was tainted by having been an error in the nature and risks of the product, By failing to fulfill its obligations the bank information.
Also, such invalidity should extend to exchange bonds 23 May 2012.
Respondents argue the lack of passive legitimacy of Targo Bank and met with their obligations under banking regulations, there was no advice but marketing, there was no defect in the consent and the legal representative of the plaintiffs had held positions in seven companies that had investment experience on such products.
La Juzgadora, He rejects the lack of passive legitimacy of Targo, for employees who were involved in product placement.
Then state that contracts are complex, both its wording and nature, how why and they are qualified by the description itself contained in the prospectus.
By the date of acquisition, October 2009, They were under MiFID, adapted by the Act 47/2007.
Article 79 bis of the Securities Market Act regulates the reporting duties levied on financial institutions that provide investment services. These duties, not limited to the information is fair clear and not misleading (paragraph 2), but also, They must provide "Understandably, adequate information on financial instruments and investment strategies, which shall include guidance and warnings on the risks associated with such instruments or strategies”(paragraph 3).
Article 64 RD 217/2008 of 15 February regulates in detail this reporting obligations and requires the financial institution "Provide its customers with an overview of the nature and risks of financial instruments, taking into account the classification of the client as retail or professional ": It should explain the features of the financial instrument and its risks, the risk of total loss of investment and volatility, inter alia.
To determine the nature of the relationship between the parties, the Judging brings up the TS 20 January 2014 It is indicating that as stated in the STJUE of 30 May 2013 (Genil case 48 S.L.), valuation advice to see if there is to be done with the criteria of Article 52 Directive 2006/73, clarifying the definition of the service of investment advice Article 4.4 Directive 2004/39 / EC. This defines counseling as "Providing personal recommendations to a client, either at his request or at the initiative of the investment firm ". And Article 52 Directive 2006/73 clarifies that when there is personal recommendation "It is presented as suitable for that person or based on a consideration of their personal circumstances. It lacks the consideration of personal recommendation if it is issued exclusively through distribution channels or for the public will ".
In this case, the bank employee offered to companies Bonds, They canceling several deposits were headlines.
On the statements of will
As for clauses that the customer assumes certain risks or unwilling to complete the test, the Supreme Court in its judgment of 18 April 2013 It indicates that such clauses are "Predisposed by professional formulas, You empty of real content if they are contradicted by the facts ": In this case, It has not signed Administrator the appellants in the tests indicate that not even want to complete.
The burden of proof
The burden of proof on the information to be provided by the bank rests on it under Article 217 the LEC.
The error in the consent
The Judging finds that there was error as to the form of conversion of bonds into shares, that was not explained. Also the brochure was delivered once signed purchase orders. The terms of the brochure were confusing and difficult to understand.
Ultimately, the annulment of the purchase contracts of the Convertible Bonds of Banco Popular declares October 2009.
On the exchange
The nullity of the purchase of such Bonds Popular, It extends to the exchange of 2012 to result from the first purchase, in application of the "SIMIS stabunt, fall flour ", namely, They fall together who together are. The Supreme Court has upheld the doctrine of the spillover effects of the annulment sentence sis 22 December 2009, 17 June 2010 and 12 September 2014.
Mutual restitution of all services relating to purchases of ordering Popular convertible bonds, with interest from the subscription and ordered to pay the bank.
The next 25 November 2015 These mandatory convertible bonds of Banco Popular is definitely converted into shares, with losses to customers around 80% Main.