Bonos Popular: New sentence in Mallorca
The Provincial Court of Palma has declared the nullity of a subscription of Popular Bank Bonds 2009 and their exchange, in sentence 30 October 2015.
In that statement some of the most common spots are clarified in such litigation.
The client, acquired 30.000 EUR Redeemable Subordinated Bonds of Banco Popular issuing 2009, in November 2010. From their point of view, they acquired the bonds without proper information, so I filed suit in bringing actions for annulment, resolutoria and damages.
The Court of First Instance number 6 Palma de Mallorca dismissed the claim. So the client, appealed to the Provincial Court.
Investor profile and "family relationships"
The bank said the client (Sra. Petra), He acted in its relations with the bank through his father (D. Happiest), businessman and habitual client Banco Popular. He said properly informed D. Happiest. This is the main criterion in the judgment of the first instance is supported.
However, for living, the bank has not established such financial knowledge of the plaintiff "Be incumbent despite the burden of proof of that fact".
For Hearing, the status of retail investors fell to Dola Petra, and not his father, even if it was he who had held talks with the Banco Popular or who to sign the order value of the Bonds on behalf of his daughter. In the place of signing, Dona Petra figure which shows that the bank was that person (and not his father) which should receive the relevant pre-contractual information.
But for the sake, indicates being an entrepreneur, "Not allowed alone, relaxation of rules on information to retail investors imposed by the Securities Market Law ". Is, brings up the judgment of the German Supreme Court (BGH) of 22 March 2011 It is indicating that even taking the customer a degree in economics, not necessarily know the risks (then an IRS) nor was he willing to accept them.
The information provided by the bank
The Subordinated bonds exchangeable for shares son clasificados como complex product by self- Banco Popular in the securities note sent to the CNMV.
Therefore, you must perform the appropriateness test or suitability.
In the case of Dona Petra, no test was performed before the signing of the bonds, it was the right time. The performance of the test in the post time of redemption, not "healthy" the omission.
Having omitted the bank its obligation to conduct the required test, and observed the violation of reporting standards established by the Securities Market Act, in application of the doctrine of the Supreme Court (SSTS 12 January 2015, 20 January 2014), it is presumed the existence of vice error in the provision of consent.
Cláusulas de exoneración
The exemption clause Bank, indicating "It has informed the customer of the risks of investing" It is a statement of knowledge without probative value (whether it is signed as if it is not). In this respect the judgment of the Plenum of the Supreme Court cited 12 January 2015, which in turn refers to the STS 18 April 2013).
Lack of confirmation
Article 1311 It requires confirmation that there must be knowledge of the cause of nullity and having it ceased, which he was entitled to invoke execute an act that necessarily implies the willingness to renounce.
The swap can not be considered as a tacit confirmation, that was done to "minimize losses" and can not be regarded as an entirely voluntary act because otherwise have occurred in 2012, It would necessarily be made in the 2013.
Among the original contract subscription Bonds and redemption, there is a causal link: When the cause of the first contract, The second cause is orphaned: It applies the principle "Stand flour, fall flour " (They fall together who together are), contained in the judgment of the Supreme Court 17 June 2010.
Also, Article 1208 Civil Code also leads to the same conclusion.
And in this case, void also affects the pledge of the securities was made by notarial deed.
Ultimately, the resource estimates, and the invalidity of the subscription is declared Banco Popular bonds, their exchange and pledging securities, ordering restitution mutual benefit and condemning the bank to pay the costs of the first instance.