Confirmed void Bankinter Structured Bonds in Valencia
The Provincial Court of Valencia has made the nullity of the execution of a Structured Bono with Bankinter sentence 16 September 2015.
The plaintiffs had acquired 100.000 denominated in dollars Welcom Bono USD: Is a structured bond issued by Societe Generale, I had as underlying the shares of BBVA, Telefónica and Iberdrola. Given the losses incurred, They sued the bank.
The Court of First Instance number 4, in sentence 23 February 2015, fully upheld the claim, with assessment of costs to the bank. He felt that lack of consent was attending to clients generated by the absence of prior information sufficient. Also advice was poor by offering a product inappropriate moderate investor profile of purchasers to.
Bankinter stands appeal to the Provincial Court of Valencia, He is claiming to have fulfilled its reporting obligations so that the applicants were aware of the risks assumed and therefore, there was no consent disabling error in the worst case, it would not be essential nor excusable.
The plaintiffs were particular, without special knowledge in investment matters. And even though one of them was businessman, He had no special financial knowledge. They had other equity investments, but these are not complex products. In the questionnaire which had been submitted to the applicant, had indicated that his It was moderate investor profile.
Para la sala, Bankinter developed a work financial advice, in the light of what is indicated in the document of the Committe of European Securities Regulators CESR called "Questions and Answers, Understanding the definition of advice under Mifid” (ref CESR/10-293), relative to the StJu of 30 May 2013 (Genil case 48 S.L. C-604/2011) to be presented as suitable for the customer the product.
The burden of proof falls on the information bank and proof of the error lies with the customer.
No evidence that the bank had made adequate information work. The information provided by the bank does not come signed by the parties concerned and was not provided before concluding the contract.
Also, the bank employee in his statement, He indicated that the risk was similar to the actions and does not contain a financial derivative: If he did not know the true nature of what they advised, hardly could properly inform the customer.
If declared by the client profile was moderate, the bank should not have offered a high-risk (SAP Valencia 14 December 2011 and 8 February 2012).
The legal notices or "Disclaimers" bank, not relieve the bank of responsibility, because under the doctrine of the Supreme Court (STS 12 January 2015) such particulars predisposed by the bank, consisting of statements science, not of will, They are empty of content to be contradicted by the facts and therefore, no effect.
Bankinter made a test of convenience, but He failed the test of suitability that was what was required perform, He is having advised the customer.
Due to the lack of information, occurs the customer error, It is essential (knowledge about risk taking is essential according to the Supreme Court Judgment 12 January 2015) and it is excusable (the bank has a duty to actively and in good time information (STS 12 January 2015).
Ultimately, the appeal is dismissed and bank the invalidity of the subscription of the Bonds Structured Welcom USD is confirmed.
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