Voting shares: CAM and severally condemned Sabadell Foundation
The Provincial Court of Valencia has confirmed the joint condemnation of the CAM to Banco Sabadell Foundation and the placement of voting equity units in sentence CAM 9 March 2016.
The Court of First Instance number 4 Valencia, in sentence 27 July 2015 had estimated demand and severally condemned the CAM Foundation and the Banco Sabadell the return of 5.035 euros that were placed in CAM voting equity units, for lack of consent.
Both CAM and Banco Sabadell Foundation filed appeal to the Provincial Court.
The main arguments of the appellants are lack of passive legitimation and limitation of action.
CAM passive legitimization of Foundation
La Caja de Ahorros del Mediterráneo he issued voting shares in 2008 and he commercialized. This activity is not only a financial business because it is a unique product and earmarked funds raised from own resources of the entity. And those own funds were allocated to the general activity of the Savings Bank, tanto en su vertiente financiera como en su obra social. "It is not possible to discriminate in the accounts of the Savings Bank the ultimate destination of the funds raised in this way”. In fact, in the last general assembly of the CAM 9 July 2012, to approve the financial statements 2011, it was agreed to offset the losses with equity, quedando el valor de las cuotas participativas a cero. This amount had to be used to cover the losses indiscriminate financial and those derived from the social work.
In the segregation of financial business 21 June 2011 to Banco CAM, se establecía la transmisión de "Any other rights and obligations or active or passive legal relationships forming part of or are linked as accessories to effectively segregated assets, which in his case would have been omitted or insufficiently described ". Es clara por tanto, the intention of the participants to transmit all legal relations in the broadest sense, therefore including liability for defective marketing of Participations.
The CAM Bank agreed to take over the repayment obligations of the voting shares.
Quotas were not transmitted because that could not be owned by an entity that was not a Savings Bank.
Moreover, should take into account Article 5 of RD 11/2010 which allows the savings banks would follow to develop its financial business, mediante entidades instrumentales como en este caso a través del Banco CAM.
Therefore, if the CAM Bank had not been absorbed by Banco Sabadell should answer for the damages caused by the activity of the CAM therefore be successor give financial business of the CAM as having received borne at least in part with funds collected assets by Fees Participativas.
Caja de Ahorros del Mediterráneo debería responder (not been extinguished after segregation) being the station, marketer and owner of voting shares, and as the CAM Bank an instrumental entity through which continued to develop its financial business.
CAM is succeeded by the CAM Foundation under the decree 11/2010 modified by Law 9/2012. Mediante escritura de 28 March 2014 the final transformation of CAM in Valencia Foundation Obra Social Caja Mediterráneo occurs (CAM Foundation). The deed provides that the CAM Foundation is the successor to universal title of all assets, assets and liabilities and all rights and obligations and all relationships and legal situations it held the CAM, that under all this is extinguished as a legal entity.
Therefore, no doubt the legitimacy of the CAM passive Foundation as a successor to the CAM.
passive legitimization of Banco de Sabadell
The CAM Bank becomes the property of the Deposit Guarantee Fund of the 15 December 2011. And 1 June 2012, éste vende a Banco Sabadell todas las acciones convirtiéndole en socio único. The 3 December 2012 Banco Sabadell holds the merger of the entity.
"The chain of transmission of responsibility to the co-defendant entity is patent".
For Hearing, in application of the doctrine of the Supreme Court expressed give their judgment of the Full 12 January 2015, the limitation period would not begin until knowledge of the cause that justifies the exercise of the action. Therefore, if repayment was reported the 31 March 2014, it was not until four years later when the action would expire annullability:
"Much less still, We are considering the time they were formally canceled by the Foundation voting shares ".
It also indicates that receipt of returns without complaint is not confirmation of business because to convalidarlo, se requiere conocimiento cabal y sin vicio del mismo, and that is not the case.
In marketing, this is considered advice and no test was performed. Therefore (STS 20 January 2014 and 15 December 2014), it is presumed the existence of error in the consent, which it is considered essential and excusable.
Ultimately, The applications are dismissed and the judgment of the Court of First Instance confirms, jointly condemning Banco Sabadell and the CAM Foundation, to the refund of the amount subscribed voting equity units in CAM.