Exchange Bankinter in Madrid declared null
The Provincial Court of Madrid has confirmed the nullity of contract of exchange rates / fees Bankinter sentence 8 April 2016.
Customers were Retailers, and They had no speculative investments and risk products. The 11 September 2007 suscribieron un préstamo con Bankinter. Days later, the bank went to customers to offer a product of interest coverage, which did not involve spending hiring or cancellation. So customers accepted it thinking it was as safe and that they involve no loss of any kind.
They were not informed that this was a complex product, which could generate considerable negative settlement amount.
Bankinter meanwhile answered the complaint alleging expiration to have been more than 4 years from recruitment and He denies that there was mistake alguno al considerar que los clientes conocían la naturaleza y funcionalidad del contrato. Para la entidad financiera, by accepting the negative liquidations it was validated or confirmed the contract allegedly null. El banco observó todas las normas necesarias para la comercialización de la permuta financiera por tanto, not concur budgets claim damages.
The Court of First Instance No. 91 Madrid, descartó la caducidad y la doctrina de los actos propios. Consideró que se produjo un error invalidante del consentimiento y estimated demand, declarando la nulidad del contrato de intercambio tipos/cuotas” signed in September 2007, in sentence 13 June 2014 and condemning Bankinter to reimburse 19.943 euros, with legal interest and payment of costs.
Bankinter presentó recurso de apelación ante la Audiencia Provincial de Madrid.
For the Board, even before incorporation into our domestic law of the MiFID, the bank had been obliged to inform the customer of the risks associated with these products, Pick Up in Royal Decree 629/1993: Financial institutions should act impartially and in good faith, without putting their own interests to those of their customers, of those who were required to report on their financial situation, investment experience and investment objectives. The art. 5 Annex regulated the duty of disclosure in greater detail.
De la prueba practicada consta que el producto fue ofrecido por la entidad bancaria como recomendación. But also, para la Sala, exchange rate / fees, It was marketed as insurance coverage:
"What is striking is that the documents attached to the application (doc.4 5 ) and own manifestations of the employee who sold the product , it follows that the appellant deployed a commercial and advertising policy designed to induce the customer to identify the swap contract shares with a sort of insurance coverage (without giving the proper legal course rating of the insurance contract) against rising type Of interest, and focusing sales efforts in an unbalanced way, interested and suggestive , enhancing the advantages or benefits of the product (protection against the announced or expected increases euribor) against the risks of negative settlements that could lead to the eventual fall of types."
And highlights the following points:
1.- The client could never get to know the interest rate that was applied to calculate the fee.
2.- The form used for marketing unbalanced way impinged on the concept of fixed quota, over the effects that a rate cut could mean for the customer.
No existe prueba alguna de haber informado adecuadamente sobre el producto y el propio contrato dejaba mucho que desear. En palabras de la propia Sala:
"The contract can not be at this point more vague and generic".
No pre-contractual information offered, not the suitability of the product was studied, It was not informed of the risks assumed and reported no cancellation costs.
El clausulado no cumple con las especificaciones de claridad y transparencia exigidas por la normativa pre MIFID y la LCGC.
The defendant did not provide either in writing or verbally to the explanation actors of the real risks of the product.
The contract He did not indicate the interest rate to be applied but only referred to R0004 code.
Last, el contrato no contenía información alguna sobre el coste de cancelación anticipada del producto ni de la fórmula a emplear para su cálculo. And the STS nº 491/2015 of 15 September, It makes clear that the cost of cancellation is an essential element of the contract that determines the nullity by mistake on it.
Payment of the settlement does not confirm the contract because it involves a conclusive determination not claim.
Ultimately, considera que el contract was flawed by a fundamental error and excusable on the nature and operation of the product.
the nullity of the exchange rate / shares subscribed is confirmed by Bankinter, refund the amount overpaid is ordered and sentenced the bank to pay the costs.