Bankia punished again for preferential

abogado preferentes subordinadas

The Court of First Instance of Bilbao has declared void subscription orders preference shares and subordinated debentures a client, with reciprocal recovery of benefits and for costs for the bank, in sentence 14 June 2013.

The applicant had Preference Shares Caja Madrid 2009 and Subordinated Notes Caja Madrid 2010, for a total of 250.000 euros. Apply to the Court for annulment error in the consent. It was the bank employee who advised him to subscribe the counterfeit products. Of note is the fact that the contracts were signed at the address of the applicant, that it was an older person with severe vision.

There was a significant relationship of trust with the bank employee.

The judge examines the legal nature of the preference shares and subordinated debentures, describing them as complex products.

As for the lack of consent, the appropriateness test "and took him to his house filled" and the client simply sign. Also, the client had a profile conservative and if he had known the risk of loss, had not acquired.

However, for the Judge, violation of the rules does not lead to invalidity for violation of peremptory norms (Art. 6.3 Civil Code) but should be redirected to the nullity on the grounds of error in the consent.

Refers to the ECJ judgment of 30 May 2013 pointing: "It is for the domestic legal system of each Member State to contractual consequences to be drawn from the failure, by an investment firm that offers investment, assessment of the requirements laid down in Article 19, sections 4 and 5 Directive 2004/39, respecting the principles of equivalence and effectiveness ".

The judge, indicates that the error as invalidating the consent, for invalidating it should be:

  • Essential.
  • To occur at the time of completion of the contract.
  • That is excusable ie, that could have been avoided using a reasonably diligent.

The applicant, is provided consumer so you have coverage General Law for the Defence of Consumers and Users.

Also, the burden of proof having informed correctly corresponds to the bank.

In conclusion, is estimated that there is a significant error, by lie with the basic features of contract, error attributable to the bank for breach of its duty of disclosure.

Demand is estimated and declared invalid subscriptions preference shares and subordinated debentures, mutual ordering restitution of benefits, with assessment of costs to the bank.

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