Bankia Subordinated ordered to Valencia

preferentes, subordinadas, bankia,

 

 

 

 

 

 

 

 

The Court of First Instance No. 21 Valencia has declared void the purchase of 64.000 euros in subordinated debt of ordering restitution plus legal interest from the subscription amount, in sentence 14 October 2013 condemning the bank to pay the costs.

The applicant is a company cooperative which acquired 17 December 2009, subordinated obligations of Bankia by 64.000 euros. The purchase was made by the applicant needed a guarantee Cooperative. Bankia will it be to provide the guarantee, as counter requiring a fixed-term, indicating that it was a product safely and with very good returns. The applicant acted in the belief that it could recover 64.000 euros once the guarantee canceled.

The applicant submits that the subordinated debentures are a financial product complex. Is defined as retail customer and conservative profile. Alleges breach of the duty of the bank to collect your customer information to properly classify and lack of information about the true nature and risks of the product, lack of clarity in drafting the clauses of the contract, existence of a conflict of interest between Bankia and its customers and breach of the duty of loyalty and fidelity.

Bankia argued in its defense of lack of capacity to be sued Bankia, termination of the contract for novation to make the swap, compliance with its reporting obligations and lack of error or defect in the consent.

Judge part of the consideration of the subordinated debentures and product complex. This question is not controversial, but it is essential for you to be a product complex, leads to a reversal of the burden of proof on the right information about. Consider purchasing the product that was advised by the bank.

Then check on the bank's obligations set out in the LMV, namely: Article 78 bis forces classify customers in professional and retail. Article 79 imposes an obligation of diligence and transparency, looking after the interests of customers as one's own. The art. 79 bis regulates the reporting obligations.

In DR 217/08 the suitability test is regulated in Article 72.

The bank failed in its duty to classify your customer and get the effect you necessary information before its recommendation.

The product information is deemed clearly insufficient. The duties of loyalty and transparency also breached, that while they placed this customer the product with a yield of Euribor plus 0,10% in the tenth issue of debentures, He was offering the 7,25% annual.

The judge finds that there Error as invalidating the consent, being error excusable and you there is a causal link between the error and the acquisition of subordinated debentures.

As the exchange, cites Article 1.208 Civil Code: "The novation is void if the original obligation was also, unless the cause of nullity may be invoked only by the debtor or the ratification validates acts originally null ". And Article 1.311 of the Civil Code provides that confirmation can be made expressly or impliedly. It is understood that there is tacit conformation, Cando with knowledge of the cause of invalidity and having this ceased, one who has the right to invoke execute an act which necessarily implies the willingness to renounce ".

The plaintiff had no knowledge of the defect or its crippling virtuality, so there can be no statute of novation.

Ultimately, the invalidity of declaring purchasing subordinated debentures, mutual ordering recovery of benefits, with payment of legal interest from the date of purchase for costs to the bank.

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