Confirmed Bankinter sentence for breach of information duties










Córdoba Provincial Court dismissed the appeal and confirmed the judgment Bankinter condemning him for breach of the duty of disclosure in Case 4 February 2014, to pay the costs.

The plaintiff, had acquired preference shares de Lehman Brothers por 70.000 euros, advised by the bank and the result was the almost complete loss of their capital. Sued in the Court of First Instance, requesting nullity purchase or alternatively the compensation for breach of contract. We estimated the breach bank. The bank uses before the Provincial Court, rejecting the claims of the same. We see then the main arguments of the judgment.

Recognizing the nature of complex product (fact that today only discuss some banks in their answers).

The applicant is financial conservative, it does not appear that you have previously subscribed high risk products, "Not being arguments for attributing such preparation and expertise that make telematics operations with the bank".

The character complex of the preference shares, especially in cases of non-expert investors, supposed the bank must be extremely diligent in obtaining information about them and also that the information should be provided accurate on products that are hired. Appointment of STS 18 April 2013, in the field of interpretation of a discretionary management contract of investment portfolios, emphasizes the requirement that financial institutions, collect the information on the financial situation of clients, investment experience and investment objectives and to provide a clear and transparent, concrete and easily understood therefor, avoid its misinterpretation and emphasizing the risks, especially in high-risk products.

In this particular case, is considered to not complete and clear information was provided the investor, "Or is acting in good faith when the contract contains a very low risk profile is found and contradictorily select an investment in high-risk '. The reporting requirement established by legal rules is an active and not merely the availability requirement ".

It is considered that there was a investment service contract with financial advice. Not a mere intermediation. It was the bank that decided on the securities portfolio. Fully trusted the portfolio of securities selected by the entity.

Regarding the responsibility for the results cited SAP Barcelona 4 December 2009: "You can only be responsible to the client the unfortunate result of the investment if the manager has played in the commission of their duties diligently (…)”.

Legal warnings bank

Notably, observations of the judgment on the "Document type" the "forms", "Legal notices" or "disclaimers" normally included by banks pretending to serve as a "shield" against possible claims for lack of information. A lo sumo, presumptions would be rebuttable. The SAP of Asturias 15 March 2013 said about this type of legal notices that "Does not mean that it has provided to the consumer, customer or retail investor mandatory information " nor is a presumption "irrebuttable" have fulfilled that obligation, or that the investor does know the risks of investing, which is the objective of the legislation on financial transparency. These clauses are unfair under the provisions of Article 89.1 of RD 1/2007 approving the revised text of the General Law for the Defence of Consumers and Users: Are unfair "statements under desk or fictitious events". Namely, statements take a risk by information that is not given are zero.

Ultimately, the appeal is rejected, the sentence is confirmed and the bank will impose costs appeal.

This statement is important, that although the case is preference shares de Lehman Brothers, their arguments are similarly applicable to other cases of malpractice bank as structured bonds, subordinated debt, subordinated debentures, swaps, investment portfolios and other products with poor risk information to consumers, would have been significant losses.

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