A vueltas con la nulidad de la renuncia por consumidores

renuncia

 

The waiver by consumers may be declared void to cause a significant imbalance in the rights and obligations of the parties to the detriment of consumers and users, against the requirements of good faith

 

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It not always voids the clause stating the renunciation of the exercise of actions or claims consumers. It is important to take into account certain requirements to make it valid.

The Supreme Court in its judgment 137/2019 of 6 March 2019 It has been spoken about. A marriage acquired securities of a financial institution. several periods of losses occur in the value of securities. Finally, They accepted an offer from the company to recoup some of the economic investment. So good, acceptance supposed, mandatorily, the waiver of the right to exercise actions or claims against the entity.

Antecedentes

Ms. Herminia and D. Adolfo, signed the 31 January 2006 an order of acquisition 12 subordinated debt securities Bank of Spain Caja Salamanca y Soria Investment SAU (onwards, Ceiss). They were exchanged on the 21 January 2008 By others 12 subordinated debt securities. The latter with a nominal value of 1.000 euros each, making a total of 12.000 euros.

In May 2013 they traded, mandatorily, the titles 10.800 contingent convertible bonds into shares of Banco Ceiss. These securities were worth a 1 euro each. Making a total of 10.800 euros, which resulted in an economic loss.

The 29 November 2013, They received an offer from Ceiss. They traded, voluntarily, their 10.800 bonds 1.555 contingently convertible bonds necessary and Unicaja Banco, plus 1.555 convertible perpetual bonds in Banco Unicaja. Each of these bonds had a nominal value 1 euro. Making a total of 3.110 euros, which meant a great economic loss. But, this offer was conditional, among others:

– Obtaining a minimum threshold of acceptance by the recipients (namely, other investors in the same situation).

– Acceptance of reducing the nominal value of securities.

the implementation of a mechanism for review by the Governing Committee of the Fund for Orderly Bank Restructuring was reflected in the offer document (onwards, FROB). If you had reached the minimum acceptance threshold, the review mechanism was initiated. It was that the Bondholders Ceiss Bank could obtain an additional amount for the loss on investment. So good, two requirements were added more:

– “Waive any right to claim or legal action or extrajudicial against Unicaja Bank and / or Ceiss and / or bank Ceiss connection with the marketing of hybrid instruments by the latter and the exchange subsequently made by the FROB

– The customer will execute an affidavit of demonstrations.

The 20 December 2013 was the deadline to accept the offer.

The 2 December 2013 D. Adolfo died. his heir, Ms. Innocence, He succeeded to his position.

The 17 December 2013, Ms. Herminia and Ms. innocence signed the affidavit of demonstrations. the act, among other manifestations, He expressed:

IN.- That the holder knows the terms and conditions of the exchange offer UNICAJA BANK, and decided to accept it knowing that it,

– It involves express waiver the exercise of any claim or judicial or extrajudicial present or future action, in the terms included in the prospectus, against CEISS, and / or bank CEISS and / or UNICAJA and / or UNICAJA BANK.

– The effectiveness of the exchange and activation of the review mechanism are conditional upon acceptance percentages obtained by shareholders and bondholders under the terms resulting from the documents received by the holder.

And still:

"Notwithstanding the above, states that:

  1. Investors who accept the exchange offer proposed by Unicaja Banco will significantly reduced the nominal value of the securities received after the exchange by the FROB.
  2. The power of the issuer to unilaterally suspend payment of the coupons is a factor that reduces the value of contingently convertible bonds and necessary and contingently convertible perpetual bonds of Banco Unicaja.
  3. Acceptance of the offer of Unicaja Banco involves waiving any right to claims or lawsuits or extrajudicial against Unicaja and / or Unicaja Bank and / or Ceiss and / or bank Ceiss connection with the marketing of hybrid instruments by the latter and the exchange subsequently made by the FROB. (…)
  4. Last, It must be noted that retail investors who choose not to accept the offer of Unicaja Banco mechanism will be excluded from the FROB plans to implement for reviewing marketing preference shares and / or subordinated debt by banks leading to bank Ceiss. (…)”.

También, the 17 December 2013, were given a letter from the Bank Ceiss in which they were informed that "prevents the assessment consider the operation as convenient ". Thus, Ms. Herminia wrote in the conversion order: “This product is complex and is considered not suitable for me "and, “I have not been advised by Unicaja Bank or by Bank CEISS in this operation”.

The 23 December 2013, Ms. Herminia signed the application form for the application of review mechanism. The expert hired by the FROB to decide the review mechanism (PwC auditors S.l.), He rejected the request for D. Herminia. He justified as: “On the date of the contract for the product ... You met the right profile for the complexity and nature of the investment product CEISS ". They were informed that the next month could file a "Request for Application Mechanism established by Unicaja Banco Accompaniment. this mechanism, should be favorable, would allow him to regain 75% the difference between the face value of the bonds Ceiss and valuation of bonds Unicaja, and "interest differential". Ms. Herminia signed the application but never got an answer.

The 9 September 2014, Ms. Herminia and Mrs. Inocencia filed suit against Unicaja Banco CEISS and S.A. They asked to be declared the invalidity of the renunciation of the exercise of actions, procurement of subordinated debentures annulment Cash in Spain 2006 and 2010 and successive swaps, restoring to the amount of 12.000 inverted euros, along with their fees and interest. Subsidiarily, the termination of contracts requested for breach of the obligations of advice and information, compensation for damages for bad banking practice, or resolution by application of the clause matters stand.

Primera Instancia

The 31 July 2015 the Court of First Instance 2 Valladolid gave judgment 145/2015. He dismissed the claim. He considered that the resignation of shares Contained in the notarial certificate was valid. He condemned the applicants to pay the costs.

Provincial Court

The applicants appealed. Ceiss Bank opposed the application. The 13 April 2016 the First Section of the Provincial Court of Valladolid gave judgment. He dismissed the appeal because it considered correct ruling of first instance. He condemned the appellants to pay the costs.

Supreme Court

 Ms. Herminia and Mrs. Inocencia filed an extraordinary appeal for procedural infringement and appeal against the judgment of the Provincial Court. In both requested annulment of the resignation of shares and the return of the actions to the instance for the annulment of the contract purchase of financial products will be declared.

 extraordinary appeal for procedural infringement

The only plea was the violation of art. 24 Spanish Constitution (EC), los arts. 10, 82, 83 and 86.7 the revised text of the General Law for the Defense of Consumers and Users (later, TRLGDCU), Article. 3 Directive 93/13 / EEC and the case law that develops. All, concerning the validity of the resignation of shares by a consumer. The resignation of law was made in favor of Banco Ceiss as the review mechanism would only recover part of the investment. Also, It was the FROB who decided who had access to the review, because the arbitrator chosen (Price Waterhouse) He was auditor of the bank for years. It was argued in the appeal that they were “conditional waivers, generic, uncertain, undetermined and dependent on third party compliance linked to the FROB and Unicaja”, being null and void.

The Chamber rejected the reason for the appeal. It considered that the appellants' allegations related to substantive issues (vice, error, abuse of rights, infringement valid waiver of rights requirements). The Chamber determined that such allegations should have been raised in the appeal. In the appeal for procedural infringement, only the infringement of the constitutional jurisprudence on the incompatibility of the waiver of rights and art. 24 EC. The Chamber cited his sentence 65/2009 of 9 March, by appointment at STC 76/1990: “the fundamental right to effective judicial protection is "inalienable and unavailable", which does not prevent that the resignation to its exercise can be considered constitutionally legitimate when it benefits the interested party… ”. The benefit was access to the review mechanism. There was no violation of the right to effective judicial protection. So good, the Chamber appreciated that there was a great imbalance of rights and obligations, but as a substantive issue it should be dealt with through the appeal channel.

 Appeal

It was based on three reasons. First, infringement of arts. 10, 82, 83 and 86.7 TRLGDCU, art. 3 of Directive 93/13 / EEC and the jurisprudence that develops them in the sense of the valid and effective resignation of actions. Second, infringement of arts. 1265, 1266 and 1817 CC y art. 7 CCIV. And, the third derived from the existence of contradictory jurisprudence of the Provincial Court on the validity of the waiver of actions by consumers, claiming the arts. 10, 82, 83 and 86.7 TRLGDCU, art. 3 of Directive 93/13 / EEC and arts. 1265, 1266 and 1817 CC y art. 7 CCIV.

As for the first ground of appeal. Judgments were cited that did not consider the waiver of rights, specifically from Provincial Courts and the Supreme Court.

The Chamber considered that the resignation of shares did not violate art. 10 of the TRLGDCU because it is not a prior waiver of the rights that the norm recognizes. But, the resignation was given on rights of shares already born. He alleged, that the actions could have been exercised by the plaintiffs, But it was not the case. It was resigned after the birth of the shares and not before (prohibited situation). So good, the room added, that although it was not before the situation of art. 10 TRLGDCU, the clause that included the waiver of shares or claims could be abusive. Specifically, generated a "significant imbalance in the rights and obligations of the parties, against the requirements of good faith (art. 82.1 TRLGDCU)”. He added that, the art ban. 4.2 of Directive 93/13 / EEC on the control of the content of the clauses and therefore, it could be revised in accordance with art. 82.1 TRLGDCU. He considered the Chamber, investors had no other reasonable alternatives to avoid losing all their financial investment in Banco Ceiss bonds. Thus, they were forced to accept the offer made, despite the waiver of rights that this entailed. “It was the imposition of the waiver to request effective judicial protection in a borderline situation for which the client is not responsible ”. Also, were subject to imprecise conditions like, to obtain the membership of an undetermined percentage of shareholders. Thus, “the general condition in which the resignation of the clients to the exercise of any type of present or future claim or judicial or extrajudicial action is established, causes a significant imbalance in the rights and obligations of the parties to the detriment of the consumer and user, against the demands of good faith ”.

The estimation of the first ground of appeal, made it unnecessary to examine the rest.

Finally, the high court issued a judgment in which the contested judgment was annulled and the proceedings were returned to the Provincial Court for a new sentence to be handed down based on the annulment of the resignation of shares. There was no imposition of costs in the appeal. Regarding the extraordinary appeal for procedural infringement, the appellants were ordered to pay the costs.

Conclusion

The resignation to the exercise of any claim or judicial or extrajudicial action, it will not always be null. So that the resignation is null, must exercise on future actions (art. 10 TRLGDCU), being valid the resignation made on actions already born and that could be exercised. The renunciation of actions or claims will also be void., when the clause containing it is considered abusive for producing an imbalance between the parties to the detriment of the consumer.

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