Senior and subordinated: La venta de acciones no impide la anulación

participaciones preferentes

The sale of shares obtained by the exchange of preferred shares does not preclude the estimation of the action for annulment.

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In the case of preferred shares and subordinated bonds placed with dereliction of duty information, the exchange for shares involves confirmation or validation. And the sale of shares obtained does not preclude bringing an action for annulment error consent.

This was stated by the Supreme Court in its judgment Ollie # 582/2017, of 25/10/2017.


Between 2001 and 2010, Ms.. Delia contracted with Caixa Catalunya acquiring entity subordinated debentures and preferred shares, por un importe total de 160.000 €.

Subsequently, At the end of the year 2013, these products were mandatorily exchanged for shares Catalunya Banc SA, pursuant to resolution 7 June 2013, of the Governing Committee of the Fund for Orderly Bank Restructuring (FROB), dictated in execution of the Plan Resolution Catalunyacaixa SA.

After the exchange, it was mandatory under that resolution, holders of shares could choose to voluntarily sell the Deposit Guarantee Fund (FGD). That's what made Mrs.. Delia, obtaining in the process 106.412,18 €, so the total loss he suffered was 53.587,82 €. At the time of sale, Ms.. Delia said She made the sale of the shares as the only possible option to minimize losses, and not give up any of the legal actions that may correspond.

En esas circunstancias, the 24 January 2014 Ms.. Delia formulated Catalonia lawsuit against Bank SAU, requesting that contracts for the purchase of preferred shares and subordinated obligations annulment, by mistake vice attend consent, and an order that the bank to return 160.000 Initially invested €, plus legal interest.

Primera instancia

Dicha demanda fue Estimated full by the Court of 1st Instance Ollie # 10 Valencia in Case 20 October 2014.


Contra esa resolución, Catalunyacaixa SAU appealed, that was estimated by the Provincial Court of Valencia in Case 18 May 2015, to considering the exchange of subordinated debentures and preferred shares and the subsequent sale of the shares obtained caused the extinction of the action of nullity by mistake consent.

Supreme Court

And the embroidery, Ms.. Delia decided to bring an appeal against the judgment of the Audiencia Provincial. In his appeal he insisted that itself had locus standi (despite sale) to exercise the action of nullity, and the mandatory exchange and subsequent sale of shares obtained did not imply recognition of purchase orders.

The Supreme Court ruled based on the following arguments:

On the one hand, in relation to the standing of Ms.. Delia bringing proceedings for annulment after the mandatory exchange and subsequent sale of shares obtained with the same, the Supreme Court referred to its judgment Ollie # 448/2017, of 13 July, concluding that it could not be considered voluntary sale of the shares subject to mandatory exchange to deprive purchasers of the securities exchanged their action annullability.

The fundamental reason is that Article 1.307 Civil Code, before the inability to restore the thing object of the contract canceled, does not deprive the action of nullity to the Contracting affected by the defect of nullity, but modulates the way it should be performed restitution, generally equivalent. The article states the following: "Whenever the bound by the declaration of invalidity to the return of the thing can not return for having lost, shall return the fruits received and the value it had when the thing was lost, with interest from the same date. "

Additionally, continues to indicate the Supreme Court, Nor can apply Article 1.314 Civil Code (which establishes the extinction of the action for annulment when the exercise was lost by negligence or fraud the thing object of the contract) because, although the exchange for shares and selling these to the FDG involved the loss of preferred shares and subordinated obligations, it It was not fraud or negligence that could be attributed to Ms.. Delia, but came imposed by the FROB.

And, on the other hand, as regards the effectiveness of the mandatory exchange for shares and selling it to the FGD, el Tribunal Supremo concluyó que I could not serve as a validation or confirmation of contracts for the purchase of preferred shares and subordinated debentures. The main reason was that the exchange of such securities for shares had been imposed by the FROB, so it could not be a voluntary act that arose from the will of Ms.. Delia. From there, following the Supreme Court, Nor can it be effective Confirmatory the subsequent sale of the shares obtained from the exchange to the FGD, to the extent that he had expressly stated that he did not renounce any action that could be eligible.

Además de lo anterior, the Supreme Court also referred to two issues that arise in all disputes such contracts: the expiration of the action of nullity, and the failure of the financial institution of their reporting obligations.

Regarding the possible expiration of the action, the Supreme Court, con cita de su STS 769/2014, of 12 January 2015, He recalled that "In cases of complex financial contracts on opening day for calculating the expiry date of the action of nullity by vice error consent it can not be fixed before the customer may have become aware of the existence of such error". Traditionally, then making knowledge has been established by case law on the suspension of liquidation of benefits, the intervention of the FROB or, and general, any event that allows "real understanding of the characteristics and risks of the complex product purchased".

The above, the court concluded that Ms.. Delia could not have knowledge of the existence of the error until it was approved by the FROB Plan Resolution Catalunyacaixa, S.A., the 27 November 2012, so that, al tiempo de presentarse la demanda, the 24 January 2014, no later than four years she had elapsed under Article 1.301 Civil Code.

Last, the Supreme Court was also very clear to the state that Caixa Catalunya had breached the duty of information to the non-professional client, It inasmuch as it did not inform Ms.. Delia nature, characteristics and risks of the product, or purchase orders contained enough information to respect.

The breach of the obligation to report, as she recalled by the court itself, allows retail customer presume the lack of sufficient knowledge about the contracted product and its associated risks vitiating consent. that presumption, although he admits evidence to the contrary, It could not be invalidated by the bank in the process.

Accordingly, the Supreme Court upheld the appeal brought by Ms. Delia, He overturned the judgment on appeal, and he upheld the first instance judgment condemning Catalunyacaixa, S.A.U. to return the,,es,plus legal interest from the date of subscription,,es,estimated by the Court of First Instance Ollie #,,es,against which I appealed Banco Santander S.A.,,es,Include the following reasoning Audience,,es,Although the contract is completed before the entry into force of MiFID,,es,in the version in force at the time of recruitment and provided that,,es,entities acted in the stock market should ensure that they have all the necessary information about their customers and keep them always adequately informed,,es,The shipment from the bank card customers in the negative performance of the product is reflected irrelevant,,es 160.000 Initially invested €, statutory interest.

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