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 reclamar estructurados

In some structured products, It breached the contract by failing to apply the anti-dilution measures. This allows any investor claim regardless of their profile and the information provided

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In the last decade, deposits or structured bonds were massively marketed, atypical financial contracts and the like, in which the result of the investment depended on the price of the underlying. Many of them, they had the shares of a bank like Santander as their underlying. In such products, normally included a “anti-dilution” clause in which it was foreseen that if the company carried out structural operations (normally capital increases), the exchange formula would have to be recalculated.

However, in most cases, said recalculation was not done.  The case of Banco Santander is especially striking: Let us see an example:  Between 2011 and 2013, Almost every quarter Banco Santander made a capital increase. To date 1 February 2011, its share capital was made up of 8,440,275,004 shares. In the event that a structured product, settled with delivery of shares, the client would receive shares of a company whose capital was divided by 8.440.275.004 actions.

However, The Bank carried out capital increases on 3 November 2011, 30 December 2011, 1 February 2012, 3 May 2012, 8 June 2012, 6 July 2012, 1 August 2012, 8 August 2012, 7 September 2012, 5 November 2012 , and 31 January 2013.

In April 2013 the bank's capital was divided between 10.538.683.145 Actions.

If a customer purchased from 2011 structured products with Banco Santander shares as underlying, there was the possibility of receiving shares of a Bank, whose capital was made up of  8.440.275.004 Actions. Yes in 2013, the product is liquidated and shares are delivered because its price is below the “barrera”, at that time the entity's capital was composed of  10.538.683.145 Actions. The capital had been diluted by 24'86%.

It is evident that if the capital of a company is divided among more shares, each action is worth less.

 Normally, This stipulation was included in the contract itself. We attach as an example a cutout of one of them: 

anti-dilution clauseIf the Bank had fulfilled the contract and applied the “anti-dilution” clause, approximately one 24% more than the number of shares initially stipulated.

The most important thing about this approach is that allows to claim for the breach of contract to any investor, regardless of their profile and the information they could provide you about the product:  It is not relevant that they had other risky investments or that they were considered “financial experts”, neither the explanations nor documents that they could give him:  Any investor can claim compliance with the contract.

The deadline to claim compliance, in the vast majority of cases it will end in October 2020.

And as a sample of this approach, we bring up the judgment of the Court of Fuengirola nº 5 of 17 January 2019.  Comrade Jose Antonio Ballesteros conducted the procedure, reference lawyer in this matter.

Antecedentes

Clients had invested 50.000 euros in a structured deposit through Bankinter, underlying Banco Santander's share. It is proven that before hiring, customers had received the corresponding product explanatory brochure. This brochure states that it was a product without guaranteed capital, High Risk, where you could lose until 100% capital.

Due date, as Banco Santander's stock is below the barrier, only returned to customers 24.550 euros the 10 May 2016. They had lost 25.450 euros.

So given the impossibility of reaching an agreement, lawsuit was filed against Bankinter.

Primera instancia

As a main action, Bankinter was sentenced to correctly fulfill the contract  “Deposit Financial Value Concert” subscribed on 4 May 2011, adjusting the underlying value, the aforementioned action of Banco Santander, based on the capital increases carried out:  In this way the bank would have to compensate with 50.000 euros, plus the anticipated interests.

In the alternative, the cancellation action was exercised due to an error in the consent.

In view of the expert report and the brochures provided, the court considers that the planned anti-dilution adjustments had to be made and therefore, estimated demand exercised principally and condemns Bankinter to compliance, paying the difference of 52.450 euros in favor of customers, with assessment of costs to the Bank.

A new way to claim structured products

Ultimately, customers who suffered losses from contracting structured products, regardless of your profile, even with investments of considerable volume, have the possibility of claim compliance with the contract, the application of anti-dilution mechanisms and therefore, recovering your money.

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