CaixaBank responsibility Bankpime

Caixabank bankpime

 

We collect the most recent resolutions declaring the responsibility of CaixaBank placement of financial products by Bankpime

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The 30 September 2011, CaixaBank bought by Bankpime 16 million. Although it was intended in agreement merger hold harmless Caixabank by responsibilities that might arise from the placement of complex financial products by Bankpime, Courts have order in this matter, declaring the responsibility of CaixaBank, as successor to Bankpime.

The question was left clear in the judgment of the House of the Supreme Court No. 652/2017 of 29 November. From the same, there have been resolutions confirming the doctrine. Is a brief compilation of the most recent (énfasis nuestro).

STS 257/2018, of 26 April

We continue to address the arguments already discussed in the judgment of the full Court 652/2017, of 29 November, where we boarded a nearly identical course to which it is the subject of this resource, and in which the same questions were posed in the present application, without the appellant has presented arguments that lead us to modify the criteria and sat in the full sentence.

[…]

One interpretation of this clause as CaixaBank holds is not admissible. Pretender oppose it with third parties outside of the contract held with Bankpime to be exempted from liability to those third disappoint the legitimate rights of the bank customer to protect its contractual position in a case of transmission of the banking business as an economic unit. Especially in a case like this, in which the assignor is completely detached from its banking business and almost uninterruptedly, renounced the authorization to operate as a credit institution and entered contest that ended in liquidation is not approved the agreement.

Por tal razón, this clause It lacks effective against third parties not involved in the contract, as in the case of customers Bankpime that the transmission of the banking business passed to me to be of CaixaBank.

[…]

A have occurred the, under the legal transaction concluded between CaixaBank and Bankpime, the global assignment of contracts concluded by Bankpime with its customers as an integral element of the transmission of the banking business, as an economic unit, one to another entity, the transfer of the legal position that the transferor had in contracts with customers in the development of the banking business passed to be considered full.

It is not acceptable that the subrogation of the transferee of the transferor rather be done in a way that allows the transferee to enjoy the benefits that such contracts involve you, but frees you from the responsibilities incurred by the transferor at the conclusion of such contracts, which is what means in practice CaixaBank's claim the protection of that clause, because such a claim implies defrauding the legitimate rights of bank customers, to deprive them of the actions that can be exercised on the basis of contracts with the bank which have become customers under the transfer of the banking business conducted and has assumed the contractual position of the transferor bank.

[…]

In view of the above, this end of the transfer agreement concluded between Bankpime and CaixaBank must be interpreted as meaning that that was forced to leave this harmless for claims brought against him customers in their day were Bankpime when such claims were based on facts occurred before transmission of the banking business, so CaixaBank able to claim compensation for the loss that would involve these claims.

[…]

this court, in previous judgments, He has recognized the passive standing of the bank that sells its customers a product investment when they exercise against that an action for annulment and demand the restitution of what they invested. We did in the judgments 769/2014, of 12 January, 625/2016, of 24 October, and 718/2016, of 1 December, inter. We have done most recently and in a manner widespread in the sentence 477/2017, of 20 July.

We have stated in that judgment that when the applicant maintains only the contractual relationship with the investment firm of which is client, in this case a bank, and acquires a product such investment company markets, the business does not really work as an intermediary by the investment firm between buyer client and the issuer of the product investment or former holder transmitting, but as a sale between the investment firm and its client, which relates to a product (in this case, stakes) that the investment firm is responsible for obtaining directly from the issuer or a previous owner and, to the transmit his client, makes a profit that more closely resembles the margin of the dealer that the commission of the agent.

[…]

Under these circumstances, it should be recognized passive standing to the investment firm that sells the product investment, in this case a bank, to support the action of nullity of the contract by the customer won product and, on conviction, the customer repays the provision in the price consistent this paid for the acquisition the product.

[…]

The legal transaction concluded by the two banks was not intended transfer of certain contracts concluded by Bankpime, but the transmission of its banking business (it was the activity of its corporate purpose) as an economic unit. As part of this transfer of the banking business as an economic unit, Bankpime it detached from the assets necessary for the development of the banking business, which he transmitted to CaixaBank, including the assignment of contracts with customers, and resigned shortly after the authorization to operate as a credit institution.

[…]

Therefore, Bankpime transmission CaixaBank of its banking business as an economic unit and, as a component of said transmission, Bankpime replacement by CaixaBank in the contractual position than that held in front of each of its customers in the banking business, justifies that they could exercise against CaixaBank shares contractual invalidity, vice error, For contracts concluded by Bankpime with its customers before transmission of the banking business, notwithstanding the CaixaBank shares can exercise against Bankpime to be harmless against such claims, as provided in the agreement between the two banks.

STS 71/2018, of 13 February 2018

A have occurred the, under the legal transaction concluded between CaixaBank and Bankpime, the global assignment of contracts concluded by Bankpime with its customers as an integral element of the transmission of the banking business, as an economic unit, one to another entity, the transfer of the legal position that the transferor had in contracts with customers in the development of the banking business passed to be considered full. Accepted the thesis of CaixaBank, would lead to the absurdity that, even when the transmission of the banking business was global, some legal relationships with some clients who became Caixabank, would return to Bankpime solely because of conflicting or inconveniences to be Caixabank, and that under a hidden clause for the same customers and despite having ceased operations in the banking business Bankpime.

Thus, against these customers, no provision that effectively transmitted are not the "contingent liabilities" consisting of "contractual claims […] future that may result from the activity of the seller […]».

[…]

The cause of the transfer of banking contracts Bankpime CaixaBank is precisely the transmission of the banking business as an economic unit, whose operation is framed and made sense. The particularity of the cause of the transfer of contracts results in that such a transfer of contracts under the transfer agreement included both the banking business loans, rights and, and general, active positions of the bank transferor with respect to its customers, the obligations, responsibilities and, and general, liability positions of the entity towards its customers. Among them is passively support the actions of nullity of contracts concluded by Bankpime with customers and restore the benefits received if such actions were estimated.

STS 55/2018, of 01 February 2018

The clause in CaixaBank bases its arguments does not mean, how you want, the exclusion of certain liabilities in the transmission of the banking business, or exclusion of certain contracts in the transfer of contracts made by Bankpime to Caixabank, excluding contracts, moreover, It was incompatible with the transmission of the banking business as an economic unit.

What actually was intended with that clause was to convey the banking business to CaixaBank Bankpime, CaixaBank lease contracts concluded by Bankpime with its customers in the framework of this business, but CaixaBank assume any liability to the assigned customers. And it was intended to do so without the knowledge of customers 'assigned' or to have acquiesced.

[…]

Pretender oppose it with third parties outside of the contract held with Bankpime to be exempted from liability to those third parties disappoint the legitimate rights of the bank customer to protect its contractual position in a case of transmission of the banking business as an economic unit. Especially in a case like this, in which the assignor is completely detached from its banking business and almost uninterruptedly, renounced the authorization to operate as a credit institution and entered contest that ended in liquidation is not approved the agreement.

Por tal razón, that clause is ineffective against third parties not involved in the contract, as in the case of customers Bankpime that the transmission of the banking business passed to me to be of CaixaBank.

A have occurred the, under the legal transaction concluded between CaixaBank and Bankpime, the global assignment of contracts concluded by Bankpime with its customers as an integral element of the transmission of the banking business, as an economic unit, one to another entity, the transfer of the legal position that the transferor had in contracts with customers in the development of the banking business passed to be considered full.

[…]

In view of the above, this end of the transfer agreement concluded between Bankpime and CaixaBank must be interpreted as meaning that that was forced to leave this harmless for claims brought against him customers in their day were Bankpime when such claims were based on events that occurred prior to the transfer of the banking business, so CaixaBank able to claim compensation for the loss that would involve these claims.

[…]

Therefore, Bankpime transmission CaixaBank of its banking business as an economic unit and, as a component of said transmission, Bankpime replacement by CaixaBank in the contractual position than that held in front of each of its customers in the banking business, justifies that they could exercise against CaixaBank shares contractual invalidity, vice error, For contracts concluded by Bankpime with its customers before transmission of the banking business, notwithstanding the CaixaBank shares can exercise against Bankpime to be harmless against such claims, as provided in the agreement between the two banks.

STS 54/2018, of 01 February 2018

A have occurred the, under the legal transaction concluded between CaixaBank and Bankpime, the global assignment of contracts concluded by Bankpime with its customers as an integral element of the transmission of the banking business, as an economic unit, one to another entity, the transfer of the legal position that the transferor had in contracts with customers in the development of the banking business passed to be considered full.

It is not acceptable that the subrogation of the transferee of the transferor rather be done in a way that allows the transferee to enjoy the benefits that such contracts involve you, but frees you from the responsibilities incurred by the transferor at the conclusion of such contracts, which is what means in practice CaixaBank's claim the protection of that clause, because such a claim implies defrauding the legitimate rights of bank customers, to deprive them of the actions that can be exercised on the basis of contracts with the bank which have become customers under the transfer of the banking business conducted and has assumed the contractual position of the transferor bank.

[…]

The legal transaction concluded by the two banks was not intended transfer of certain contracts concluded by Bankpime, but the transmission of its banking business (it was the activity of its corporate purpose) as an economic unit. As part of this transfer of the banking business as an economic unit, Bankpime it detached from the assets necessary for the development of the banking business, which he transmitted to CaixaBank, including the assignment of contracts with customers, and resigned shortly after the authorization to operate as a credit institution.

The cause of the transfer of banking contracts Bankpime CaixaBank is precisely the transmission of the banking business as an economic unit, whose operation is framed and made sense. The particularity of the cause of the transfer of contracts results in that such a transfer of contracts under the transfer agreement included both the banking business loans, rights and, and general, active positions of the bank transferor with respect to its customers, as obligations, responsibilities and, and general, liability positions of the entity towards its customers. Among them is passively support the actions of nullity of contracts concluded by Bankpime with customers and restore the benefits received if such actions were estimated.

[…]

Therefore, Bankpime transmission CaixaBank of its banking business as an economic unit and, as a component of said transmission, Bankpime replacement by CaixaBank in the contractual position than that held in front of each of its customers in the banking business, justifies that they could exercise against CaixaBank shares contractual invalidity, vice error, For contracts concluded by Bankpime with its customers before transmission of the banking business, notwithstanding the CaixaBank shares can exercise against Bankpime to be harmless against such claims, as provided in the agreement between the two banks.

STS Del Pleno nº 652/2017, of 29 November

The clause in CaixaBank bases its arguments does not mean, how you want, the exclusion of certain liabilities in the transmission of the banking business, or exclusion of certain contracts in the transfer of contracts made by Bankpime to Caixabank, excluding contracts, moreover, It was incompatible with the transmission of the banking business as an economic unit.

What actually was intended with that clause was to convey the banking business to CaixaBank Bankpime, CaixaBank lease contracts concluded by Bankpime with its customers in the framework of this business, but CaixaBank assume any liability to the assigned customers. And it was intended to do so without the knowledge of customers 'assigned' or to have acquiesced.

[…]

It is not acceptable that the subrogation of the transferee of the transferor rather be done in a way that allows the transferee to enjoy the benefits that such contracts involve you, but frees you from the responsibilities incurred by the transferor at the conclusion of such contracts, which is what means in practice CaixaBank's claim the protection of that clause, because such a claim implies defrauding the legitimate rights of bank customers, to deprive them of the actions that can be exercised on the basis of contracts with the bank which have become customers under the transfer of the banking business conducted and has assumed the contractual position of the transferor bank.

Thus, against these customers, no provision that effectively transmitted are not the "contingent liabilities" consisting of "contractual claims […] future that may result from the activity of the seller […]».

[…]

This transmission of the banking business from one to another entity was communicated to customers without informing them about the alleged limitations invoked CaixaBank. Las cláusulas del contrato celebrado entre Bankpime y Caixabank en las que este pretende fundar las limitaciones que impedirían a los clientes ejercitar contra él las acciones derivadas de los contratos enmarcados en el negocio bancario transmitido, eran desconocidas para los clientes de Bankpime que pasaron a serlo de Caixabank con base en la transmisión operada, como es el caso de los demandantes.

[…]

Therefore, Bankpime transmission CaixaBank of its banking business as an economic unit and, as a component of said transmission, Bankpime replacement by CaixaBank in the contractual position than that held in front of each of its customers in the banking business, justifies that they could exercise against CaixaBank shares contractual invalidity, vice error, For contracts concluded by Bankpime with its customers before transmission of the banking business, notwithstanding the CaixaBank shares can exercise against Bankpime to be harmless against such claims, as provided in the agreement between the two banks.

Section 11 SAP Barcelona 348/2018, of 20 June

La cuestión ha sido definitivamente resuelta por la Sala Primera del TS reunida en pleno, en su sentencia num. 652/2017, of 29 November, por el que ha desestimado el recurso de casación interpuesto por Caixabank contra la sentencia de la Audiencia Provincial de Valencia, que la hacía responsable por la comercialización por Bankpime de determinados productos financieros complejos: “… La Sala manifiesta que la interpretación de esta última cláusula por Caixabank, en la que pretende exonerarse de responsabilidad, It is fraudulent, pues defrauda los derechos legítimos del cliente bancario, que es un tercero frente al cual dicha cláusula carece de eficacia, pues no es admisible que la subrogación del cesionario en el lugar del cedente se realice en un modo que permita al cesionario disfrutar de las ventajas que tales contratos le suponen, but frees you from the responsibilities incurred by the transferor at the conclusion of such contracts. Also, los clientes debían poder confiar en la apariencia de la transmisión, pues les fue presentada -y así lo fue y corroboraban los signos externos, mismas oficinas, mismos trabajadores- como una transmisión global del negocio bancario”.

Section 16 SAP Barcelona 204/2018, of 10 May

El criterio fijado por el Tribunal Supremo (en STS 652/2017, of 29 November) determina que la transmisión del negocio incluía la sustitución de Caixabank en la posición contractual de Bankpime, también a los efectos de soportar las acciones de nulidad de las órdenes de compra, y la asunción por la adquirente de los pasivos contingentes previos a la transmisión, en la medida que se declaran ineficaces las cláusulas de exención incluidas en el contrato. La responsabilidad se traslada a Caixabank, quedando liberada la cedente (la concursada), por lo que debemos desestimar el recurso de Caixabank y confirmar íntegramente la sentencia combatida.

Section 11 SAP Madrid 107/2018, of 23 February

Particularly, sobre la legitimación pasiva de Caixabank por la adquisición del negocio de Bankpime el Alto Tribunal la tiene reconocida (SSTS Pleno 1ª 652/2018, 29/11; 54/2018, 1.2; 55/2018, 1.2 and 71/2018, 13.2): <Caixabank ha de considerarse fraudulenta, al intentar oponerla frente a terceros ajenos al contrato que celebró con Bankpime, pues defrauda los legítimos derechos del cliente bancario como unidad económica. Especially in a case like this, in which the assignor is completely detached from its banking business and almost uninterruptedly, renunció a la autorización para operar como entidad de crédito y entró en concurso que terminó en liquidación al no aprobarse el convenio>>.

SAP Valencia 16/2018, of 15 January 2018

Se convoca a la presente la reciente Sentencia del TS, Civil Division, Date 29 November 2017 , Pte. Sr. Saraza Jimena, by which se reconoció a la entidad Caixabank legitimada pasivamente para soportar acciones del tipo y naturaleza de la que ocupa al presente procedimiento tanto como sucesora de Bankpime, ahora Ipme 2012, S.A., como comercializadora del producto financiero objeto de autos, Sentencia ya convocada para resolución de estas cuestiones por otras dictadas por ésta Sala, all, la recaída en Rollo 994/2017 of 27 December 2017, Pte. Sr. Seller Rock Togores:

this court, in previous judgments, has recognized the passive standing of the bank that sells to its clients an investment product when they exercise against that an action for annulment and ask for the restitution of what they invested. We did in the judgments 769/2014, of 12 January, 625/2016, of 24 October, and 718/2016, of 1 December, inter. We have done most recently and in a manner widespread in the sentence 477/2017, of 20 July …We have stated in that judgment that when the applicant maintains only the contractual relationship with the investment firm of which is client, in this case a bank, and acquires an investment product such company markets, the business does not really work as an intermediary by the investment firm between buyer client and the issuer of the investment product or the previous owner transmitting, but as a sale between the investment firm and its client, aimed product (in this case, some bonds) that the investment firm is responsible for obtaining directly from the issuer or a previous owner and, to the transmit his client, makes a profit that more closely resembles the margin of the dealer that the commission of the agent.

Under these circumstances, It must be recognized passive standing to the investment firm that sells the investment product, in this case a bank, to support the action of nullity of the contract which the customer received the product and, on conviction, debe restituir al cliente la prestación consistente en el precio que este pagó por la adquisición del productoEsta solución es la más adecuada a la naturaleza de la acción ejercitada y a la intervención que los distintos sujetos tienen en el negocio, habida cuenta de que el elemento determinante de la existencia de error vicio es, in these cases, el déficit de información del cliente provocado porque la empresa de inversión que actúa como comercializadora ha incumplido las obligaciones de información sobre la naturaleza y los riesgos del producto de inversión que le impone la normativa sobre el mercado de valores.

Section 9 SAP Valencia 721/2017, of 27 December

Se trata esta de una cuestión que se ha resuelto en reciente fecha por el Alto Tribunal, puesto de manifiesto por la representación de la Sra. Protection, mediante Sentencia de Pleno 652/2017, of 29 November.

Precisamente, el signo de esa resolución obliga a esta sala a modificar el criterio constante seguido, procediendo la confirmación del pronunciamiento dado por el juzgador de instancia.

Es Caixabank, no la Audiencia Provincial, quien sostiene un argumento que vulnera el art. 1257 Civil Code , al pretender que una cláusula del contrato que celebró con Bankpime afecte a terceros ajenos al contrato y que no han prestado su aquiescencia, y les prive de los derechos que tienen frente a la entidad bancaria de la que son clientes, que en su día fue Bankpime, pero que posteriormente pasó a serlo Caixabank en virtud de la transmisión del negocio bancario de una a otra entidad y de la cesión de la posición contractual que tal transmisión suponía.

A have occurred the, under the legal transaction concluded between CaixaBank and Bankpime, the global assignment of contracts concluded by Bankpime with its customers as an integral element of the transmission of the banking business, as an economic unit, one to another entity, the transfer of the legal position that the transferor had in contracts with customers in the development of the banking business passed to be considered full.

[…]

In view of the above, this end of the transfer agreement concluded between Bankpime and CaixaBank must be interpreted as meaning that that was forced to leave this harmless for claims brought against him customers in their day were Bankpime when such claims were based on facts occurred before transmission of the banking business, so CaixaBank able to claim compensation for the loss that would involve these claims.

This interpretation, respetuosa con la protección del crédito y de los legítimos derechos de la clientela que impone el orden público económico y con la previsión de que los contratos solo producen efectos entre las partes y sus causahabientes, es la única que respeta las exigencias de los arts. 1255 and 1257 Civil Code, invocados como fundamento del motivo del recurso de casación.

[…]

Therefore, Bankpime transmission CaixaBank of its banking business as an economic unit and, as a component of said transmission, Bankpime replacement by CaixaBank in the contractual position than that held in front of each of its customers in the banking business, justifies that they could exercise against CaixaBank shares contractual invalidity, vice error, For contracts concluded by Bankpime with its customers before transmission of the banking business, notwithstanding the CaixaBank shares can exercise against Bankpime to be harmless against such claims, conforme a lo previsto en el contrato celebrado entre ambos bancos.”.

Section 9 SAP Valencia 702/2017, of 20 December

se convoca a la presente la reciente Sentencia del T.S., Civil Division, Date 29 November 2017, Pte. Sr. Saraza Jimena, por la que se reconoció a la entidad Caixabank legitimada pasivamente para soportar acciones del tipo y naturaleza de la que ocupa al presente procedimiento, it, tanto como sucesora de Bankpime, ahora Ipme 2012, S.A., como comercializadora del producto financiero objeto de autos: 2.- The clause in CaixaBank bases its arguments does not mean, how you want, the exclusion of certain liabilities in the transmission of the banking business, or exclusion of certain contracts in the transfer of contracts made by Bankpime to Caixabank, excluding contracts, moreover, It was incompatible with the transmission of the banking business as an economic unit.

What actually was intended with that clause was to convey the banking business to CaixaBank Bankpime, CaixaBank lease contracts concluded by Bankpime with its customers in the framework of this business, but CaixaBank assume any liability to the assigned customers. And it was intended to do so without the knowledge of customers 'assigned' or to have acquiesced.

[…]

A have occurred the, under the legal transaction concluded between CaixaBank and Bankpime, the global assignment of contracts concluded by Bankpime with its customers as an integral element of the transmission of the banking business, as an economic unit, one to another entity, the transfer of the legal position that the transferor had in contracts with customers in the development of the banking business passed to be considered full. No es admisible, which is what means in practice CaixaBank's claim the protection of that clause, because such a claim implies defrauding the legitimate rights of bank customers, to deprive them of the actions that can be exercised on the basis of contracts with the bank which have become customers under the transfer of the banking business conducted and has assumed the contractual position of the transferor bank.

[…]

In view of the above, this end of the transfer agreement concluded between Bankpime and CaixaBank must be interpreted as meaning that that was forced to leave this harmless for claims brought against him customers in their day were Bankpime when such claims were based on facts occurred before transmission of the banking business, so CaixaBank able to claim compensation for the loss that would involve these claims.

This interpretation, respetuosa con la protección del crédito y de los legítimos derechos de la clientela que impone el orden público económico y con la previsión de que los contratos solo producen efectos entre las partes y sus causahabientes, es la única que respeta las exigencias de los arts. 1255 and 1257 Civil Code.

[…]

Ultimately, no cabe duda de la responsabilidad de Caixabank frente a las reclamaciones de clientes de Bankpime.

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