About the expiration period to cancel a Swap

abogado swap

The Supreme Court reiterates that the expiration period begins only when the swap has exhausted all its effects

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Since about the year 2007 onwards, The vast majority of financial institutions imposed the contracting of swaps as a necessary condition to grant the financing that clients needed. In most cases, it has been necessary to go to court to find a solution.
In this post we comment on the STS of 14 October 2020, in which the Supreme Court reiterates that the term to exercise the action for the cancellation of the swap does not begin until all the effects of the contract are extinguished.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

BERNAT RUBI JOIER, S.L., and BBVA, S.A., signed a Stockpyme II financial swap contract, (“Swap”), the 5 May 2008. The contract expired on 5 June 2015, but 15 September 2014, BERNAT RUBI JOIER, S.L., filed a lawsuit requesting that the Nullity of the contract due to a defect in consent.

Primera Instancia

The Court of First Instance No. 8 Barcelona gave judgment on 26 January 2016, fully estimating the claim filed by BERNAT RUBI JOIER, S.L.

He declared void swap contract and condemned BBVA, S.A., a give back to the plaintiff, 50.256,96 €, plus the legal interest of the money from the judicial interpellation and the legal interest increased by two points from the date of the sentence handed down to the date of payment, as well as to restore the amounts paid under the contract after the filing of the claim.

Provincial Court

BBVA, S.A., interpuso recurso de apelación.

The 17th Section of the Provincial Court of Barcelona issued a ruling on 20 July 2017, estimating the resource. Revoke the sentence handed down in the first instance.

He considered that the action for annulment filed by BERNAT RUBI JOIER, S.L., was expired at the time of filing the claim. For the Board, the calculation of the term of art. 1301 CCivil began to count from the first negative settlements of the "Swap". Also, considered that BERNAT RUBI JOIER, S.L., in July 2010, I already knew the cost of cancellation. It acquitted BBVA, S.A.

Supreme Court

BERNAT RUBI JOIER, S.L., appealed.

He alleged infringement of art. 1301 Civil law and jurisprudential doctrine, specifically, la STS 769/2014, of 12 January 2015, inter.

The Chamber estimated the reason. Brought up, to resolve this feature, la STS 89/2018, of 19 February, in which it was stated that "At exercise of the action for annulment by mistake, the Consummation of the “Swaps” contract must be understood to have occurred at the time (…) of the termination of the contract.

(…)

In the contratos de swaps ocobertura de hipoteca there is no consummation of the contract until the exhaustion or termination of the contractual relationship occurs, (…) when the performance of benefits by both parties and the effective production of the economic consequences of the contract.

(…) in these contracts there are no fixed benefits, but variable settlements in favor of one or the other contractor at all times depending on the evolution of interest rates. "

After analyzing the jurisprudential doctrine, concluded that since the lawsuit was filed before the end of the contract in 2015, the action was unexpired, estimating the appeal, revoking the sentence handed down by the Provincial Court.

Conclusion

The expiration period of the annulment action in a financial swap contract has its own dies a quo when the exhaustion or termination of the contractual relationship occurs, cuando se agotan las consecuencias económicas del contrato. No se inicia cuando el cliente sufre las primeras liquidaciones negativas ni cuando el cliente es consciente del producto que le hancolocado”.

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