Swap the BBVA declared void in Zamora



Zamora Provincial Court has confirmed the invalidity of a contract "fee Segura" (Swap) BBVA in sentence 17 February 2015.

D. Octavio signing a contract called "Fee Segura" with BBVA in September 2007. He had hired a mortgage with his wife in the year 2005 amounting to 240.000 euros. The bank offers phone such contract, which is actually a swap or Swap, and tells them they cover in case of rising interest and that would cost them nothing. However, no warned that if rate cuts, would have to pay the negative assessments. There was no simulation of scenarios in case of rising or falling interest rates and warned of the risk that they would take.
So after protesting at the bank and the impossibility of reaching agreement, present action before the Court of First Instance.
For applicants, the contract is ambiguous and vague and does not set the method for calculating the cost of early termination. Have the status of retail and lack of financial knowledge.
Ultimately, the lack of pre-contractual and contractual information caused an error in the consent.

The bank in turn says the product was ordered by the customer, that there is a complex product or risk, which was explained successfully by its employees and the cancellation is not requested.

The Court of First Instance estimated demand and declare the nullity of the contract "Fee Segura" (swap) with reciprocal recovery of benefits.

The bank, resorts to the Provincial Court, claiming that:
1.-The bank does not have the burden of proof have informed correctly.
2.- The Securities Market Act does not apply.
3.- The mistake would be inexcusable, negligence of the plaintiff.

For Hearing, is a membership contract with general conditions and a product complex. Banks, designing the product and offer their customers, are obliged to make additional efforts to inform thereon. You should explain to the client that if rates go down, He will face negative settlements. And, must be The manner of calculating the cost of cancellation.
The bank did not conduct any test.
It brings up the Judgment of the Supreme Court 20 January 2014: The absence of the test to presume the error in the consent.
Although at the time the firm had not entered into force amending the Securities Market Act that required to perform the corresponding test, the bank he was required to be informed about the knowledge and customer experience, his financial situation and investment objectives to recommend the product.
Also, must apply the rules of the market that is independent contracts and the Supreme Court's policy is to apply that law to swaps.
There advice financial. Is considered not sufficiently proven to be informed about the product and its risks.
And signing a waiver clause, does not eliminate the obligation of the bank to justify the fulfillment of their reporting obligations.

Ultimately, the appeal is dismissed and bank nullity of the contract or swap swap confirms called "Fee Segura" with assessment of costs to the bank.

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