Swap: Compensation for Damage in Barcelona

swap indemnizacion

The Provincial Court of Barcelona condemns Abanca to compensate the damage caused by the breach of the obligation of information placing two chained swaps

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The section 17 de la Audiencia Provincial de Barcelona, in sentence 2 February 2018, nº110 / 2018, has confirmed the judgment of the first instance in which Abanca condemned to pay compensation for damages caused by the lack of information in the subsequent hiring of two swaps.

Antecedentes

In 2005 D. Modesto and Dª. Catalina signed mortgage loan contract that was the subject of an extension and renewal in which he was placed first “swap”, the 14 March 2008.

The 21 April 2009 a new swap with effect was signed up 2019.

The 31 August 2011, D. Modesto and Ms. Catalina made complaint to the Director of the Office of Abanca and informed him that stopped paying the settlement by the swap contract.

Abanca sued D. Modesto and Ms. Catalina in claim settlements amount of swap signed on 21 April 2009, rotated between 1 September 2011 and the 17 September 2015.

The 15 December 2015, D. Modesto and Ms. Catalina opposed the claim and counterclaim made in which the contractual nullity error consent was requested and subsidiarily compensation for damages, the resolution and compensation for the art. 1124 civil code, the Abanca for breach of information obligations, diligence, transparency and fairness, or possibly neglect repayment obligation quantity.

A la counter-claim, Abanca replied requesting the expiry of the nullity action and affirmed the appropriateness and adequacy of the swap contract in accordance with the profile of D Modesto and Ms. Catalina.

Primera Instancia

In a judgment of 7 April 2017, the Court of First Instance and Instruction No. 2 Gava estimated the initial request of the counterclaim filed by D. Modesto and Ms. Catalina and rejected the main demand of Abanca.

Abanca appealed against the decision of first instance, insisting estimating demand and rejected the counterclaim.

Apelación

The first aspect that took into consideration the room was the expiration of the action for annulment of contracts, for what they expounded the doctrine of the Supreme Court on the matter, citing statements 12 January 2015, 376/2015, of 7 July; 489/2015, of 16 September; 102/2016, of 25 February or the 20 December 2016:

Ultimately, no puede privarse de la acción a quien no ha podido ejercitarla por causa que no le es imputable, como es el desconocimiento de los elementos determinantes de la existencia del error en el consentimiento.

Thus, in complex contractual relationships are often as those arising from banking contracts, financial or investment, the consummation of the contract, for the purposes of determining the starting time of the exercise period of the action for annulment of the contract by error or fraud, It can not be fixed before the customer may have become aware of the existence of such error or fraud. The initial date for exercise of the action is, therefore, the suspension of the settlement of benefits or interest accrual, the application of management measures agreed by the hybrid instruments FROB, the, and general, another similar event that allows real understanding of the characteristics and risks of complex product acquired by a consent vitiated by error,,es,According to this reasoning,,es,the dies a quo may not be the date of subscription of the bonds,,es,but the moment that definitively set the value of the lost,,es,the deadline for bringing an action for annulment had not expired at the time of the filing of the complaint,,es,As for the lack of passive legitimation by the fact that structured bonds subscribed have been issued by BNP PARIBAS and not by BANKINTER S.A.,,es.

Based on the thesis indicated, the Provincial Court determined that the start of the exercise period of contractual nullity action should be counted since the client was in a position to know the economic risks of operations, which in this case would be the 31 August 2011, date on which claimed the director of the office of Abanca. Thus, He considered that the counterclaim filed on 15 December 2015, I was outside the limitation period 4 years old.

Notwithstanding the expiry of the action of nullity, Hall studied the subsidiaries requests according to what is stated in the jurisprudence of the Supreme Court reiterated STS 12 January 2012, that regard expressed:

Exercised in demand various actions, one with the other main character and the alternative, in the case of dismissal of the principal, overruled by the Court of Appeal the court ruling that upheld the action brought as principal, the Court of Appeal is bound to enter the examination of alternative actions Actuated, without the plaintiff perform any steps, It estimated as the main action was not lack of interest in legitimizing him for an appeal; dismissed the main action, the jurisdiction of the Court of Appeal extended the review of the subsidiary action for rescission of the contract”.

So things, against the alternative claim for compensation for damages, Hall said the doctrine of the Supreme Court on the matter, reiterated in various judgments:

In the STS 13 September 2017:

[…] There is a strict legal duty to inform the client by the investment services entities.

[…]

the breach of this obligation by the financial institution could result, if, the rescission of the contract by mistake defect in the consent, or an action for damages for breach of contract, to seek compensation for damage caused to the customer by contracting the product as a result of incorrect advice . But it can not lead to the termination of the contract for breach”.

STS 1 June 2017:

a breach of that legislation, mainly in terms of information risks inherent in swap contracts, both as regards the possibility of negative periodic settlements in large amount, like a too high cost of cancellation, you can assume the error in who contracted with this information deficit.

[…]

As we stated in the judgments 769/2014, of 12 January 2015, and 676/2015, of 30 November, It is the investment services company who has the obligation to provide information imposed such legislation, and are not their customers, which are not financial market professionals and investment- who must ascertain the relevant issues on investment, buscar por su cuenta asesoramiento experto y formular las correspondientes preguntas.

[…]

Breach of the duty of customer information on economic risk if interest was lower than the Euribor and on the economic risks associated with the cost of cancellation, It is what promotes an error in the provision of consent”.

STS 27 June 2017:

Although by itself a breach of the duties outlined information does not necessarily lead appreciation vice error in the recruitment of financial product, the legal provision of these duties, which relies on information asymmetry that usually occurs in the recruitment of these financial products to retail customers, affects the appreciation of the error.

These duties are not satisfied with mere generic literalness of the prospectus or contract. Nor with the sole signature of the contract or subscription.

[…]

The fact that the client is a corporation does not necessarily mean its expert character, puesto que la formación necesaria para conocer la naturaleza, characteristics and risks of a complex product and risk as the swap is not the entrepreneur simple but professional stock market or, at least, la del cliente experimentado en este tipo de productos”.

Based on the case law cited, the Provincial Court stated that all circumstances that constituted a breach of the reporting obligations were met of Abanca whenever D. Modesto and Ms. Catalina had no financial training or experience at the time of the signing of the “swaps” and were retailers and non-professional clients under Article 78 bis of the Law on Securities Market.

Hall noted that some retail customers as D. Modesto and Ms. Catalina could not know the operation and risks “swaps”, so a mistaken idea of ​​the conditions regarding interest rates and in the words of the Chamber made "which it was the main connoisseur, which he led them to enter into a contract in which there were only certain loss for them, and in any way he could fulfill the purpose that tried to reach the plaintiff to countersign, hedge against the risk of rising interest rates, because all indicators were downhill. It is not relevant channel it in a likelihood reasonable and random depending on increases or decreases in the indicators taken into account in contracts, but rather in a secure income forecast for credit institutions to the prognoses for them”.

Conclusion

Consequence of the lack of information and dereliction of duty by Abanca, the Provincial Court concluded that concurred requirements to declare the responsibility of art. 1101 civil code, damage configured with payments you made the plaintiff and, the causal link with the breach of the duties of information imposed by the rules of the market. The section 17, He confirmed the judgment of the first instance He condemned to compensate customers for placing swap contracts.

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