El TS reitera la responsabilidad de Caixabank por Bankpime

bankpime caixabank

The individual investor can claim to CaixaBank for products purchased Bankpime, to the being subrogated to its position

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As is known, Bank Small and Medium Enterprises (Bankpime) integrated its banking business in CaixaBank in 2.011. The contract of transfer of assets, They were excluded from the:

<<contingent liabilities such as contractual and contractual claims or future>>.

However, TS noted that the contracts were not relent -for customers should have consented to such operation-, but unitarily it transmitted the banking business. Thus, CaixaBank was acquiring, I wanted to or not, both the benefits and harms of the banking business Bankpime.

To this extent, the only interpretation that could be made of the exclusion clause to avoid prejudicing bank customers is:

1.- Bankpime customers can claim to CaixaBank

2.- CaixaBank has the right of recourse against Bankpime in contracts before integration 2011.

It follows declared Judgment of the Plenum of the TS, n.º 652/2017, of 29 November, it is considered that such exclusion fraudulent and ineffective in the face of customers:

” the interpretation of the clause which postulates Caixabank, which it would consider that transmitted the banking business and contracts in the development of such business, but not the responsibility to contracted customers, It is fraudulent, since it disappoints 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”.

(….)

“the ineffectiveness against customers exemption from the "contingent liabilities" in the transmission of the banking business to CaixaBank Bankpime>>.

We emphasize that the High Court calls strongly that maneuver as “fraudulently”.

this thesis, que era jurisprudence and therefore directly applicable by the courts, for it is having been issued in a judgment of the House, It has been reiterated the 1st Chamber of the Supreme Court, en Sentencia n.º 71/2018, of 13 February, which then analyzed.

Background Bankpime Caixabank

Nazario and Dña. Conception signed with Bankpime S.A. two orders of purchase of financial products:

  • A, Lehman Brothers junior bonds, worth 20,000 €, on April 2.006.
  • Other, Kaupthing Bank values, por valor de 22.000 €, on April 2.009.

Is CaixaBank responsible for financial products marketed by Bankpime?

Given this sequence, D. Nazario and Dña. Concepcion went against CaixaBank to request:

  • The nullity of those acquisitions of financial products,ex arts. 1.261 CC y 6.3 CC o, secondarily, by mistake (Arts. 1256 and 1266 CC).
  • Alternative, the contractual resolution ex art. 1.124 CC.
  • And secondarily to both claims, liability for breach ex art. 1.101 CC and breach of information duties, advice, good faith and good banking practice.

The problem was that prior to STS 29 November 2.017, Courts denied responsibility for CaixaBank on products Bankpime, based on the exclusion clause aforementioned.

And so, the Court of First Instance No. 11 Valencia dismissed the lawsuit in Judgment No. 75/2.015, of 20 March. En la misma línea, 11th Section of the Provincial Court of Valencia, He confirmed this Sentencian.º 64/2016, of 29 February, when D. Nazario and Dña. Conception filed appeals.

The doctrine of the Supreme Court on the succession of CaixaBank's position Bankpyme

He established the STS 652/2017, of 29 November, that:

<<according to Art. 1255 and 1257 CC , the transfer agreement concluded between Bankpime and CaixaBank must be interpreted in the sense that it was forced to leave it untouched for claims brought against him customers in their day were Bankpime when such claims were based on events that occurred before transmission of the banking business, so CaixaBank able to claim compensation for the loss that would involve these claims>>.

Ultimately, CaixaBank holds passive legitimization for the individual investor to act against it. And whenever it:

1.- In this type of purchases and sales of financial instruments, the financial institution does not operate as a mediator, but as a saleswoman. You can not force the customer to claim against the issuer of the securities. De otro modo, it would undermine the rights of defense, to the make the claim unduly burdensome, if not impossible.

2.- CaixaBank bought the banking business as Bankpime economic unit. Therefore, You must respond to the obligations of the same. Otherwise, It should be understood that an assignment of receivables made, what I should have consented to each customer. Else would, again, leaving unprotected the bank customer.

Error on consent

The ability of the error consent to vitiate a business, TS has spoken again and again in the following sense:

<<failure by the investment firm reporting obligations by not professional client, if not prevented in some cases know the nature and risks of the product, and therefore has not suffered mistake in hiring, takes to presume on the client's lack of sufficient knowledge about the product purchased and the associated risks vitiating consent>>.

Namely, It is operating a presumption only law the existence of error when the financial institution fails to fulfill its reporting duties. This presumption seeks to protect the consumer, and to destroy, It is necessary that the show bank have acted with the diligence required by law.

Conclusion

Ultimately, TS estimated resources and demand against Caixabank, annulling contracts for the purchase of financial instruments contracted with Bankpime and ordering the restitution of benefits. My brilliant colleague Javier Gomez Boluda took the legal address of the plaintiffs.

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