Santander Securities: New nullity in the High Court of Valencia

santander values

 

The Court of Valencia reconfirms the invalidity of a subscription of complex products Banco Santander among which were the famous "Valores Santander".

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Between 2007 and 2008, the following products were "placed" on a couple:

  • 200.000 EUR Santander Global Structured Property.
  • 600.000 EUR Santander Securities.
  • 100.000 euros in structured Autocancelable.
  • 200.000 euros in Structured Trident.

In view of the losses suffered, sued the bank exercising the action of nullity or cancellation of contracts have been vitiated by errors consent as a result of the lack of information by the bank.

In the alternative, the liability action was brought for compensation for the damages caused.

The Court of First Instance No. 11 Valencia estimated demand in sentence 30 March 2016 and declared null the contracts for the acquisition of Santander Securities and structured products object of the process. Condemned Banco Santander to return the amounts invested less the income received, the legal interests of both the amounts subscribed as of remuneration received, reimbursing to the bank the shares received with the imposition of costs to the financial institution.

So things, Banco Santander filed recurso de apelación ante la Audiencia Provincial.

He gave the following reasons:

  1. Extra petita incongruity of the judgment of the Court First Instance;
  2. Juzgadora error in rejecting the expiration of the action;
  3. Error test assessment regarding the profile of the plaintiffs and their understanding of the products;
  4. Error assessment test in judgment denying any probative value of the witness statements;
  5. Error assessment of evidence regarding the hiring of every product and restructurings;
  6. Error of judgment by not appreciate confirmation of contracts by the acts of the plaintiffs
  7. precaution, dismissal of the subsidiary required action damages, also, It is prescribed; interested reasons why the revocation of the sentence by another demand to dismiss.

The Court rejects the incongruity because the actors founded their structural error in the failure by the Banco Santander of the information duty and therefore understood that the contracted products lacked risk, when in fact there was a high risk both income and capital loss.

expiration is also discarded. Although the actors canceled part of the products in 2009, assuming losses and demand it is presented in 2014, because in that period it does not attend an event that would make the full and conscious connoisseurs plaintiffs mistake I suffered.

As to customer profile, la Audiencia trae a colación la Jurisprudencia del Tribunal Supremo (SSTS 12/1/2015, 22/10/2015, 20/11/2015 and 4/2/2016) indicated in that no basta con los conocimientos usuales del mundo de la empresa, even having business studies or economic, because in this type of financial products, They are necessary expertise so that it can be ruled out error.

There advice because the products were recommended by the bank employees (STJUE 30/5/2013 followed by STS 21/1/2014) and unsolicited by the applicants, They lacking experience on this type of asset, given his professional activity carnage.

And clearly points Section:

"Products to 2007 they had hired the actors manifestly reveals that they did not have any similar to the structured or convertible securities, as shares and investment fund although risk products, in return, They are not complex and its operation is meridano knowledge, end which does not happen with which are, both, complex and risk (as the defendants, and expressly declared by the Supreme Court in Case 3/2/2016 Structured regarding trident and this section in sentence 15/3/2016 (R 1089/2015) and with respect to the convertible securities of the entity sued in the Supreme Court ruling 17/6/2016 and by this section in sentence 27/10/2016 (R.1492/2016) regarding structured trident and values ​​statement regarding Santander) and it is in this class of products where the legislature requires and imposes provide such rigorous and comprehensive informative work for the customer is able to decide with full knowledge of the facts. "

In the appropriateness and suitability tests effected for the final product, the actor qualifies as professional financial intermediation and business management, which he did not show the client.

According to the testifical of bank employees, Section indicates that these they have a direct dependence on the defendant due to their employment relationship with the Bank and were responsible for compliance with the legal duty to inform: Other tests, especially the documentary does not support his claims.

And it refers to its judgment of Santander Securities 27 October 2016, to refer to "Statements of science" they are empty of real content to be contradicted by the facts.

As to the specific reporting requirements, must be provided prior to the contract by legal provision (art.79 to LMV y art. 5 RD 629/93 and the Supreme Court has consistently held -3/2/2016, 25/2/2016-). The literal content of the contract is not enough to undermine the previous information.

For the sake the contractual content itself does not see clearly, diaphanous and perfectly alerted to the subscriber the risks of total capital loss.

Structured restructuring Tridente Autocancelable and was advised by bank employees and did not realize the risks of the product.

Nor confirmation seen for the healing of vice of consent it requires the sufferer, known the cause of nullity and having this ceased, perform an act that necessarily implies the willingness to renounce.

The partial cancellation of the Global Real Estate Structured was foreseen in the contract, and it did not resolve the error consent at the time of recruitment. And in the restructuring of two of structured products it is also producing "orphan" of the required information.

And it is the doctrine of the Supreme Court (SSTS 3/2/2016 and 6/10/2016) that or the perception of yields , or payment of negative settlements, or early termination of the contract or successive chain of contracts, when you start missing information necessary involve the remedy of defects of consent in terms of section 1311 Civil Code.

Ultimately, Banco Santander's appeal is dismissed, and the judgment that declares the nullity of the Santander Securities contract and the rest of its pronouncements is confirmed, with assessment of costs to the Bank.

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