sentencias-bbs-abogados

"Created in 1988 BBS Abogados Asociados Asesores Legales y Tributarios specializes in all the fields that make up the law of the company."

Relevant judgments

Outstanding Judicial Judgments in different Areas of Action

In this Section we highlight Sentences obtained by BBS ABOGADOS that, due to their importance and particularities, we consider more interesting, giving more importance to those of Superior Courts. We do not list or highlight the innumerable judgments obtained for more than 15 years, despite our firm being one of the leaders in Spain in estimated judgments in the banking and financial field.

Abusive Clauses | IRPH | Multi-currency Mortgage | Convertible Bonds | Swaps | Preferential and Subordinated Debt | Floor Clause | Oppositions to Foreclosures

Abusive Clauses

• New Sentence, Autosº 71/2019 issued on March 19, 2019, by the Court of First Instance nº 20 of Barcelona, ​​in which, after the declaratory demand presented by Caixabank SA for the non-payment of a personal loan by the client consumer, the Judgment declares the entire contract void because it contains 17.5% abusive and usurious interests, so the client must only return the capital of the loan, without interest of any kind.

JUDGMENT No. 71/2019 OF THE COURT OF FIRST INSTANCE No. 20 OF BARCELONA, DATED MARCH 19, 2019.

IRPH Clauses

• Condemn Caixabank, S.A. to replace the IRPH CAJAS index (which had been fixed) by the Euribor, at the same time that it obliges the financial institution to return to the client all the overpaid by virtue of the IRPH clause plus the legal interest from the collection of each installment . Likewise, the nullity of other clauses is also declared, such as the one relating to late payment interest and early maturity.

JUDGMENT No. 2311/2020 OF JULY 20, ORDINARY PROCEDURE 121/2018-F COURT OF FIRST INSTANCE No. 50 BIS OF BARCELONA.

• Condemn Caixabank S.A. to replace the IRPH CAJAS Index (which had been fixed) and to replace it with the Euribor, while declaring the nullity of the floor clause contained in the same mortgage loan. Consequently, the bank is obliged to return to the consumer all the interest paid in excess by virtue of the IRPH clause and the floor clause from the date of each of the payments. In addition, the nullity of other clauses is also declared, such as expenses, late payment interest and early expiration.

JUDGMENT No. 1638/2020 OF JUNE 2, COURT OF FIRST INSTANCE No. 50 BIS OF BARCELONA.

• Declares the nullity of the third clause bis (reference index IRPH Savings Banks and substitutes IRPH Ceca, Fixed Rate), of clause fourth section six (recovery commission), of clause six bis (early maturity) of an open credit with guarantee mortgage arranged in July 2002. It condemns the banking entity CaixaBank SA to expel said clauses from the contract, replacing the IRPH index – which had become fixed – by Euribor + 1%, and condemning the bank to refund the differences paid from plus, with your interests, as well as the payment of costs.

JUDGMENT OF NOVEMBER 13, 2017, ORDINARY PROCEDURE 109 / 2017-2B, OF THE COURT OF FIRST INSTANCE No. 38 OF BARCELONA.

• Declares the nullity of clause third bis (reference index IRPH Cajas and substitutes IRPH Ceca, Fixed Rate), sixth (late payment interest) and sixth bis (early maturity) of an open credit deed with mortgage guarantee dated April 25 July 2002. Condemns the banking entity CaixaBank SA to eliminate said clauses from the contract, establishing an interest-free loan and condemning the entity to pay the unduly paid amounts of interest by virtue of the clause declared void, with express condemnation in coasts.

Multi-currency Mortgage

• Condemn Caixabank, S.A. to calculate the loan from the beginning as if it had been contracted in euros and referenced to Euribor, and consequently obliges the financial institution to return to the client all the overpaid by virtue of the multi-currency clause. What is relevant about this ruling is that the affected consumer has a highly qualified profile: he is a financial director. We emphasize this fact since the high profile of the consumer is one of the false reasons that the bank usually alleges to oppose a claim.

JUDGMENT No. 2445/2020 OF JULY 28, COURT OF FIRST INSTANCE No. 50 BIS OF BARCELONA, ORDINARY PROCEDURE 6654/2017-G.

• Condemns Banco Santander, S.A. to carry out the recalculation of the mortgage in euros and to return to those affected the amounts paid in excess by virtue of the multi-currency clause. This is a very important judgment because the client has a very high professional profile and had also made currency exchanges, reasons that the bank frequently uses to oppose consumer demands.

JUDGMENT No. 1115/2020 OF JUNE 8, PROVINCIAL HEARING OF BARCELONA, SECTION 15, APPEAL 1798 / 2019-1.

• Confirms the judgment issued on October 20, 2016, by the Court of First Instance No. 3 of Terrassa, and declares the nullity due to lack of transparency of the multi-currency clause signed in 2007, condemning BANKINTER SA, to convert the loan In Euros from the beginning, with retroactive refund.
He considers that it has not been proven that he had financial knowledge and, on the contrary, that the lack of prior information on the part of the Entity has been proven. The client also signed a later Novacion.

JUDGMENT No. 469/2018 OF THE PROVINCIAL HEARING OF BARCELONA, SECTION 16, DATED FEBRUARY 5, 2017; ROLL No. 23/17.

• It revokes the Sentence issued by the Court of First Instance No. 10 of Madrid and ends up declaring the nullity due to lack of transparency of the multi-currency clause signed in 2008, condemning BANCO POPULAR SA to convert the loan into Euros from the beginning, with retroactive refund.
We must highlight the Client’s profile: an employee with a prominent position in the JAPAN AIRLINES company, and had signed various financial products of enormous complexity, but it is considered that it has not been proven that he had financial knowledge and on the contrary, the lack has been proven of prior information by the Entity.

Convertible Bonds

• Declares the contractual responsibility of BANCO BILBAO VIZCAYA ARGENTARIA, SA, for serious breach of its legal and contractual duties of loyalty, diligence, transparency and information in the commercialization of an Investment Fund, and orders to refund the amount of 19,745 to the client, € 93.- for damages, plus legal interest from the subscription of the product. Likewise, the bank is ordered to pay the costs.

JUDGMENT No. 66 OF MARCH 16, 2020, ORDINARY PROCEDURE No. 498/2019 -2ª, OF THE COURT OF FIRST INSTANCE No. 38 OF BARCELONA.

• Confirms the judgment handed down on February 23, 2016 by the Court of First Instance No. 1 of Mataró, and declares the nullity due to error in the consent to the acquisition contract of “Valores Santander”, condemning the banking entity Banco Santander SA to return the invested amount of 25,000 euros, with its legal interests from the date of contracting, and to pay the costs of the procedure.

JUDGMENT No. 588 OF SECTION 4 OF THE PROVINCIAL HEARING OF BARCELONA, OF SEPTEMBER 21, 2017; ROLL No. 713/2016-P.

• Declares the nullity by mistake in the consent to the acquisition contract of “Valores Santander”, condemning the bank Banco Santander to return to the clients the capital invested in the amount of € 70,000, with the legal interest from the date of purchase, also ordering him to pay the costs of the procedure.

JUDGMENT No. 222 OF OCTOBER 19, 2017, ORDINARY PROCEDURE 943/2016-C, OF THE COURT OF FIRST INSTANCE No. 12 OF BARCELONA.

• Declares the nullity by mistake in the consent of the acquisition contract of “Bonds Popular issue 2009” and of the compulsory exchange operation in shares, condemning the bank “Banco Popular” to pay the invested amount of € 47,000, with its legal interests from the purchase, as well as the payment of procedural costs.

Swaps

• First known raid of a bank in Spain with full refund of amounts paid by the client, late payment interest for overdrafts and termination of hedging contracts. The nullity of 2 Swaps subscribed by a SME in the timber industry and return of all settlements paid by the client is accepted.

JUDGMENT OF SEPTEMBER 25, 2014, ORDINARY PROCEDURE 729/2013-SECTION 1, OF THE COURT OF FIRST INSTANCE No. 5 HOSPITALET DE LLOBREGAT.

ORDER OF THE COMMERCIAL COURT No. 4 OF BARCELONA, AUTOS 63/2010, DATED 01-28-2010.

• 1st Judgment of Swaps in Barcelona and 2nd in Catalonia, declaring the nullity of a Swap with refund of the amounts paid. 1st Sentence issued by a Court of Barcelona.

JUDGMENT OF THE COURT OF FIRST INSTANCE NO. 24 FROM BARCELONA, AUTOS 906/09 AGAINST BANCO POPUAR, DATED 11-09-2010.

• 1st Sentence issued by a Mercantile Court of Barcelona, ​​and 1st Sentence condemning La Caixa in Catalonia.

JUDGMENT OF THE COMMERCIAL COURT No. 7 OF BARCELONA, AUTOS 363/2010 AGAINST LA CAIXA, DATED 02-24-11.

• 1st Sentence condemning la Caixa in Catalonia and 2nd in Spain, declaring the nullity of an IRS and refund of liquidations.

JUDGMENT OF THE COURT OF FIRST INSTANCE No. 55 OF BARCELONA, AUTOS 871/2010 AGAINST LA CAIXA, DATED 03-22-2011.

• 2nd Judgment condemning Caixa Galicia in Catalonia, declaring the nullity of an IRS and repayment of liquidations.

JUDGMENT OF THE COURT OF FIRST INSTANCE NUMBER 55 OF BARCELONA, AUTOS 37/2011 AGAINST CAIXA GALICIA, DATED 07-29-11.

• 1st Judgment in Catalonia condemning Caixa Penedés in Barcelona, ​​declaring a SWAP null and void and repayment of payments paid.

JUDGMENT OF THE COURT OF FIRST INSTANCE No. 31 OF BARCELONA, AUTOS 1099/2010 AGAINST CAIXA PENEDES, DATED 09-20-11

Preferential and Subordinated Debt

• Declares the nullity of the purchase orders of subordinated bonds series I / 2009 and I / 2010 and of the repurchase agreements subordinated bonds I / 2013 and II / 2013, condemning BANCO SABADELL, S.A. to the return of the subscription amounts with your legal interests. The bank is also ordered to pay the costs.

JUDGMENT No. 181 OF JUNE 9, 2021, ORDINARY PROCEDURE No. 285 / 2019-5M, OF THE COURT OF FIRST INSTANCE No. 4 OF BARCELONA.

• Declares the nullity by mistake in the consent of several purchase orders of subordinated obligations subscribed between the years 2007 to 2010 by an ECCLESIASTICAL PARISH. The Judgment considers that the Parish does not have a business or financial activity since it only officiates the sacraments and performs other religious duties. Condemns Bankia SA. To the return of the capital invested for more than € 30,000, with its legal interests, and obliges you to pay the costs of the procedure.

JUDGMENT OF DECEMBER 9, 2014, ORDINARY PROCEDURE 1299/2013-E, OF THE COURT OF FIRST INSTANCE No. 5 MATARÓ.

• Declares the nullity of two contracts for the purchase of subordinated obligations due to an error in the consent in their subscription, condemning Bankia S.A to return the invested amount of € 681,000, with its legal interests from the subscription. It also imposes the costs of the procedure on the Bank.

JUDGMENT OF SEPTEMBER 25, 2014, ORDINARY PROCEDURE 729/2013-SECTION 1, OF THE COURT OF FIRST INSTANCE No. 5 HOSPITALET DE LLOBREGAT.

• Declares the nullity by mistake in the consent of two purchase orders for subordinated obligations contracted in 2003 and 2008, marketed by the deputy director of an Office of Catalunya Caixa SA to their parents, and condemning this bank to refund the amounts invested for an amount of € 56,000, with their legal interests from the subscription, imposing the payment of the costs to the bank.

Floor Clause

• Declares the nullity by mistake in the consent of the land clause contained in a mortgage loan subrogation deed, that is, in which the clients subrogated to the mortgage loan that was arranged by the real estate developer without knowing the clauses of the same They derive. It is condemned to recalculation of the loan without said clause and the return of all that collected by virtue of it and the imposition of costs to the bank.

Oppositions to Foreclosures

• In the framework of a mortgage foreclosure presented by BANCO POPULAR ESPAÑOL, S.A. against a consumer for non-payment of the loan installments, this Order declares the nullity of clause 7.1.1. of the deed of loan with mortgage guarantee signed between the parties on July 2, 2007, referring to the early resolution by the credit institution and consequently it is appropriate not to consider said null clause, giving rise in accordance with the reasoning of the Denial of the dispatch of the requested execution, without prejudice to the claim actions that assist the executing party regarding the loan installments that have been unpaid, but not being able to claim the entire loan.

ORDER No. 576/2017 OF THE COURT OF FIRST INSTANCE 6 OF GRANOLLERS, DATED OCTOBER 23, 2017; ORDINARY PROCEDURE No. 654/2017 -2.