The Provincial Court of Las Palmas has ordered Banco Santander to return more than 300,000 euros to a company from Lanzarote, Instaladora Leyce, which contracted a "high risk" financial product without being warned of what it implied. According to the plaintiff, a bank official indicated that what he was contracting was "a kind of insurance" to "protect him from rising interest rates." However, in reality it was a Swap, which the ruling refers to as "random products, of effective risk and that can have an evident speculative purpose."
The company, which belongs to the mayor of Tinajo, Jesús Machín, delivered a total of 295,039 euros to Banco Santander. Now, the Court has annulled the contract signed in February 2008 and has ordered the bank to return that sum, plus the legal interest generated since then. Thus, it revokes the first instance ruling of the Court of First Instance Number 4 of Arrecife, which in November 2014 had ruled in favor of the bank.
This new ruling, which La Voz has now had access to, and which is dated last April 22, considers that the Court did not correctly assess the evidence, as the plaintiff argued in his appeal. Specifically, that ruling stated that Machín was "perfectly aware of the operation of financial swap contracts", that is, Swaps. However, the Fourth Section of the Court concludes that he is a "retail businessman, without significant financial activity", and that he was not properly informed by the bank.
They did the "suitability test" after signing the contract
"From the evidence presented, it is deduced that the plaintiff entity is not aware of financial activity or high-risk products, since its administrator has positions in other entities, but none is of an investment or financial activity", the ruling states, which recalls that European regulations oblige banking entities to inform clients when offering this type of product.
It even explains that "entities that provide investment services must collect from the client the necessary information that allows them to determine if they have the experience and knowledge to understand the risks involved in the specific product or service they propose to contract", preparing for this a "suitability test". In the case of Leyce, that test was carried out, but months after the contract was signed. "The paradox is that (the contract) is signed in February 2008 and the suitability test is from October 2008", the Court emphasizes.
"The contract must be null and void by the European regulations themselves. The plaintiff is not warned that it was not suitable for her and the test is done months after signing the contract", it concludes. Furthermore, it insists that "it is not recorded that the complex nature of the contracts he signed and the obligations he acquired have been explained to him." Regarding the documents provided by the bank in its defense, with an "explanation of how a swap works", the ruling indicates that these sheets "are not signed", so it is not recorded that they were actually shown to the client.
The ruling, which adds to others issued throughout Spain annulling contracts of this type of financial products, recalls that banking entities "rescued from the financial market complex, risky, random and speculative products, which even for their employees in the branches were new, so that they would offer them to retail clients or consumers even with little, scarce or no financial knowledge, in order to cover the risk of the increase in variable reference rates in loans." Precisely to prevent clients from investing significant sums without knowing what it implies, European regulations oblige to give "sufficient information" before "choosing the investment product" and signing a contract.
