Cómo recuperar el dinero invertido en acciones de Bankia

En los últimos años han sido muy frecuentes las reclamaciones judiciales interpuestas frente a las entidades bancarias por diversas razones;  contratación de swaps o derivados financieros de extraordinaria complejidad, de participaciones  preferentes, de obligaciones subordinadas,   o  la inclusión de clausulas suelo en los préstamos hipotecarios.

Los argumentos más comunes en estas reclamaciones han venido siendo el error o vicio del consentimiento -por falta de explicación de los detalles del producto financiero o por su desproporcionada complejidad para el perfil de cliente- ,  y  la vulneración de derechos de los  consumidores.

Recientemente son numerosas las reclamaciones y pleitos civiles interpuestos por compradores  o suscriptores de acciones de Bankia S.A interesando  judicialmente la devolución del  precio pagado por las acciones.

El fundamento principal para dichas reclamaciones es la nulidad del contrato de adquisición de acciones por error o vicio del consentimiento. A groso modo, se puede decir que nuestro Código Civil establece que será nulo el consentimiento prestado, entre otras razones, por error o dolo, siendo que existe dolo cuando una parte es inducida a celebrar un contrato con palabras o maquinaciones insidiosas,  y  sin las cuales  no hubiera contratado.

Para entender el fundamento fáctico de estas reclamaciones hay  que remontarse al año 2011 cuando, incluso antes de la salida a bolsa de Bankia, aparecieron en los medios noticias y mensajes publicitarios que presagiaban estupendos rendimientos para los futuros inversores en dicha entidad.  Se insistía en que Bankia era una entidad de una extraordinaria solvencia y fortaleza económica que iba a ser,  según los propios folletos creados para la campaña de venta, la cuarta entidad bancaria de España.

Pero lo cierto es que, muy poco tiempo después, concretamente en mayo de 2012, Bankia se vio obligada a  reformular sus cuentas sacando a la luz unas notables pérdidas.  Pero es que, además,  en el año 2014 los técnicos del Banco de España designados como peritos en las diligencias penales que sigue el Juzgado Central de Instrucción nº 4 confirmaron   que las cuentas de la entidad del año 2011 no mostraban una imagen fiel de su situación financiera, la cual llegaron a calificar de muy deteriorada.  Este último hecho resulta especialmente relevante porque ofrece incluso la posibilidad de alegar, con las debidas cautelas, la existencia de falsedad en los datos ofrecidos por la entidad bancaria para la oferta pública de suscripción de acciones.

Como consecuencia, podrá reclamar la devolución del precio de las acciones junto con los correspondientes intereses, cualquiera que hubiera comprado acciones de Bankia entre julio de 2011, fecha su oferta pública de suscripción, y el 25 de mayo  de 2012, fecha en la que el nuevo equipo gestor de la entidad reformuló las cuentas de la entidad.

Cabe señalar que la reclamación se podría instar en diversas jurisdicciones y con diversos fundamentos, no obstante, lo más aconsejable es acudir a la vía civil, ante el juzgado de instancia, y solicitando que se declare la nulidad del contrato de adquisición por error o vicio del consentimiento y la devolución del dinero y sus intereses.

El plazo para el ejercicio de esta acción en concreto es de 4 años desde que el suscriptor tuvo conocimiento del error, lo que aconteció con la reformulación de las cuentas el 25 de mayo de 2012, por lo que la acción habrá de ejercitarse antes del 25 de mayo de 2016.

Cabe también la posibilidad, ofrecida fundamentalmente por grandes despachos, de hacer efectiva la reclamación por medio de una demanda colectiva, es decir,  junto con otros muchos perjudicados en una misma demanda, y alegando fundamentalmente que existe vicio de consentimiento por una falsedad en las cuentas, lo que afectaría por igual a todos los compradores demandantes .

Sin embargo, han sido varios los juzgados que han inadmitido las reclamaciones colectivas por entender que no les compete a estos juzgados pronunciarse sobre la falsedad de las cuentas, y  que, al englobar en una sola reclamación inversores  de muy distinta cuantía económica y perfil, el ejercicio conjunto obliga a un tratamiento muy genérico del error o vicio del consentimiento, lo que resulta muy difícilmente compatible con la propia naturaleza de una acción que analiza, precisamente,  el error o vicio en el  consentimiento de cada uno de ellos.

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