Contentieux bancaire et financier - DANA Avocats

Banking and financial litigation


The litigation concerns :

  • The details
  • Civil real estate companies
  • Commercial companies

The firm offers specialised litigation services in all areas of banking and finance law. It defends and litigates before all national courts.

The liability of banking and financial institutions, insurers and intermediaries may be engaged in the event of loans in foreign currencies, deficient financial arrangements, unsuitable structured loans, bad investments and investments, bad advice, lack of clear and understandable information.

Home loans ultimately backed by a life insurance contract, foreign currency loans, structured loans backed by interest rate swaps, bridging loans

Bullet or structured loans can be particularly dangerous for the borrower.

The banker may be held liable in the event of a lack of advice, warning or information which must be reinforced in the event of complex financial arrangements, the risks of financial loss must be clearly indicated before concluding the contract.

Marketing of unsuitable or speculative complex financial products by the investment services provider to uninformed investors

  • The investment service provider, in the context of private management, can be condemned if it markets insurance products that are unsuitable for the profile of its clients or if these products are complex and dangerous, if the instructions and procedures for classifying clients are not respected and the investments turn out to be defective.

Apparent anomalies on bank accounts in the event of abnormal movements of funds following fraud to the president, scams in particular by unlicensed Forex brokers

  • Fraud on the president or false transfer orders constitutes a criminal offence. A criminal complaint must therefore naturally be filed against the crooks.

    In addition to criminal proceedings, civil proceedings are possible against the bank that carried out the fraudulent transaction.

  • Many websites also offer individuals the opportunity to become "traders" in the Forex or binary stock markets. The offers made by these sites, which are on the AMF's blacklist, are scams carried out by fraudsters hiding behind front companies domiciled abroad.
  • The banker may be held liable for any apparent anomalies.
  • The apparent anomaly is one that should not escape the banker who is sufficiently prudent and diligent in the face of abnormal, clearly disputed facts. These remedies exist in the event of large international transfers of money to a company used by fraudsters, often domiciled in a risky area.

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Investments in Forex or in the binary options trading market: liability of the licensed online broker in the event of a breach

Licensed online brokers offering individuals to invest in the Forex or binary stock market must comply with the rules set out in the French Monetary and Financial Code and the AMF General Regulations. If they fail to do so, they may be held liable.

Responsibilities of the investment services provider, of the financial investment adviser in case of breach of a rule of good conduct of the Monetary and Financial Code and the AMF General Regulation, unclear and misleading information

Asset and portfolio management companies and merchant banks that offer investments to their clients must comply with rules set out in the Monetary and Financial Code and the AMF General Regulation.

In the event of a breach, their civil and administrative liability may be incurred. A criminal complaint may also be considered in the case of criminal offences.

Unsuitable unit-linked life insurance contracts

Liability of the insurer or insurance intermediary in case of
unsuitable financial investments.

Bankers often offer bullet loans which must be guaranteed by the pledge of a unit-linked life insurance contract.

The objective is that the return on the life insurance contract allows the repayment of the loan in fine, at the final maturity.

When the returns on the investment prove insufficient to settle the loan in fine, the borrower can seize the court in order to engage the responsibility of the bank which should have informed and warned him about this risk.

The prescription is 5 years from the unwinding of the operation if the proposed financial package proves to be deficient.

The starting point for the prescription of an action for the liability of the banker runs from the realization of the damage or from the date on which it is revealed to the borrower if the latter establishes that he had not had any. knowledge previously, or in practice on the date of the final maturity of the loan in fine with the value in euros of the supports of the life insurance contract.

Under certain conditions, the insured may waive the life insurance contract in the event that the insurer violates the legal provisions. In some cases, stock market losses can be fully reversed.

Sureties disproportionate to the income or assets of the uninformed surety

Bonds may be cancelled if the guarantor did not have sufficient income at the time of signing the bond contract or when it is executed.

Other remedies exist, in particular for the company manager's guarantee.

Safeguard, reorganization or judicial liquidation

  • In the event of difficulty or cessation of payments, the company must make a declaration to the registry of the commercial court in order to place itself under a legal regime that protects its interests and those of its creditors.
  • The declaration of cessation of payments of a company requires the creditors to declare their claims within the required time limits, under penalty of foreclosure.
  • Proceedings will have to be conducted before the juge-commissaire for the purpose of admitting or rejecting the claims. The creditors can be appointed as the debtor's management controller. In the event of liquidation, creditors may take action for liability for insufficient assets, action to extend the procedure in the event of confusion of assets and misuse of corporate assets, if the conditions are met.

European law, private international law

  • European law requires the lawyer to verify the jurisdiction of the courts and the applicable law in international disputes.
  • Some French laws may conflict with European law which takes precedence over them.
  • The effects and enforceability of judgments rendered by a court of a Member State of the European Union must be verified by the national judge.
  • The case law of the Court of Justice of the European Union now has considerable scope.

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