Kort geding van Rechtbank Zwolle, September 11, 2008
Spreker: | gepubliceerd |
Datum uitspraak: | 2008/09/11 |
Uitgevende instantie:: | Rechtbank Zwolle |
vonnis
RECHTBANK ZWOLLE-LELYSTAD
Sector civiel recht
zaaknummer / rolnummer: 148174 / KG ZA 08-384
Vonnis in kort geding van 11 september 2008
in de zaak van
[eiser],
wonende te [plaats],
eiser,
advocaat mr. R.K.E. Buysrogge,
tegen
de naamloze vennootschap
DEXIA BANK NEDERLAND N.V.,
gevestigd te Amsterdam,
gedaagde,
advocaat mr. J.M.K.P. Cornegoor.
Partijen zullen hierna [eiser] en Dexia genoemd worden.
-
De procedure
1.1. Het verloop van de procedure blijkt uit:
- de dagvaarding van 19 augustus 2008 met producties
- de door mr. Cornegoor bij brief van 27 augustus 2008 overgelegde producties
- de mondelinge behandeling ter openbare terechtzitting van 28 augustus 2008
- de pleitnota van Dexia.
1.2. Ten slotte is vonnis bepaald.
-
De feiten
2.1. [eiser] heeft in de jaren 1997 en 1998 met de (rechtsvoorgangster van) Dexia negen effectenleaseovereenkomsten (hierna: de leaseovereenkomsten) gesloten. Hij heeft in totaal EUR 110.134,- aan Dexia betaald maar ook dividend ontvangen.
2.2. De echtgenote van [eiser] (hierna: de echtgenote) heeft bij brief van 21 december 2005 aan Dexia bericht de leaseovereenkomsten te vernietigen op grond van artikel 1:88 lid 1 sub d en 1:89 BW.
2.3. Bij [eiser] is door middel van een MRI-scan een afwijking in de hersenen vastgesteld. De behandelend neurochirurg heeft de waarschijnlijkheidsdiagnose epidermoidcyste gesteld. Hij acht een operatie geïndiceerd.
2.4. [eiser] heeft Dexia doen dagvaarden in een bodemprocedure voor Rechtbank Amsterdam, sector kanton. In deze procedure beroept [eiser] zich primair op vernietiging van de leaseovereenkomsten op grond van artikel 1:88 lid 1 sub 4 en 1:89 BW en vordert hij onder meer (terug)betaling door Dexia van het door hem betaalde bedrag van EUR 110.408,42. Subsidiair vordert [eiser] terugbetaling van voormeld bedrag wegens onrechtmatig handelen van Dexia.
2.5. [eiser] is bestuurder/enig aandeelhouder van een pensioenvennootschap.
-
Het geschil
3.1. [eiser] vordert dat Dexia zal worden veroordeeld tot betaling bij wijze van voorschot aan [eiser] van een bedrag van EUR 100.000,- of een door de voorzieningenrechter te bepalen bedrag, met veroordeling van Dexia in de kosten van het geding.
3.2. [eiser] baseert zijn vordering op de volgende stellingen. Gelet op vaste rechtspraak van Rechtbank Amsterdam in de zogenoemde Dexia-zaken is het vrijwel zeker dat die rechtbank in de bodemprocedure op grond van art. 1:88 en 89 BW de vordering van [eiser] tot betaling van een bedrag van EUR 110.134,- althans EUR 66.000,-, zal toewijzen. Wegens de achterstanden bij de Rechtbank Amsterdam zal die uitspraak...
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