Banking Board of Ecuador

RESOLUTION No. JB-2015-3398

THE BANKING BOARD

CONSIDERING:

THAT the second paragraph of the Third Transitory Provision of the Organic Monetary and Financial Code determines that the Banking Board will continue to act until it resolves all claims, appeals, and other administrative procedures it was handling on the date of entry into force of that Code, within a period of one hundred and eighty days, extendable at the discretion of the Monetary and Financial Policy and Regulation Board;

THAT through Resolution No. 054-2015-F of March 5, 2015, published in the Official Register No. 467 of March 27, 2015, the aforementioned Board extended by an additional one hundred and eighty days the period for the Banking Board to continue acting and resolve all claims, appeals, and other administrative procedures within its competence;

THAT through a communication entered in the Regional Intendancy of Guayaquil on November 7, 2013, Ms. Nely Carmita Zambrano Cedeño, filed an administrative claim, in which she states: "(...) before you ... I denounce that from October 25, 26, 27, 28, 29, and 30, 2013, I have been the object of the systematic subtraction of the savings from my account #0550049651 which I maintain at the BANCO NACIONAL DE FOMENTO, El Empalme branch, through systematic withdrawals at different ATMs in the country, in which they have used, as I can suspect, a CLONE of my card, which was already annulled on the same day I detected the subtraction of my money, since I never lost it nor did I hand it over to third parties." (sic); therefore, she requests that this Superintendence order the entity to return the sum of US$1,990.45;

THAT having accepted the aforementioned claim for processing, the User Attention and Education Directorate of the Regional Intendancy of Guayaquil, through letter No. DAYEU-ISFP-REQ-2013-1545 of November 22, 2013, forwarded the claim to the bank, so that it may present the pertinent explanations and documentary defenses;

THAT with letter No. 028-2014 entered in the Regional Intendancy of Guayaquil on February 11, 2014, the Banco Nacional de Fomento sent the requested information regarding the client's claim;

THAT the Regional Intendancy of Guayaquil, according to the content of the claim and the review of the information sent by the entity, with letter No. IRG-DAYEU-V-R-2014-419 of May 14, 2014, resolved as follows:

"(...)

ORDER (...) BANCO NACIONAL DE FOMENTO to proceed to restore to Ms. NELY CARMITA ZAMBRANO CEDEÑO, the sum of US$ 1,990.45 (...), debited from the savings account No. 0550049651 on the days 25, 26, 27, 28, 29, 30, and 31 of the month of October 2013,..." (sic);

THAT the banking entity, through a letter received in the Regional Intendancy of Guayaquil on May 30, 2014, filed an appeal for reconsideration against letter No. IRG-DAYEU-V-R-2014-419 of May 14, 2014, which was rejected by said Intendancy with letter No. IRG-DAYEU-V-R-2014-776 of June 14, 2014, since it determined that the appellant filed the aforementioned appeal out of time;

THAT through writings entered in the Superintendence of Banks and Insurance on July 29 and August 26, 2014, respectively, MGT. Angela Mercedes Avilés Gómez,

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General Manager of the Banco Nacional de Fomento, Guayaquil Branch, with the professional sponsorship of lawyer Nicolás Rodríguez Campos, filed a review appeal before the Banking Board against letter No. IRG-DAYEU-V-R-2014-776 of June 14, 2014, and complemented the documentation related to it, arguing in principal the following:

"Once the text containing the resolution I challenge is reviewed, it emerges that in its expository, considerative, and dispositive parts, there are no conclusions that allow us to verify and confirm the administrative act contained in letter No. IRG DAYEU-V-R-2014-776... of July 14 (sic) of 2014.; rather, as a comment, it refers to the fact that the Bank (...) has not provided documentary evidence or new information on the merits of the administrative claim matter that would change the circumstances under which letter No. IRG-DAYEU-V-R-2014-419 (...), namely the lack of defense proof on the part of the BNF, without taking into consideration that the Public Financial Institution (sic) I represent has responded to the requests of the Control entity, attaching the respective documentation that was requested.

(...) That the abundant proof provided by the BNF was never considered, neither in resolution IRG-DAYEU-V-R-2014-419, (...). For this reason, the abundant proof of the BNF has always been and constitutes new elements that on this occasion must be taken into account, in order to correct the procedural actions issued by the Regional Intendant of Guayaquil. (sic).

(...) what has really been caused by the issuance of these letters is the nullity of the actions taken by the Regional Intendant (...) resulting in the failure to comply with due process guarantees, thereby creating legal insecurity for society and especially against my represented party..., so that ultimately the resolution contained in letter No. IRG-DAYEU-V-R-2014-419 of July 19, 2014, (sic) is null."

"(...) It is evident the lack of the constitutional principle of motivation that afflicts Letter No. IRG-DAYEU-V-R-2014-776, of June 14, 2014, illegitimately affecting the Banco Nacional de Fomento." "(...) which makes it null for contravening the constitutional mandate provided in literal l) of numeral 7 of article 76 of the Constitution...";

THAT with letter No. JB-2014-2076 of August 4, 2014, the Secretary of the Banking Board accepted the review appeal filed, and with letter No. JB-2014-2077 of the same date, sent a photocopy of the acceptance letter and the writing through which the bank filed the review appeal to Ms. Nely Carmita Zambrano Cedeño;

THAT the appellant, with a writing received in this Superintendence on August 28, 2014, requested that an email dated August 21, 2014, sent by Ms. Veloz Zuñiga Patricia, attaching credit notes, be added as evidence in her favor, within the review appeal. Regarding this, it is noted that said email with the referenced information is not attached to the writing sent by her;

THAT the Regional Intendancy of Guayaquil, through letter No. IRG-DAYEU-V-R-2014-419 of May 14, 2014, respecting for the parties, the guarantees of due

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process constitutionally enshrined and based on the motivation contained therein, resolved the claim presented by Ms. Nely Carmita Zambrano Cedeño, ordering the Banco Nacional de Fomento to proceed to restore the sum of US$ 1,990.45 and send to this Office within eight days, counted from the date of its receipt, the documentation that accredits the compliance with said resolution. Additionally, it notified the claimant and the bank with the full content thereof, "(...) in order that they may exercise the administrative appeals established in the current legal order." (sic);

THAT article 137 of the General Law of Financial System Institutions, in concordance with what is provided in article 2, section I "On Reconsideration", chapter II "Norms for the application of Reconsideration and Review Appeals in topics related among others to the Financial System", regarding administrative acts of this Superintendence, title XVI "On sanctions and appeals in the administrative sphere", book I of the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, provides that from the administrative acts adopted by the Superintendent or his delegates, the administered parties may file an appeal for reconsideration before the same officials who issued the respective administrative act, within a term of eight days counted from the date of notification of the impugned act by the competent authority;

THAT as demanded by the aforementioned legal and regulatory norms, the Regional Intendancy of Guayaquil through letter No. IRG-IRG-DAYEU-V-R-2014-776 of June 14, 2014, rejected the appeal for reconsideration filed by the appellant against letter No. IRG-DAYEU-V-R-2014-419 of May 14, 2014, after verifying that the filing thereof was made outside the legal term established for this purpose. In the considerative and dispositive part of the cited letter it states:

"(...)

Considering the term of eight days to file the appeal for reconsideration established both in article 137 of the Organic Law of Financial System Institutions, as well as in article 2, of section I "On reconsideration", chapter II "Norms for the application of reconsideration and review appeals (...)", Title XVI "On sanctions and appeals in the administrative sphere, book I, of the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, as well as the date of notification of the letter containing the appealed administrative act, that is, May 19, 2014, it is determined that you could have filed said appeal until May 29, 2013; however, it was presented on the 30th of the aforementioned month and year, exceeding the time of its presentation, clearly resulting in being out of time.

(...) Under such context, in the present case, from the review of the content of the writing through which the Banco Nacional de Fomento appeals to this Control Organism, it is determined that the controlled entity presents the appeal for reconsideration of the administrative act contained in letter No. IRG-DAYEU-V-R-2014-419, of May 14, 2014, out of time.

(...) In merit of the above, (...), this Office resolves:

1. REJECT the appeal for reconsideration by the BANCO NACIONAL DE FOMENTO; and, consequently, CONFIRM the administrative act

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contained in letter No. IRG-DAYEU-V-R-2014-419, of May 14, 2014. (sic)

2. NOTIFY the BANK (...) and Ms. NELY CARMITA ZAMBRANO CEDEÑO, with the full content of this resolution, in order that they may exercise the administrative appeals established in the current legal order (...) (sic);

THAT as indicated by the Regional Intendancy of Guayaquil in letter No. IRG-DAYEU-V-R-2014-419 of May 14, 2014, with which it resolved the claim of Ms. Nely Carmita Zambrano Cedeño; as manifested in the technical report issued for the purpose of resolving the present review appeal; and, according to the receipt record expressed by the banking entity itself in its writing of filing the appeal for reconsideration entered in the aforementioned Intendancy on May 30, 2014, the administrative resolution of the aforementioned letter was notified to the Banco Nacional de Fomento on May 19, 2014, without it having filed in due time the appeals granted by the General Law of Financial System Institutions and the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board;

THAT therefore, it is determined that the Banco Nacional de Fomento filed the appeal for reconsideration out of time, and not within the legal term of eight days, counted from its notification, as it should have been done, that is, until May 29, 2014; consequently, it becomes inadmissible that with the filing of this appeal, it seeks that this control organism annul letter No. IRG-DAYEU-V-R-2014-776 of June 14, 2014 and hence letter No. IRG-DAYEU-V-R-2014-419 of May 14, 2014;

THAT regarding the other arguments raised by the appellant, no analysis is possible, since these were not the subject of the impugned letter No. IRG-DAYEU-V-R-2014-776 of June 14, 2014, with which the Regional Intendancy of Guayaquil ratifies rejecting the appeal for reconsideration filed by the bank against the administrative act contained in letter No. IRG-DAYEU-V-R-2014-419 of May 14, 2014, which is final, having been filed out of time on May 30, 2014, that is, outside the legal term established for this purpose in the Law and the aforementioned regulations;

THAT for all the above, the Banco Nacional de Fomento is required to comply with what was resolved in letter No. IRG-DAYEU-V-R-2014-419 of May 14, 2014, through which the Regional Intendancy of Guayaquil accepted the claim presented by Ms. Nely Carmita Zambrano Cedeño, ordering the referred entity to reintegrate the value claimed by her and send the documentation that accredits said compliance;

THAT finally, it is worth observing that in the review writing (pages 6-10), numeral 5, the appellant refers to letter No. "(...) IRG-DAYEU-V-R-2014-623 of June 17, 2014, through which a sanction is imposed." (sic) and to letter No. "(...) IRG-DAYEU- V-R-2014-391, of May 08, 2014", which have no relation to the present case;

THAT the National Legal Intendancy, through memorandum INJ-DNJ-SAL-2014-0988 of December 9, 2014, recommended to the Banking Board to reject the claim

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contained in the appeal filed by the Commercial Manager of the Banco Nacional de Fomento-Guayaquil; and,

In exercise of its legal attributions,

RESOLVES:

SINGLE ARTICLE.- REJECT the claim contained in the review appeal filed by MGT. Angela Mercedes Avilés Gómez, Commercial Manager of the Banco Nacional de Fomento-Guayaquil; and, consequently, CONFIRM the administrative act contained in letter No. IRG-DAYEU-V-R-2014-776 of June 14, 2014, with which the Regional Intendancy of Guayaquil rejected and confirmed letter No. IRG-DAYEU-V-R-2014-419 of May 14, 2014, in which it ordered the Banco Nacional de Fomento to reintegrate the value claimed by Ms. Nely Carmita Zambrano Cedeño.

NOTIFY.- Given in the Superintendence of Banks and Insurance, in Quito, Metropolitan District, on the eighth of May of two thousand fifteen.

Econ. Rodrigo Landeta Parra
GENERAL INTENDANT (S)
PRESIDENT OF THE BANKING BOARD SESSION (E)

I CERTIFY.- Quito, Metropolitan District, on the eighth of May of two thousand fifteen.

Lcdo. Pablo Cobo Luna
SECRETARY OF THE BANKING BOARD

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Banking Board of Ecuador