Banking Board of Ecuador

RESOLUTION No. JB-2015-3323

THE BANKING BOARD

CONSIDERING:

THAT the second paragraph of the Third Transitional 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 that it was hearing as of the date of entry into force of this Code, within a period of one hundred and eighty days, extendable at the discretion of the Monetary and Financial Policy and Regulation Board;

THAT Mr. Jorge Antonio Pino Matailo, through a communication dated January 22, 2013, filed a claim with the Regional Intendancy of Guayaquil against BANCO PICHINCHA C.A., requesting the return of the sum of US$978.57 for charges not made by him with his VISA BANCO PICHINCHA credit card;

THAT through Official Letter No. IDG-DAYEU-ISFP-REQ-2013-162 of February 7, 2013, the Intendancy of Guayaquil, in order to address the claim presented, according to the procedure established in Chapter IV, Title XX, Book I of the Codification of Resolutions of the Superintendence of Banks and Insurance, respecting due process norms, forwarded the same to Banco Pichincha C.A., so that within a period of fifteen (15) days counted from the receipt of said official letter "...it sends the explanations and defenses, attaching the appropriate supporting documentation and other physical evidence that it considers relevant to the subject matter of the present claim...". (sic);

THAT Banco Pichincha C.A., regarding what was requested, through Official Letter No. BP-ACEC-2013-0312 entered at the Regional Intendancy of Guayaquil on March 14, 2013, stated textually "...In order to attend your request, we respectfully ask that the date, amount, name of the establishment, and document number of the transactions that are the subject of the claim be specified, since with the information provided in your letter it is not possible to carry out the corresponding analysis." (sic);

THAT with reference to the aforementioned response issued by the banking entity, the Intendancy of Guayaquil through Official Letter No. IDG-DAYEU-ISFP-M-2013-003 of March 28, 2013, notified to the bank on April 2, 2013, imposed a fine of US$ 250.00 on the economist Antonio Acosta Espinosa, Adjunct President of Banco Pichincha C.A.;

THAT Banco Pichincha C.A., through a communication without number received at the Regional Intendancy of Guayaquil on April 10, 2013, filed an appeal for reconsideration of the administrative act contained in Official Letter No. IDG-DAYEU-ISFP-M-2013-003 of March 28, 2013; the Regional Intendancy of Guayaquil, with Official Letter No. IRG-DAYEU-V-R-2014-279 of April 7, 2014, rejected the appeal for reconsideration filed and confirmed the administrative act;

THAT through a document entered at the Superintendence of Banks and Insurance on April 24, 2014, Mr. Antonio Acosta Espinosa, Adjunct President of Banco Pichincha C.A., with the professional sponsorship of Dr. Pablo Cadena Merlo, filed an appeal for review of the administrative act contained in Official Letter

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No. IRG-DAYEU-V-R-2014-279 of April 7, 2014, arguing principally:

• That "(...) Indeed, for the Institution it was not possible to analyze the case duly and completely, with the general data contained in Official Letter No. IDG-DAYEU-ISFP-REQ-2013-162, for which reason, and in a very respectful manner, additional information was requested from the Control Body, it being important to mention that considering the additional information cited in Official Letter No. IDG-DAYEU-ISFP-M-2013-003, our communication No. PB-ACEC-2013-0405 dated April 5 of the present year was immediately sent to the Intendancy of Guayaquil, for which reason we expressly reject the unfounded criterion of the Control Body, when mentioning that my represented party has intended to 'delay the administrative procedure...'" (sic). Only with this argument does it manifest that the imposed fine lacks support.

• That they evidence that the imposed fine lacks legal or factual foundation, since Banco Pichincha C.A. has provided the respective facilities, responding formally and sending the corresponding information regarding the claim, "...once the Intendancy of Guayaquil provided the necessary additional data, through Official Letter No. IDG-DAYEU-ISFP-M-2013-003 (...)", noting that the imposition of said fine is neither fair nor due;

THAT with Official Letter No. JB-2014-1039, of April 30, 2014, the Secretary of the Banking Board accepted the appeal for review filed for processing;

THAT in accordance with articles 18 and 19 of the Code of Rights of the Financial User, the Superintendence will process the claims presented by Users of the Financial System according to the applicable legal and regulatory provisions, in exercise of its constitutional and legal functions of regulation and supervision, preventive and corrective, having as a fundamental principle the protection of their rights;

THAT in this line, article 3, Chapter IV.- Procedure for the attention of claims against Institutions of the Financial System, Title XX, Book I of the Codification of Resolutions of the Superintendence of Banks and Insurance and of the Banking Board, provides:

"ARTICLE 3.- Once the claim is accepted for processing, the official delegated by the Superintendent of Banks and Insurance will acknowledge receipt within a maximum period of fifteen (15) days and will indicate to the claimant that the claim has been forwarded to the controlled institution, so that it presents the explanations and defenses that may assist it, and, if necessary, will extend the period for resolving the claim...";

THAT article 134 of the General Law of Financial System Institutions in force at the date of the claim, provided:

"Art. 134.- When in a financial system institution its directors, administrators, officials, or employees infringe laws or regulations governing their operation and said laws or regulations do not establish a special sanction, or in cases where they contravene

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instructions issued by the Superintendence, it will impose the sanction according to the gravity of the infringement, which will not be less than 50 UVCs and will not exceed 3,000 UVCs.

Recidivism of the infringement, of contravening instructions issued by the Superintendence, will be the responsibility of the entity.

The same sanction will be imposed on any person or institution that, without having the qualities indicated in the preceding paragraph, commits infringements to this Law, its regulations, or instructions issued by the Superintendence, when such infringements do not have a specific sanction.";

THAT regarding the argument of the appellant about the impossibility of analyzing the case duly and completely with the general data contained in the request letter made by the Intendancy of Guayaquil with Official Letter No. IDG-DAYEU-ISFP-REQ-2013-162 of February 7, 2013, within the claim presented by Mr. Jorge Antonio Pino Matailo against Banco Pichincha C.A.; it is necessary to clarify the following:

• The Intendancy of Guayaquil admitted the aforementioned claim for processing, with Official Letter No. IDG-DAYEU-ISFP-REQ-2013-162 of February 7, 2013, and at the same time transferred to the banking entity the documentation attached to it by the user, granting a period of fifteen days for it to present the pertinent explanations and defenses, in order to resolve said claim.

• Banco Pichincha C.A. with Official Letter No. BP-ACEC-2013-0312, received at the Regional Intendancy of Guayaquil on March 14, 2013, in response to said request, informed the following:

"...In order to attend your request, we respectfully ask that the date, amount, name of the establishment, and document number of the transactions that are the subject of the claim be specified, since with the information provided in your letter it is not possible to carry out the corresponding analysis." (sic). (Emphasis added).

• The Intendancy of Guayaquil with reference to what was indicated and requested by the bank regarding the request raised, through Official Letter No. IDG-DAYEU-ISFP-M-2013-003 of March 28, 2013, imposed a monetary sanction on the bank, for not responding in a clear and documented manner, based on the following:

"(...) From the documentation sent by Mr. Jorge Antonio Pino Matailo to this Intendancy, there is the letter s/n of January 9, 2012, with which Banco Pichincha C.A. responds to the claim presented by the user before its representative, which leaves without support the response given in Official Letter No. BP-ACEC-2013-0312, a fact that has unjustifiably delayed the present administrative claim. (Underlining added).

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(...), this Office in exercise of the powers delegated by the Superintendent of Banks, (...), imposes on you, in your capacity as legal representative of BANCO PICHINCHA C.A., a fine of US$ 250.00 (...)";

THAT consequently, it is specified that Banco del Pichincha C.A. exceeded the fifteen-day term granted to present the defenses and explanations that may assist it, regarding the claim of Mr. Jorge Antonio Pino Matailo, as demanded by the aforementioned claims regulations; since in Official Letter No. BP-ACEC-2013-0312 on March 14, 2013, it did not attach the requested defense information, and without taking into account that in the aforementioned request letter within the documentation provided by the claimant, the communication of January 9, 2012 was attached, with which, at that time, Banco Pichincha C.A. responded to the claim formulated by the user, that is, it had antecedents of the case;

THAT furthermore, based on the documents in the file, it is observed that Banco del Pichincha C.A. through Official Letter No. BP-ACEC-2013-0405, received at the Regional Intendancy of Guayaquil on April 8, 2013, that is, 6 days after being notified of the fine, responded in a documented manner to the request made with Official Letter No. IDG-DAYEU-ISFP-REQ-2013-162 of February 7, 2013 with the argument that: "...once the Intendancy of Guayaquil provided the necessary additional data,..." (sic); based on which, said unit was able to resolve the claim raised by Mr. Jorge Antonio Pino Matailo, reiterating that said documentation should have been sent in a timely and complete manner in compliance with what is established in the law and the regulations in force at that date, in defense of its own interests. The aspects pointed out leave without support what is alluded to by the appellant, in the sense that it rejects the unfounded criterion of this control body that Banco Pichincha C.A. has intended to delay the procedure, and that the administrative act with which the fine was imposed lacks legal or factual foundation;

THAT it is the competence and attribution of this control body under the provisions of article 180, letter b) of the General Law of Financial System Institutions, to ensure the stability, solidity, and correct functioning of the institutions subject to its control; and in general that they comply with the norms governing their operation, so that under this context, in concordance with the aforementioned article 134, it is empowered to impose "sanctions" on the controlled financial entities, as well as their directors, administrators, and officials, when they contravene the provisions that govern them or instructions issued by it, attributions that it exercises in the administrative field as provided in article 140 of the aforementioned law; in such virtue, in the present case it took the pertinent administrative actions that correspond to it by law, therefore becoming inadmissible the arguments raised by the appellant through the present appeal for review;

For all the above, due to the non-compliance referred to in the preceding considerations, by Banco Pichincha C.A., which has been ratified by the Regional Intendancy of Guayaquil in its technical report contained in Official Letter No. IRG-DAYEU-2014-293 of September 25, 2014, the monetary sanction contained in Official Letter No. IDG-DAYEU-ISFP-M-2013-003 of March 28, 2013, which was the object of an appeal for reconsideration, denied through Official Letter

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impugned No. IRG-DAYEU-V-R-2014-279 of April 7, 2014, was strictly framed within the powers conferred by the General Law of Financial System Institutions, in concordance with what is established in the applicable regulations in force for the case;

THAT the National Legal Intendancy, through memorandum INJ-DNJ-SAL-2015-0151 of February 10, 2015, recommended to the Banking Board to reject the claim contained in the appeal for review filed; and,

In exercise of its legal powers,

RESOLVES:

SINGLE ARTICLE.- REJECT the claim contained in the appeal for review filed by Mr. Antonio Acosta Espinosa, Adjunct President of Banco Pichincha C.A.; and, consequently, CONFIRM Official Letter No. IRG-DAYEU-V-R-2014-279 of April 7, 2014, through which the Regional Intendant of Guayaquil rejected the appeal for reconsideration filed and at the same time confirmed the administrative act contained in Official Letter No. IDG-DAYEU-ISFP-M-2013-003 of March 28, 2013, with which it imposed on the appellant a monetary sanction of US$ 250.00, for not having responded in a clear and documented manner to the request made with Official Letter No. IDG-DAYEU-ISFP-REQ-2013-162 of February 7, 2013, within the procedure of the claim presented by Mr. Jorge Antonio Pino Matailo.

NOTIFY.- Given at the Superintendence of Banks, in Quito, Metropolitan District, on April 1, two thousand fifteen.

Econ. Rodrigo Landeta Parra GENERAL INTENDANT, S/ PRESIDENT OF THE BANKING BOARD, E

I CERTIFY.- Quito, Metropolitan District, on April 1, two thousand fifteen.

Lcdo. Pablo Cobo Luna SECRETARY OF THE BANKING BOARD