Resolution No. JB-2015-3386 of the Banking Board of Ecuador

Banking Board of Ecuador

RESOLUTION No. JB-2015-3386

THE BANKING BOARD

CONSIDERING:

THAT on March 7, 2014, Mr. Manuel Arbeli Bacilio Peralta filed a written complaint with Banco del Pacífico S.A., stating that he did not recognize or authorize the purchases and ATM withdrawals made with his Bancomático card 511054xxxxxx5478, and therefore requested the return of the withdrawn funds as well as the cancellation of his debit card;

THAT on March 25, 2014, Mr. Manuel Arbeli Bacilio Peralta submitted a complaint against Banco del Pacífico S.A. to the Superintendency of Banks using the respective form, in which he stated that he approached the ATM at Mall del Sur and had difficulty withdrawing his money; and that he then went to the bank to withdraw money and update his passbook, where he discovered that withdrawals had been made from the same account via ATM without his authorization, for which he requested the return of the money and certification that he had not made any transactions;

THAT, prior to a request for information and analysis of the bank's explanations, the Regional Intendancy of Guayaquil, through letter No. IRG-DAyEU-V-R-2014-523, dated May 29, 2014, indicated that the withdrawals challenged by the complainant were made through ATMs charged to his savings account, within the limits authorized by the financial entity; that the Bancomático card usage contract includes the client's obligation to safeguard the card and not reveal the secret number provided by the bank, which is necessary for its use; that furthermore, according to the contract, the bank is exempt from its obligations when the account holder has not handled their card with due diligence and care, which occurs in cases of loss or theft if immediate notice is not given to the bank, or when the access key is given to third parties or other negligence allows third parties to access their information; that a review of the DVD shows a person inserting the card, presumably belonging to the complainant, which reveals a lack of custody of the card; and, with these antecedents, the Regional Intendancy of Guayaquil denied the complaint filed by Mr. Manuel Arbeli Bacilio Peralta against Banco del Pacífico S.A.;

THAT with a document presented on July 1, 2014, and its clarification on July 23, 2014, Mr. Manuel Arbeli Bacilio Peralta filed an administrative review appeal before the Banking Board against the administrative act contained in letter No. IRG-DAyEU-V-R-2014-523, dated May 29, 2014;

THAT Mr. Manuel Arbeli Bacilio Peralta bases his administrative review appeal on the grounds that the response given to his case be reviewed and a criterion be issued guaranteeing his right;

THAT regarding the grounds presented by the appellant, it must be noted that the second paragraph of the Third Transitional Provision of the Organic Code of Monetary and Financial Law provides that the Banking Board will continue to act until it resolves all complaints, appeals, and other administrative procedures it was handling on the date of the entry into force of said code, within a period of one hundred and eighty days, extendable at the discretion of the Monetary and Financial Policy and Regulation Board; and that the First Transitional Provision of the same legal body establishes that the resolutions contained in the Codification of Resolutions of the Superintendency of Banks and Insurance and the Banking Board, and the norms issued by the control bodies, will remain in force in all that does not oppose the Organic Code of Monetary and Financial Law, until the Monetary and Financial Policy and Regulation Board resolves what corresponds, according to the case;

THAT the file contains several prints corresponding to complaint screens for various transactions and account balance inquiries, from March 1 to 3, 2014; and that in said prints dated March 10, 2014, the following phrase appears: "client had their card changed";

THAT in the case at hand, letter No. IRG-DAyEU-V-R-2014-523, dated May 29, 2014, establishes that the amount of the unauthorized transactions equals USD 1,552.01 and not USD 1,971.55 as the complainant claims; and that said transactions were carried out on different dates, in various ATMs, and are within the limits authorized by the bank;

THAT among the obligations recorded in the Bancomático card usage contract, the client's obligation to safeguard their debit card and not reveal the secret number provided by the bank is listed, while also exempting the bank from responsibility for losses, thefts, misplacements, among others, to which the client may be subject by persons unknown to the bank during the operation and management of such services.

THAT the card that was delivered by the client to the bank at the time of filing the complaint corresponded to another person and had already been cancelled previously, so it is concluded that he did not have possession of his debit card;

THAT between the date the unauthorized transactions occurred and the date the complaint was filed with the bank, more than three days passed; and that from the information contained in the appeal file, no breaches by the bank of the operational risk management regulations contained in Chapter V, Title X, Book I of the Codification of Resolutions of the Superintendency of Banks and Insurance and the Banking Board, in force on the date the claimed events occurred, could be determined;

THAT the second paragraph of Article 5, Chapter IV, Title XX, Book I of the Codification of Resolutions of the Superintendency of Banks and Insurance and the Banking Board, which governs matters inherent to complaint handling, provides:

"If the situation that motivated the complaint referred to in the previous paragraph originated in an incorrect procedure of the controlled institution, which caused harm to the complainant, the Superintendency of Banks and Insurance may order the return of the claimed values, in exercise of the functions and attributes contemplated in letters b) and d) of Article 180 of the General Law of Institutions of the Financial System, granting the legal representative of the entity a period that may not exceed fifteen (15) days from notification to send, under the precautions of the Law, the record of compliance with the order issued.";

THAT in the case at hand, it has not been established according to law that Banco del Pacífico S.A. has incurred in an incorrect procedure, as required by the aforementioned norm;

THAT the National Legal Intendancy, through memorandum INJ-DNJ-SAL-2014-1060 of December 23, 2014, recommended to the Banking Board to reject the claim contained in the administrative review appeal filed;

AND, in exercise of its legal powers;

RESOLVES:

SINGLE ARTICLE.- REJECT the claim contained in the administrative review appeal filed by Mr. Manuel Arbeli Bacilio Peralta; and, consequently, RATIFY the administrative act contained in letter No. IRG-DAyEU-V-R-2014-523, dated May 29, 2014, through which the Regional Intendant of Guayaquil denied the complaint filed by the appellant against Banco del Pacífico S.A.

NOTIFY.- Given at the Superintendency of Banks, in Quito, Metropolitan District, on the thirtieth day of April of two thousand fifteen.

[Signature] Econ. Rodrigo Landeta Parra GENERAL INTENDANT, S PRESIDENT OF THE BANKING BOARD, E

I CERTIFY.- Quito, Metropolitan District, on the thirtieth day of April of two thousand fifteen.

[Signature] Lcdo. Pablo Cobo Luna SECRETARY OF THE BANKING BOARD