Banking Board of Ecuador

RESOLUTION No. JB-2015-3357

THE BANKING BOARD

CONSIDERING:

THAT this appeal is analyzed in accordance with the First Transitional Provision of the Organic Monetary and Financial Code, published in the Official Register Second Supplement No. 332, on September 12, 2014, whose text states that resolutions contained in the Compilation of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, and the norms issued by the control bodies, will remain in force insofar as they do not oppose what is established in the Organic Monetary and Financial Code, until the Monetary and Financial Policy and Regulation Board resolves what corresponds, according to the case; and, with the second paragraph of the Third Transitional Provision, which states that the Banking Board will continue to act until it resolves all claims, appeals, and other administrative procedures it was hearing as of the date of entry into force of the same, within a period of one hundred and eighty days, extendable at the discretion of the Monetary and Financial Policy and Regulation Board. From the aforementioned provisions, it is established that the Banking Board is competent to resolve the present review appeal;

THAT by communication entered into the Superintendence of Banks and Insurance on October 25, 2013, Mrs. Amada Vaca Chango filed a complaint against Pacificard S.A., Card Issuing and Administration Company, regarding charges she claims she did not make, amounting to USD 1,744.88, in the following terms: "(...) I wish to inform you, as the competent authority, that my cards were stolen on October 9, 2013, and were used improperly (...) I went to the offices of said entity (...) and requested copies of the vouchers to verify my signature. They delivered them to me a few days later and I was able to verify that it was not my signature; however, they proceeded to pay those charges (...) I proceeded to inform the prosecutor's office so that they continue with the investigation process (...) where the purchases were made and the graphotechnical expertise (...)". [sic];

THAT the National Director of User Attention and Education, through letter No. DNAE-SAU-2014-02131, of April 8, 2014, requested Pacificard S.A. Card Issuing and Administration Company to send the pertinent explanations and defenses;

THAT through letter No. DJ-PC-268-2014, received by the control body on April 22, 2014, the Judicial Attorney of Pacificard S.A. informed that the complaint of Mrs. Amanda Vaca Chango was not resolved favorably because the notification to block the card was made after the charges, as indicated by the control body's regulations and the contract;

THAT with letter No. DNAE-SAU-2014-003062, of May 20, 2014, the Acting Subdirector of User Attention, resolved the following: "(...) Pacificard must reverse the charges generated on the Mastercard No. (...), for the total of the charges made on October 9, 2013, that is, for the amount of ONE THOUSAND SEVEN HUNDRED FORTY-FOUR WITH 88/100 DOLLARS OF THE UNITED STATES OF AMERICA (USD 1,744.88). Proof of the action taken will be sent within a period of 8 days counted from the receipt of this letter";

THAT by writing received at the Superintendence of Banks and Insurance on May 30, 2014, the economist Miguel Carrillo Bastidas, Acting General Manager and as such legal representative of Pacificard S.A. Card Issuing and Administration Company, with the professional sponsorship of lawyer Gerson Haro Merino, filed a review appeal before the Banking Board against letter No. DNAE-SAU-2014-03062, of May 20, 2014; with the following arguments: that to resolve the administrative claim, the corresponding regulations and the credit card contract signed by the cardholder with Pacificard S.A. must be taken into consideration; that it is law for the parties, in concordance with what the Compilation of Resolutions of the Superintendence of Banks and Insurance and the Banking Board establishes, which regulates conditions related to the loss, theft, or deterioration of the card; that the report of the credit card as stolen was subsequent to the transactions not recognized by the cardholder; that as there is no certainty that the cardholder's signature was on the credit card or not, they referred to the identification of the cardholder; that the regulations establish the obligation to issue the charge slip and to verify that the signature and rubric provided by the cardholder is the same as that on the back of the card; that PACIFICARD S.A. cannot sanction and/or demand corrective measures from commercial establishments with which it has no contractual relationship; and, that since the commercial establishment's employee presented identification because the vouchers show the citizen ID number and/or identity of the cardholder and also the signature provided in those vouchers is similar to that provided in said documents, there is no absence of control and verification by the commercial establishment;

THAT with letter No. JB-2014-1448, of June 6, 2014, the Acting Secretary of the Banking Board, accepted the review appeal filed for processing, and with letter No. JB-2014-1449, of the same date, informed Mrs. Amada Beatriz Vaca Chango of the matter;

THAT Article 1, in concordance with Article 18, letters b) and o) of the General Law of Institutions of the Financial System, assigned to the Superintendence of Banks and Insurance, within its competence, the supervision and control of the financial system, in all of which the protection of the public's interests is taken into account, as well as requiring that controlled institutions present and adopt the corresponding corrective measures;

THAT the Banking Board, with the purpose of achieving effective compliance with the provisions emanating from both the control body and the collegiate body, integrated into Chapter IV, of Title XX, of Book I, of the Compilation of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, the procedure for handling claims against institutions of the financial system, always attentive to the protection of the public's interests as mandated by law, whose Article 5 establishes that if the result of the analysis performed by the Superintendence determines the need for the controlled institution to introduce corrective measures to regularize the situation that motivated the claim, the Superintendent of Banks and Insurance or his delegate will issue the corresponding disposition. Likewise, if the situation that motivated the claim referred to in the previous paragraph originated in an incorrect procedure of the controlled institution, which caused harm to the claimant, the Superintendence of Banks and Insurance may order the return of the claimed values, granting the legal representative of the entity a period that may not exceed fifteen (15) days from the notification to send, under the precautions of the law, the proof of compliance with the order issued;

THAT numeral 13.9, of Chapter V.- Constitution, functioning, and operations of issuing companies or credit card administrators and credit card departments of Financial Institutions; Title I.- Of the Constitution; Book I.- General Norms for the application of the General Law of Institutions of the Financial System, of the Compilation of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, determines the conditions related to the loss, theft, or deterioration of the credit card. If any of these cases occur, the cardholder, duly identified by full names, identity or citizenship ID number, and card number, must notify the issuer of the particular, and the first will not be responsible, from that moment on, for charges made against the card reported as lost or stolen. The notification can be made in writing or by telephone, in which case the magnetic message will constitute means of proof, according to what is provided in Article 125 of the Code of Civil Procedure. The notification made by telephone must be ratified in writing within the term of 48 hours;

THAT with respect to the signatures on the vouchers, which have not been assumed by the cardholder as their own, numeral 15.2 of Article 15, Chapter V, Title I, Book I of the Compilation, ibid, the norm in force at the date of the event, states that institutions authorized to issue or administer credit, payment, or affinity cards must enter into written contracts with affiliated establishments, in which the obligation of the establishment to issue the charge slip and to verify that the signature and rubric provided by the cardholder is the same as that on the back of the card will be stipulated; and, that in case of doubt, the establishment will require the identification document and note on the receipt the number of the identity card or passport, that is to say, that the credit card is a means of payment with the sole presentation of the same; nevertheless, affiliated commercial establishments have the contractual obligation to carry out the respective verifications;

THAT although the cardholder assumes contractual responsibilities, it also corresponds to the issuer and/or administrator of the credit card Pacificard S.A., regarding securities to prevent that establishments with which it in turn celebrates affiliation contracts have safe sales policies, so that the charge slips or vouchers backing the consumption reflect legitimate transactions; given the existence of clauses that contractually link Pacificard S.A. with the establishment's non-observance regarding the verification of the cardholder's identity, even if the charges were from acquiring different banks, precisely due to the contractual relationship between them, otherwise, it would be leaving the cardholder in a state of defenselessness;

THAT although it is true that the charges subject to the controversy were made before the user's notification of the theft of the credit card and personal documents, lightness and lack of due diligence by the commercial establishments are observed, in not adequately verifying the user's signature, which cannot affect the cardholder, so the consumed values must be charged to the party that acted incorrectly; and,

IN exercise of its legal attributes,

RESOLVES:

SINGLE ARTICLE.- REJECT the claim contained in the review appeal filed by the Acting General Manager of Pacificard S.A. Card Issuing and Administration Company; and, consequently, CONFIRM the administrative act contained in letter No. DNAE-SAU-2014-03062, of May 29, 2014.

NOTIFY.- Given at the Superintendence of Banks, in Quito, Metropolitan District, on April 15, two thousand fifteen.

Econ. Rodrigo Lardeta Parra GENERAL SUPERINTENDENT, ACTING PRESIDENT OF THE BANKING BOARD

I CERTIFY.- Quito, Metropolitan District, on April 15, two thousand fifteen.

Lcdo. Pablo Cobo Luna SECRETARY OF THE BANKING BOARD