Resolution No. JB-2015-3368 of the Banking Board of Ecuador

Banking Board of Ecuador

RESOLUTION NO. JB-2015-3368

THE BANKING BOARD

CONSIDERING:

THAT in the resolution of the present appeal, it has been considered what is provided in the second paragraph of the Third Transitional Provision of the Organic Monetary and Financial Code, published in the Official Register Supplement No. 332 of September 12, 2014, which stipulates 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 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 Superintendence of Banks and Insurance and the Banking Board, and the norms issued by the control bodies, will maintain their validity in all that does not oppose the Organic Monetary and Financial Code, until the Monetary and Financial Policy and Regulation Board resolves what corresponds, according to the case;

THAT on November 20, 2007, through a private document, the Mutualista de Ahorro y Crédito para la Vivienda “Ambato” celebrated a promise of sale and purchase with Mr. Tito Rolando Tejada Proaño (widower) and Mrs. Victoria Gerardina Campos Paredes (divorced) in their capacity as promissory buyers, regarding house number 20 of the “Las Rosas del Huachi Housing Complex”; and that in the same document, the price was stated as USD 55,519.34 US dollars, with the promissory buyers committing to pay USD 15,000 upon signing the promise of sale and purchase, USD 5,000 upon delivery; and the balance with a mortgage credit granted by the entity;

THAT by public deed of March 26, 2008, granted before the Seventh Notary of the canton of Ambato, and registered in the Property Registry of Ambato on April 1, 2008, Mutualista sold to Mrs. Gerardina Campos, civil status divorced, house number 20 of the “Las Rosas del Huachi Housing Complex,” for the value of USD 42,480.64; that on April 24, 2008, Mutualista celebrated with Mr. Tito Rolando Tejada Proaño, in his capacity as debtor, and with Mrs. Gerardina Campos as “joint guarantor,” a loan contract under which Mutualista granted Mr. Tejada a credit for USD 35,000 dollars, clarifying that the loan was secured with an open mortgage constituted in favor of Mutualista on the property owned by Mrs. Campos; and that on April 25 of the same year, the general management of the entity gave the order to the constructor of the housing complex “Las Rosas del Huachi” to deliver the property to Mr. Tito Rolando Tejada Proaño and Mrs. Victoria Gerardina Campos Paredes, an act that was executed on the same date as evidenced by the house delivery-receipt act, to which Mr. Tejada Proaño and Mrs. Campos Paredes appeared as buyers and Mutualista, who signed the referred document;

THAT on June 18, 2010, the spouses Victoria Gerardina Campos Paredes and Tito Rolando Tejada Proaño, jointly with engineer Jorge Reshuán, then General Manager of Mutualista Ambato, celebrated before the Seventh Notary of the Canton of Ambato, a public deed (registered on July 5, 2010), with which

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Mrs. Campos, in her capacity as owner of house No. 20, located on José Peralta and El Regenerador street in the Huachi Chico parish, canton of Ambato, mortgaged to Mutualista, constituted, with the acceptance of the entity, the right of use and habitation over the mentioned property, in favor of Mr. Tito Rolando Tejada, who also signed said document;

THAT on August 20, 2013, Mr. Rolando Tejada requested Mutualista to provide him with certified copies of the documents related to the credit and mortgage deed, as well as the updated statement as of the payment date; that on October 7, 2013, he requested the Manager of Mutualista to provide him with a certification regarding the value canceled for the credit in his savings account No. 451661 and the reason why the credit was granted, among others;

THAT according to the appeal file, on October 25, 2013, the Legal Deputy Manager of Mutualista presented to the General Manager a report related to the case of Mr. Tito Rolando Tejada, in which it is mentioned that with letter MA-GER-2013-433 of September 11, 2013, once he became aware of “the documentary inconsistency present in the credit folder,” he contacted Mrs. Victoria Campos Paredes to indicate that an immediate and indispensable documentary validation regarding the deed of March 26, 2008, was required, for which her presence was requested on September 13, 2013 “in order to indicate the mechanisms of action that must be adopted, so as to avoid the initiation of legal actions by our Legal Department (...)”; however, the lady manifested that the property is exclusively hers based on an agreement between Engineer Jorge Reshuan, then General Manager of Mutualista, and Mr. Tito Tejada, “directed to the fact that the ownership of the property belongs to Mrs. Campos”; in the same report, it is stated that Mrs. Campos (currently separated from her spouse) refused to carry out a clarifying deed because the credit granting procedure was known by the former General Manager, the credit area officials, and her spouse, and that for this reason there is a deed in which the right of use and habitation is granted to him; and that in said report it is indicated that the credit does not have real guarantee, that there was inefficiency and negligence on the part of the officials who carried out the dispatch and settlement of the credit, including the legal advisor at that time, since there is no real and enforceable guarantee on the credit, which affects the legal risk of the institution;

THAT in response to Mr. Tejada's request for documentation, through letter MA-GER-2013-505 of November 1, 2013, the General Manager of Mutualista sent him a communication in which he indicated that the canceled value of the credit as of October 2013 was USD 32,955.32; that the credit line approved by the entity's board was classified as housing and that the confidential credit report states that Mrs. Victoria Gerardina Campos, who at the date of granting the credit was the partner of Mr. Rolando Tejada (subsequently spouse), had constituted an encumbrance in favor of Mutualista Ambato;

THAT on November 27, 2013, as appears from the file, Mrs. Gerardina Campos addressed Mutualista, as the spouse of Mr. Tito Rolando Tejada and in that capacity, requested that from his savings account,

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money be transferred and the total debt be covered; and that through letter No. DCMA-OF026-2013 of December 3, 2013, the Client Defender of Mutualista Ambato notified the entity of its pronouncement regarding the request presented by Mr. Tito Rolando Tejada Proaño, aimed at delivering him certified documentation, among them, the credit operation with said financial institution and the mortgage deed of the house awarded in his favor, while also convening the parties to a conciliation to be held on December 6, 2013;

THAT on December 4, 2013, through document No. 8700025561, Mutualista issued the receipt for the cancellation of dividends for USD 20,189.87 that originated in account No. 451780 - Savings on Demand -1600189110- CAMPOS PAREDES VICTORIA GERARDINA, for the concept of payment of the housing credit 2781-01-03 1800411835 of TEJADA PROAÑO TITO ROLANDO, with which the total credit was canceled;

THAT on January 10, 2014, Mr. Rolando Tejada Proaño filed a claim in which he states that in 2007 he signed a housing credit application for USD 35,000, to buy a house located on José Peralta and El Regenerador street, Sector Huachi Chico in Ambato, whose value was USD 55,000, for a ten-year term, with installments to be deducted from his savings account; that over time the property is in the name of Mrs. Victoria Gerardina Campos Paredes, who only held the condition of guarantor of the loan and has not received any public deed in his favor; that he attaches a copy related to said operation that he obtained through the Client Defender of the entity, since according to his indication, Mutualista initially denied it to him; that from said documentation it is evident that to that date he has not been delivered the mortgaged property that should be in his name and that Mutualista did not comply with its offer; that for this reason he requests the Superintendence to order Mutualista to comply with the offer made by the financial entity and/or the return of the money paid, that is, USD 55,000, plus the generated interests and damages incurred to date;

THAT prior to the application of due process and analyzing the explanations provided by Mutualista Ambato, through letter No. DNAE-SAU-2014-03345 of May 28, 2014, the National Directorate of User Attention and Education, based on the fact that the claimant had knowledge of the procedure applied, both to the granting of the credit and to the sale of the property and the granting of use and habitation in his favor; and, due to not having established that Mutualista incurred in an incorrect procedure, resolved that the return of the value requested by Mr. Tejada does not proceed; and, that the validation regarding the ownership of the property cannot be resolved in the administrative sphere but must be submitted to the knowledge and resolution of a competent judicial authority;

THAT with writing of June 6, 2014 and its extension of June 17, 2014, Mr. Tito Tejada filed before the Banking Board an appeal for review against the resolution of the Director of the National Directorate of User Attention and Education contained in letter No. DNAE-SAU-2014-03345 of May 28, 2014; that on June 30, 2014, he sent again documentation inherent to the granting of the credit,

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Banking Board of Ecuador Resolution No. JB-2015-3368 Page No. 4 nsavings book, as well as the legal report of Mutualista, related to his case, in order to be considered in the corresponding analysis; that also the General Manager of Mutualista presented on July 7, 2014 a writing in which he states that the appellant has not met the presentation requirements of the appeal for review, since he omits to state that the one who holds the right of ownership of the property is Mrs. Victoria Campos; that at the moment there are legal processes in the ordinary justice; that the promise of sale and purchase was only made in a private document and not by public deed as the appellant claims; that there is also a deed of constitution of use and habitation in his favor; that the loan payments according to the deposit slips were made by Mrs. Campos; and, that he requests the appeal filed to be rejected, since the appellant has tried to solve a conflict that implies judicial procedures and not administrative ones;

THAT Mr. Tito Rolando Tejada bases his appeal for review on the fact that in 2007 Mutualista Ambato granted him a credit with mortgage guarantee based on his savings account No. 451661 and payments through debits from his savings account, granting him USD 35,000; that the payments made by him amount to USD 59,000.00, a fact that was not considered at the celebration of the definitive deed; that on November 20, 2007, the promise of sale and purchase of house 20 of the “Las Rosas del Huachi Housing Complex” was signed with the legal representative of Mutualista, both the appellant and Mrs. Campos Paredes; that on March 26, 2008, the deed of sale and purchase was granted in favor of Victoria Gerardina Campos, leaving aside the deed of promise of sale and purchase; that two years later, the deed was celebrated in which the right of use and habitation of said property was granted to him, advised for this by representatives of Mutualista; that in no way was the fact known and accepted by the appellant that Mrs. Victoria Campos becomes the absolute owner of the mortgage credit granted to the appellant and paid by him and signs individual deeds, since it is supposed that a person who requests a credit bases it on the savings maintained in his account as backing and upon granting the credit he is the owner of it and signs the mortgage of the property; that the participation and rights over the property undoubtedly correspond to him and the deposit slips and debits for the payment of the credit were always made through his savings account; that the officials of Mutualista told him that he had to open an account as a requirement for the credit to be granted for USD 35,000.00, determining for the appellant the savings account No. 451661; that the anomalous situation originated by the incorrect procedure of Mutualista, by accepting that only one of the promissory buyers becomes the absolute owner of the property subject to the administrative claim, prejudicing the holder of the savings account, through which the payments are debited; that he impugns the conclusions, the superficial analysis and the resolution of file closure issued by the Director of the National Directorate of User Attention and Education, for not adjusting to law, leaving him in a state of defenselessness, for which he appeals to the Banking Board;

THAT regarding the grounds of the appeal presented by the legal representative of Mutualista, it is necessary to point out that article 226 of the Constitution determines that the institutions of the State, their bodies, dependencies, and public servants will exercise only the competencies and faculties attributed to them in the Constitution and in the Law;

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THAT article 168 of the Constitution of the Republic in its numerals 1) and 3) enshrines the principle of judicial independence; and, that since it is not attributed to the Superintendence of Banks by the Constitution or the law, it cannot declare rights, nor resolve controversies relative to damages and losses, nor even to render ineffective contracts, since it lacks competence for this;

THAT article 213 of the Constitution of the Republic establishes that the Superintendence of Banks is the technical body for supervision, surveillance, control, intervention, and auditing of public and private financial entities, with the purpose that the activities and services they provide are subject to the legal framework and attend to the general interest;

THAT the regulation of title X, book I of the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, conceives legal risk as the probability that an institution of the financial system suffers direct or indirect losses, among other causes, due to poor drafting of texts, formalization or execution of acts, contracts or transactions, even those different from its ordinary business, or because the rights of the contracting parties have not been clearly stipulated, a situation to which the entity has been exposed in the present case;

THAT in the case we are dealing with, if the order with which Mr. Rolando Tejada authorized Mutualista that the deed of sale and purchase be in the name of Mrs. Gerardina Campos does not appear in the file; nevertheless, according to documentation that appears in the same file, Mr. Rolando Tejada has appeared and has accepted that the right of use and habitation be constituted in his favor on the housing owned by Mrs. Gerardina Campos, who at that date was already his spouse and owner of the property; it is not explained why when celebrating the loan contract Mr. Tejada has accepted that it is Mrs. Gerardina Campos herself who appears as the owner of the property and extends the mortgage guarantee of the credit he has received from Mutualista; and, finally, it has been verified from the copy of the savings book of account 451861 (identification 1800411835) owned by Mr. Tejada, the debit made on November 26, 2013, for the value of USD 20,637.00, with which the credit granted by Mutualista would be canceled;

THAT regarding the spouses Rolando Tejada Proaño and Gerardina Campos, as appears from the website of the Judicial Function of Tungurahua, there are several causes in process, related to recognition of de facto union, with divorce and dissolution of the marital society;

THAT the appellant invokes in his favor article 5, chapter IV, title XX, book I of the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, which requires the determination by the control body of an incorrect procedure of the financial institution, as a condition to order the restitution of the claimed values, which is not applicable to the present case since said norm in no way exempts the client from his responsibilities and much less when he has had knowledge through the legal instruments

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that he has accepted and signed, of the legal situation of the property; and, finally, since it has not been verified that the financial entity has incurred in incorrect procedures, this body cannot pronounce itself regarding the rights and obligations that spouses or ex-spouses owe each other by the marital society regime they maintain, or by the property society that prior to marriage, as cohabitants, they may have maintained, all of which corresponds to the competent judges within a process of liquidation of such patrimonial regimes;

THAT the National Legal Intendancy, through memorandum INJ-DNJ-SAL-2015-0073 of January 28, 2015, recommended to the Banking Board to reject the claim contained in the appeal filed by Tito Rolando Tejada Proaño; and,

IN exercise of its legal attributions;

RESOLVES:

SINGLE ARTICLE.- REJECT the appeal for review filed by Mr. Tito Rolando Tejada Proaño; and, consequently CONFIRM the administrative act contained in letter No. DNAE-SAU-2014-03345 of May 28, 2014, with which the National Directorate of User Attention and Education denied the claim filed by him against the Mutual Association of Savings and Credit for Housing “Ambato”.

NOTIFY.- Given at the Superintendence of Banks and Insurance, in Quito, Metropolitan District, on the twenty-second of April of two thousand fifteen.

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

I CERTIFY.- Quito, Metropolitan District, on the twenty-second of April of two thousand fifteen.

(Signature) Lcdo. Pablo Cobo Luna SECRETARY OF THE BANKING BOARD