Banking Board of Ecuador

RESOLUTION No. JB-2015-3471

THE BANKING BOARD

CONSIDERING:

THAT this appeal is resolved 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 Superintendency of Banks and Insurance and the Banking Board, and the norms issued by the control bodies, will remain in effect insofar as they do not oppose what is provided in the Organic Monetary and Financial Code, until the Monetary and Financial Policy and Regulation Board resolves what corresponds, according to the case; and, it falls within what is provided in article 73 of the aforementioned Code, for which reason it must be known and resolved by this control body;

THAT with letter No. IDG-DAYEU-V-R-2012-104 of December 20, 2012, notified to Mrs. Rita Julieta Jima Cabrera on January 2, 2013, the Regional Intendency of Guayaquil resolved not to accept the claim presented by the claimant against Banco Pichincha C.A.;

THAT through communication received by the control body on January 11, 2013, Mrs. Rita Julieta Jima Cabrera filed an administrative reconsideration appeal against the administrative act contained in letter No. IDG-DAYEU-V-R-2012-104 of December 20, 2012;

THAT with letter No. IDG-DAYEU-RP-2013-004 of January 23, 2013, the reconsideration appeal filed was qualified and admitted for processing;

THAT through letter No. IRG-DAYEU-V-R-2013-534 of November 1, 2013, the Regional Intendency of Guayaquil resolved to REVOKE the administrative act contained in Letter No. IDG-DAYEU-V-R-2012-104 of December 20, 2012, ordering that BANCO PICHINCHA C.A. proceed to restore to the claimant the sum of ONE HUNDRED FIFTY-ONE AND 00/100 UNITED STATES DOLLARS (US$151.00) debited from savings account No. 2200020735, which the appellant holds in the aforementioned bank, an entity that may repeat the collection of the aforementioned value against the bank owning the automated teller machines where the challenged transactions were made, as established in article 5 of chapter IV "Procedure for handling claims against institutions of the financial system", of title XX "Of the Superintendency of Banks and Insurance", book I "General Norms for the application of the General Law of Financial System Institutions", of the Compilation of Resolutions of the Superintendency of Banks and Insurance and the Banking Board;

THAT with a document entered into this control body on November 15, 2013, Banco Pichincha C.A. filed an administrative reconsideration appeal against the administrative act contained in letter No. IRG-DAYEU-V-R-2013-534 of November 1, 2013, in order for it to be REVOKED;

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THAT through letter No. JB-2013-2484 of November 20, 2013, Licentiate Pablo Cobo Luna, Secretary of the Banking Board, referring to the document received at the Superintendency of Banks and Insurance on November 15, 2013, through which Banco Pichincha C.A. filed an administrative reconsideration appeal before the Banking Board against the administrative act contained in letter IRG-DAYEU-V-R-2013-534 of November 1, 2013, within the claim that Mrs. Rita Julieta Jima Cabrera maintains against the banking entity, disposed:

"Regarding this, having reviewed the aforementioned document, the appeal filed is deemed inadmissible; therefore, I have ordered its filing, as the type of appeal filed is not applicable in this case; because, before the collegiate body, in accordance with what is provided in article 6 of chapter II, title XVI, book I of the Compilation of Resolutions of the Superintendency of Banks and the Banking Board, an appeal for review should be filed; and, if it were a reconsideration appeal, it should have been filed before the same authority from which the challenged administrative act emanated, as provided in article 2 of the chapter, title, book, and compilation ibidem.";

THAT through a document entered into this Superintendency on December 3, 2013, Mr. Antonio Acosta Espinosa, Adjunct President of Banco Pichincha C.A., with the professional sponsorship of Doctor Pablo Cadena Merlo, filed before the Banking Board an appeal for review against the administrative act contained in letter No. JB-2013-2484, of November 20, 2013;

THAT the appeal for review was accepted for processing by Licentiate Pablo Cobo Luna, Secretary of the Banking Board, through letter No. JB-2013-2589, of December 4, 2013;

THAT the appellant requests the Banking Board to revoke the administrative act contained in letter No. JB-2013-2484 of November 20, 2013, through which the Secretary of the Banking Board disposed of the filing of the reconsideration appeal filed against letter IRG-DAYEU-V-R-2013-534 of November 1, 2013; and, consequently, to accept for processing the administrative challenge through which Banco Pichincha requested the Control Body to analyze, review, and consequently, nullify the content of letter No. IRG-DAYEU-V-R-2013-534 aforementioned, through which it was resolved to accept the claim contained in the reconsideration appeal filed at the time by Mrs. Rita Julieta Jima Cabrera, ordering that BANCO PICHINCHA C.A. proceed to restore the sum of ONE HUNDRED FIFTY-ONE AND 00/100 UNITED STATES DOLLARS (US$151.00) debited from savings account No. 2200020735;

THAT article 137 of the General Law of Financial System Institutions, which has an organic character, states:

"ARTICLE 137.- The reconsideration appeal may be filed by the administered party, within a term of eight days from the notification of the challenged act by the competent authority."

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From the administrative decisions or resolutions issued by the Superintendent, an appeal for review may be filed before the Banking Board, within a term of eight days counted from the date of notification of the letter or resolution. In the case of those resolutions that by their content must be published in the Official Register, the term shall be fifteen days counted from their publication. The appeal will be attended to within the twenty days following its presentation and may be raised by any person who considers themselves affected.

From the resolutions issued by the Superintendency, an appeal may be filed before the District Court of Administrative Litigation, in the manner and terms established by Law.

THAT article 6 of Chapter II "Norms for the application of reconsideration and review appeals in topics related to the financial system and the social security system; and, of appeal in private insurance matters, regarding administrative acts of the Superintendency of Banks and Insurance"; Title XVI "Of sanctions and of appeals in administrative proceedings"; Book I "General Norms for the application of the General Law of Financial System Institutions", of the Compilation of Resolutions of the Superintendency of Banks and Insurance and the Banking Board, expresses:

"ARTICLE 6.- From the administrative decisions or resolutions issued by the Superintendent of Banks and Insurance or their delegates, including those that establish a sanction for institutions of the financial system and the social security system, their directors, administrators, officials, employees, or the person who acts on their behalf or representation, who infringed laws or regulations governing their operation, or who contravened instructions issued by the control body, an appeal for review may be filed before the Banking Board, within a term of eight days counted from the date of notification of the letter or resolution.

In the case of monetary sanctions, the appellant must submit attached to the required documentation, a certified copy of the bank deposit receipt of the fine being challenged.";

THAT article 44 of the same Compilation, contemplates among the attributions of the Banking Board the following:

"(...) d. Resolve the administrative review appeals raised before this body;(...)";

THAT through a document, entered into this Superintendency on November 15, 2013, Mr. Antonio Acosta Espinosa, Adjunct President of Banco Pichincha C.A., presented a reconsideration appeal against the administrative act contained in letter No. IRG-DAYEU-V-R-2013-534 of November 1, 2013;

THAT through letter No. JB-2013-2484 of November 20, 2013, Licentiate Pablo Cobo Luna, Secretary of the Banking Board, referring to the

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document received disposed of the filing of the reconsideration appeal as inadmissible as indicated previously;

THAT regarding this, with a document entered into this Superintendency on December 3, 2013, Mr. Antonio Acosta Espinosa, Adjunct President of Banco Pichincha C.A., with the professional sponsorship of Doctor Pablo Cadena Merlo, filed before the Banking Board an appeal for review against the administrative act contained in letter No. JB-2013-2484, of November 20, 2013 in order for it to be REVOKED;

THAT in accordance with what is provided in article 137 of the General Law of Financial System Institutions and article 6 of chapter II "Norms for the application of reconsideration and review appeals in topics related to the financial system and the social security system; and, of appeal in private insurance matters, regarding administrative acts of the Superintendency of Banks and Insurance"; title XVI "Of sanctions and of appeals in administrative proceedings"; book I "General Norms for the application of the General Law of Financial System Institutions", of the Compilation of Resolutions of the Superintendency of Banks and Insurance and the Banking Board. In the present case, the appeal for review presented by Banco Pichincha C.A. and received in this Superintendency on December 3, 2013, with the object of revoking the administrative act contained in letter No. JB-2013-2484 of November 20, 2013, by which the Secretary of the Banking Board disposed of the filing of the reconsideration appeal against letter IRG-DAYEU-V-R-2013-534, was erroneously filed against letter JB-2013-2484 of November 20, 2013, signed by the Secretary of the Banking Board, an official who issued the administrative act, an appeal that is contrary to what is provided in the legal norms cited above, which indicate that the appeal for review will be presented before the Banking Board within a term of eight days counted from the date of notification of the letter or resolution. Therefore, the Actuary of the Banking Board should have rejected the appeal for review as out of order and inadmissible;

THAT article 2 of chapter II "Norms for the application of reconsideration and review appeals in topics related to the financial system and the social security system; and, of appeal in private insurance matters, regarding administrative acts of the Superintendency of Banks and Insurance"; title XVI "Of sanctions and of appeals in administrative proceedings"; book I "General Norms for the application of the General Law of Financial System Institutions", of the Compilation of Resolutions of the Superintendency of Banks and Insurance and the Banking Board, provides:

"ARTICLE 2.- The resolutions and sanctions adopted by the Superintendent of Banks and Insurance or by their delegates may be revoked by the same officials who issued the respective administrative act, at the request of any interested party within a term of eight (8) days of notification.

The administrative act issued to resolve the reconsideration appeal must be motivated.";

THAT in accordance with the foregoing, the reconsideration appeal must be filed before the authority that issued the administrative act, so the reconsideration appeal

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filed by Banco Pichincha C.A. on November 15, 2013, was erroneously presented before the Banking Board regarding letter IRG-DAYEU-V-R-2013-534 of November 1, 2013, so the Secretariat of the Banking Board correctly determined that it is inadmissible and ordered its filing;

THAT the National Legal Intendency, through memorandum INJ-DNJ-SAL-2014-0535 of July 21, 2014, recommended to the Banking Board to reject the claim contained in the appeal for review filed;

AND,

IN exercise of its legal attributions,

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 letter JB-2013-2484 of November 20, 2013, with which the Secretary of the Banking Board ordered the filing of the reconsideration appeal for having been erroneously filed.

NOTIFY.- Given at the Superintendency of Banks, in Quito, Metropolitan District, on June 10, two thousand fifteen.

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

I CERTIFY.- Quito, Metropolitan District, on June 10, two thousand fifteen.

Lcdo. Pablo Cobo Luna SECRETARY OF THE BANKING BOARD

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Banking Board of Ecuador