Banking Board of Ecuador

RESOLUTION No. JB-2015-3353

THE BANKING BOARD

CONSIDERING:

THAT on January 30, 2013, Ms. Stefania Cristina Chiarello Ortega filed an administrative complaint against Banco Promerica S.A., stating: "...there was money in my checking account, the bank protested check #149, for the value of $148.00, which was drawn in favor of Iturralde S.A. ..."; this complaint was brought to the attention of the aforementioned bank via Official Letter No. IDG-DAYEU-ISFP-REQ-2013-186;

THAT BANCO PROMERICA C.A. attended to Official Letter No. IDG-DAYEU-ISFP-REQ-2013-186, through communication received by this Superintendency on March 13, 2013, in which, after providing an exposition of the facts related to the error in the system of the mentioned institution, it states the following:

"(...) Regarding the alleged damage caused by the protest of Check No. 149 for US$148.00, it should be mentioned that the protest was carried out on December 11, that is, 33 days after the date on which we blocked the funds, a fact known by the complainant, not only because we informed her verbally, but because she could verify it several times through the different queries she made via our Web page, on the following dates: November 15 and 20, December 11 (date of the protest), and 8 more queries from the same month which it is not necessary to detail; the complainant acknowledges that she had knowledge of the process when in the same complaint letter she states literally: 'the balance we maintained in the checking account appeared as accounting balance and no longer as availability.' Therefore, the client drew the check knowing that there was no availability of funds in her account, for which reason the Bank acted correctly and legally in protesting it (...)".

THAT through Official Letter No. IRG-DAYEU-V-R-2013-526 of October 30, 2013, notified on November 7 of the same year, the Regional Intendancy of Guayaquil accepted the complaint presented by Ms. Stefania Cristina Chiarello Ortega against Banco Promerica S.A., and resolved: "ORDER BANCO PROMERICA C.A. to request the National Directorate of Studies and Information of this control body to remove the 'State of Account Holders' of Ms. STEFANIA CRISTINA CHIARELLO ORTEGA from the protested check(sic) No. 000149 drawn against checking account No. 1050280000, for the reasons expressed in the sixth consideration of this resolution.";

THAT with Official Letter No. BP-DJ-317-2013 dated November 19, 2013, Banco Promerica S.A. filed an Appeal for Reconsideration before the Regional Intendancy of Guayaquil against the administrative act contained in Official Letter No. IRG-DAYEU-V-R-2013-526 of October 30, 2013, which was resolved in favor of the complainant via Official Letter No. IRG-DAYEU-V-R-2014-0111, of February 18, 2014, and notified on February 21, 2014, ratifying the appealed administrative act;

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THAT through Official Letter No. BP-DJ-064-2014 of March 6, 2014, notified to the Superintendency of Banks and Insurance on the 7th of the same month and year, Banco Promerica S.A. filed an Appeal for Review against the administrative act contained in Official Letter No. IRG-DAYEU-V-R-2013-526 of October 30, 2013;

THAT through Official Letter No. JB-2014-543 of March 10, 2014, the Secretary of the Banking Board responded regarding the filing of the Appeal for Review against the Administrative Act contained in Official Letter No. IRG-DAYEU-V-R-2013-526 of October 30, 2013, and determined that it was untimely, since the appealed administrative act was notified on November 7, 2013, as evidenced by the receipt certificate, and the maximum date for challenge corresponded to November 19, 2013;

THAT Banco Promerica S.A. through Official Letter No. BP-DJ-076-2014 received by this Superintendency on March 14, 2014, in attention to Official Letter No. JB-2014-543 of March 10, 2014, provided clarification regarding the Appeal for Review filed, and requested that: "...please process the Appeal for Review raised within the legal term, since the pertinent legal provisions for its filing have been fulfilled.";

THAT with Official Letter No. JB-204-668 of March 26, 2014, the Secretary of the Banking Board, regarding the clarification of the Appeal for Review made by the aforementioned bank; through Official Letter No. BP-DJ-076-2014, stated:

"Regarding this, and since in your Official Letter No. BP-DJ-064-2014 of March 6, 2014, you filed an appeal for review before the Banking Board against the administrative act contained in Official Letter IRG-DAYEU-V-R-2013-526 of October 30, 2013, notified on November 7, 2013, which was untimely, and not against Official Letter IRG-DAYEU-V-R-2014-0111 of February 18, 2014, which you did not appeal in a timely manner, I reiterate what was stated and confirm my Official Letter JB-2014-543 of March 10, 2014, as provided in Article 6, of Chapter 11, Title XVI, Book I of the Codification of Resolutions of the Superintendency of Banks and Insurance and the Banking Board."

THAT through Official Letter No. BP-DJ-107-2014 of April 11, 2014, Dr. Franklin Toledo Guerrero, in his capacity as Judicial Attorney for Mr. Juan Manuel Borrero Viver, Vice President - General Manager of BANCO PROMERICA S.A., filed an Appeal for Reconsideration against the administrative act contained in Official Letter No. JB-204-668 of March 26, 2014, notified on April 1 of the same month and year;

THAT with Official Letter No. JB-204-975 (sic) of April 22, 2014, the Secretary of the Banking Board, regarding the filing of the Appeal for Reconsideration by the mentioned bank; expressed:

"In merit of the above, I ratify Official Letter JB-2014-668 of March 26, 2014, through which, in turn, I confirmed (sic) Official Letter JB-2014-543 of the 10th of the same month and year, since, through Official Letter BP-DJ-064-2014 of March 6, 2014, the administrative act that was the subject of the appeal for review

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before the Banking Board was Official Letter IRG-DAYEU-V-R-2013-526 of October 30, 2013, and not the one that resolves the appeal for reconsideration filed against the aforementioned letter, that is, Official Letter IRG-DAYEU-V-R-2014-0111 of February 18, 2014.";

THAT through Official Letter No. BP-DJ-142-2014 of May 8, 2014, Dr. Franklin Toledo Guerrero, in his capacity as Judicial Attorney for Mr. Juan Manuel Borrero Viver, Vice President - General Manager of BANCO PROMERICA S.A., filed before the Banking Board an appeal for review against the administrative act contained in Official Letter No. JB-204-975 (sic) of April 22, 2014;

THAT the arguments raised by the appellant are limited to the following:

"(...) I request that the Nullity of the Administrative Act be declared, the Administrative Act contained in Official Letter JB-204-975 (sic) of April 22, 2014, which refers to Official Letters No. JB-2014-668 of March 26, 2014, Official Letter No. IRG-DAYEU-V-R-2013-526 of October 30, 2013, and Official Letter IRG-DAYEU-V-R-2014-0111 of February 18, 2014.";

THAT with Official Letter No. JB-2014-1215 of May 14, 2014, the Secretary of the Banking Board communicated to the appellant that the referred appeal for review has been accepted for processing;

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

"ARTICLE 6.- Against administrative decisions or resolutions issued by the Superintendent of Banks and Insurance or his 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 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 pecuniary sanctions, the appellant must attach to the required documentation a certified copy of the bank deposit receipt of the fine being appealed."

THAT Article 44 of the General Law of Institutions of the Financial System, contemplates among the attributions of the Banking Board the following:

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"(...) d. Resolve the appeals for review of an administrative order raised before this body;(...).";

THAT according to what is provided in Article 137 of the General Law of Institutions of the Financial System with an organic character and in Article 6 of Chapter II "Norms for the application of appeals for reconsideration and review in topics related to the financial system and the social security system; and, of appeal in matters of private insurance, regarding administrative acts of the Superintendency of Banks and Insurance"; Title XVI "Of sanctions and of appeals in the administrative venue"; Book I "General Norms for the application of the General Law of Institutions of the Financial System", of the Codification of Resolutions of the Superintendency of Banks and Insurance and the Banking Board; the present appeal for review presented by BANCO PROMERICA S.A. with the objective of revoking the administrative act contained in Official Letter No. JB-204-975 (sic) of April 22, 2014, which refers to Official Letters No. JB-2014-668 of March 26, 2014, Official Letter No. IRG-DAYEU-V-R-2013-526 of October 30, 2013, and Official Letter IRG-DAYEU-V-R-2014-0111 of February 18, 2014, is not admissible due to its nature;

THAT in line with the aforementioned, it is important to emphasize that against decisions of the Banking Board, only an appeal for reconsideration may be filed as provided in Article 1 of Chapter II "Norms for the application of appeals for reconsideration and review in topics related to the financial system and the social security system; and, of appeal in matters of private insurance, regarding administrative acts of the Superintendency of Banks and Insurance"; Title XVI "Of sanctions and of appeals in the administrative venue"; Book I "General Norms for the application of the General Law of Institutions of the Financial System", of the Codification of Resolutions of the Superintendency of Banks and Insurance and the Banking Board, which states:

"ARTICLE 1.- Against resolutions of the Banking Board, an appeal for reconsideration may be filed, within a term of eight (8) days of notification. The filing of this appeal will not suspend the execution of the respective resolution, with the exception of what is indicated in the second paragraph of Article 24 of this chapter.";

THAT to conclude, it is determined that the filing of the appeal for review of Official Letter No. JB-204-975 (sic), of April 22, 2014, signed by the Secretary of the Banking Board is not admissible, since it does not represent an act issued by the collegial body, but rather obeys the fulfillment of functions inherent to the position of General Secretary;

THAT the National Legal Intendancy, through memoranda INJ-DNJ-SAL-2014-0566 and INJ-DNJ-SAL-2015-0098 of July 31, 2014, and February 3, 2015, respectively, recommended to the Banking Board to reject the claim contained in the appeal for review filed; and,

IN exercise of its legal attributions,

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RESOLVES:

SINGLE ARTICLE.- REJECT the claim contained in the appeal for review filed by Dr. Franklin Toledo Guerrero, Judicial Attorney of BANCO PROMERICA S.A.; and, consequently, CONFIRM Official Letter No. JB-204-975 (sic), of April 22, 2014, with which the Secretary of the Banking Board ratified Official Letter JB-2014-668 of March 26, 2014, through which, Official Letter JB-2014-543 of the 10th of the same month and year was confirmed.

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

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

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

Lcdo. Pablo Cobo Luna
SECRETARY OF THE BANKING BOARD