Resolution JB-2015-3434 of the Banking Board of Ecuador

Banking Board of Ecuador

RESOLUTION No. JB-2015-3434

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 recorded in the Codification of Resolutions of the Superintendency of Banks and Insurance and the Banking Board, and the norms issued by control bodies, will maintain their validity in all that does 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 validity 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;

THAT through Resolution No. 054-2015-F, published in the Supplement of the Official Register No. 467, on March 26, 2015, the Monetary and Financial Policy and Regulation Board extended by one hundred and eighty (180) additional days the period for the Banking Board to continue acting and resolve all claims, appeals, and other administrative procedures within its competence;

THAT through communication received at the Superintendency of Banks and Insurance on January 9, 2014, engineer Ligia Maricela Niama Rivera, filed an administrative claim against Banco de Guayaquil S.A., and requested that Banco de Guayaquil S.A. be ordered to respond for damages and losses incurred at the time of its settlement, since for a pending payment value, she was reported in the Risk Central;

THAT through Official Letter No. DNAE-SAU-2014-01948, of March 28, 2014, the User Attention Subdirectorate, after analyzing the defenses presented by Banco de Guayaquil S.A. through Official Letter No. UAC-SBS-2014-131, determined that according to the pertinent constitutional and legal provisions, the Superintendency of Banks and Insurance does not have competence to attend the claim presented, since the controversy is based on an employment contract with the referred financial institution, therefore; for which, it recommends that the request be directed to a Labor Court, so that it may know and resolve what corresponds in law;

THAT through communication entered in the Superintendency of Banks and Insurance on April 14, 2014, engineer Ligia Maricela Niama Rivera, filed an appeal for review against the content of Official Letter No. DNAE-SAU-2014-01948, of March 28, 2014. Through Official Letter No. JB-2014-1285, of May 21, 2014, the Secretary of the Banking Board accepted the mentioned appeal for processing;

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Banking Board of Ecuador

Resolution JB-2015-3434 Page No. 2

THAT the appellant bases the appeal on the following arguments:

• That her claim is not of a labor nature, but a matter inherent to a credit that was granted by Banco de Guayaquil S.A. when she was an employee of the same;
• That the settlement act states that there is a debt with Banco de Guayaquil S.A., which was canceled with the retirement funds she held at said entity;
• That for the pending balance of payment, Banco de Guayaquil S.A. reported her and it is recorded in the Risk Central with classification E;
• That the content of Official Letter No. DNAE-SAU-2014-01948, of March 28, 2014, be canceled and its elimination from the Risk Central registry be ordered, since it has caused her serious economic, moral, and labor damage;
• That in view of the aforementioned background, she appeals to this control body so that Banco de Guayaquil S.A. responds for the damages and losses caused;

THAT article 213 of the Constitution of the Republic establishes that superintendencies are technical bodies for surveillance, auditing, intervention, and control of economic, social, and environmental activities, and of the services provided by public and private entities, with the purpose that these activities and services are subject to the legal framework and attend to the general interest;

THAT regarding the arguments exposed by the appellant, it is necessary to point out that from the analysis of the file, it is determined that engineer Ligia Maricela Niama Rivera entered to work under a dependent relationship at Banco de Guayaquil S.A. on June 16, 1999, in the capacity of Assistant 2, with a basic monthly salary of USD$199, a situation demonstrated by the settlement act signed before the Provincial Inspector of Labor of Chimborazo, as a consequence of the resignation presented voluntarily by the appellant on January 20, 2005;

THAT on page 31 of the file, the settlement act is recorded which establishes that there was a debt acquired by the appellant with Banco de Guayaquil S.A., which was canceled with the funds from retirement; likewise, from the aforementioned settlement act, the third clause stipulates the following:

"THIRD.- The former employee expresses his agreement with the values liquidated in this act, with which he expresses that the benefits corresponding to him by disposition of labor laws are fully paid; for which he expresses that he has no claim, present or future, against the Former employer, nor against any person who has exercised or exercises functions of direction or representation of said Bank;

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Banking Board of Ecuador

Resolution JB-2015-3434 Page No. 3

Likewise, he expresses that he owes the bank USD$721.32 DOLLARS, a debt that is compensated with the amount established in this settlement; therefore, the former employee maintains a debtor balance in favor of the former employer for the value of USD $ -$571.04 (sic) (Minus five hundred seventy-one dollars and four cents). The former employee declares that he obligates himself to pay said balance to the former employer at the earliest possible time;

That by virtue of the paid values, this document is granted the quality of total and definitive proof of the fulfillment of the obligations of his former employer, with the force of an executed sentence; that it may be acted upon for any eventual claim that is presented before administrative or judicial authorities, with which this diligence ends (...)."

The claim and subsequent appeal presented by engineer Ligia Maricela Niama Rivera in which she requested compensation for damages and losses originated when Banco de Guayaquil categorized her in the Risk Central with an E classification, regarding this, from the review of the file, it is determined that the categorization carried out by Banco de Guayaquil S.A. was due to the non-compliance with the obligation contracted between the parties, a debt that was expressly recognized by the appellant when in the writing with which she appeals, she manifested the following: "(...) The loan that was given to me (sic) was canceled in its entirety, since a value of $12.84 dollars that remained to be canceled was reflected to me and I made a deposit subsequently when I was already in the risk central with classification E, (...)."

THAT as indicated and since the controversy between Banco de Guayaquil S.A. and engineer Ligia Maricela Niama Rivera lies in the fulfillment of a credit obligation, the Superintendency of Banks, as established by article 226 of the Constitution of the Republic and articles 60 and 62 of the Organic Monetary and Financial Code, does not have competence to intervene in the resolution of said matter, since it must be submitted to the judicial sphere, so that the parties comply with what the competent judge resolves;

THAT it is necessary to point out that the claim of engineer Ligia Maricela Niama Rivera to be compensated for the damages and losses caused by Banco de Guayaquil S.A. must be sued in the ordinary jurisdiction given that the Superintendency of Banks is a technical control and surveillance body regarding financial activities and its action cannot interfere with the exclusive competence and attribution of the Judicial Function regarding a fact or act generated between private parties;

THAT it must also be pointed out that on the date when engineer Ligia Maricela Niama Rivera presented the claim before this control body, that is, January 9, 2014, the appellant did not have a bad debt portfolio;

THAT the National Legal Intendency, through memorandum INJ-DNJ-SAL-2015-0364 of April 28, 2015, recommended to the Banking Board to reject the claim contained in the appeal for review filed;

and,

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Banking Board of Ecuador

Resolution JB-2015-3434 Page No. 4

IN exercise of its legal attributions,

RESOLVES:

SINGLE ARTICLE.- REJECT the appeal for review filed by engineer Ligia Maricela Niama Rivera; and, consequently, RATIFY the content of Official Letter No. DNAE-SAU-2014-01948, of March 28, 2014, through which the User Attention Subdirectorate, made known to engineer Ligia Maricela Niama Rivera that after the explanations sent by Banco de Guayaquil S.A. through Official Letter No. UAC-SBS-2014-131, it has been determined that according to the pertinent constitutional and legal provisions, the Superintendency of Banks is not competent to attend the claim presented.

NOTIFY.- Given at the Superintendency of Banks, in Quito, Metropolitan District, on the twenty-seventh of May of two thousand fifteen.

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

I CERTIFY.- Quito, Metropolitan District, on the twenty-seventh of May of two thousand fifteen.

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