Banking Board of Ecuador

RESOLUTION NO. JB-2015-3366

THE BANKING BOARD

CONSIDERING:

THAT this appeal is resolved in accordance with the Third Transitional Provision of the Organic Monetary and Financial Code, published in the Official Register Supplement No. 332 of September 12, 2014, which provides that the Banking Board will continue to act until it resolves all claims, appeals, and other administrative procedures it was handling as of 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 the First Transitional Provision of the same legal body establishes that 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 January 21, 2014, Mrs. Marianela Rodríguez Palma requested protection from the Superintendent of Banks against the allegedly disproportionate collection action of Diners Club del Ecuador S.A., which has been executed by the BANGARA consortium for a debt from 2008 totaling USD 3,010.00, from which she resumed payments starting in March 2013, for a total value of USD 1,410.00, despite the entity communicating to her that the debt amounts to USD 9,000.00 in late fees, which she considers a "robbery";

THAT in the letter of December 18, 2013, sent to the Presidency of the Republic, the claimant states she was a victim of a robbery at her pharmacy on January 31, 2005, which led to serious economic setbacks until the expiration of the DINERS credit card, and that she was able to make her payments until 2008 with a debt amounting to USD 3,000.00, for which she requested help to stop a supposed "extortion" and liquidate the debt at legal values, as she had been informed by the BANGARA Consortium that the debt amounts to USD 9,000.00;

THAT prior to the analysis of the explanation and documentation sent by the bank for the study of the case, through Official Letter No. DNAE-SAU-2014-03212 of May 23, 2014, the National Directorate of User Attention and Education denied the claim presented by Mrs. Marianela Rodríguez Palma, on the grounds that for 66 months the claimant had not made any payment toward her debt; that the report also states that an unpaid credit generates late interest in accordance with articles 1575 and 1607 of the Civil Code and the applicable regulations of Chapter VI of the Codification of Regulations of the Central Bank of Ecuador and article 13, numeral 13.4 of Chapter V, Title I, Book I of the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, concluding that the entity has not incurred incorrect procedures in the determination of the values owed for the use of the credit card, thus denying the claim of Mrs. Rodríguez Palma;

THAT on June 3, 2013, Mrs. Rodríguez Palma presented a document before the Regional Intendancy of Guayaquil in which she rejected and challenged the response to her

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claim; that she also states that she was the one who approached the entity after six years to resume payment of the debt; and that the payments from 2013 to 2014 total USD 1,750.00 and not USD 1,500, so she alleges that the numbers in the settlement are not real, since the company has not made any management as it has been she who has gone to make the payments;

THAT in communication of June 3, 2014 and its addendum presented on June 23, 2014, Mrs. Marianela del Rocío Rodríguez Palma filed an appeal for review before the Banking Board against the administrative act contained in Official Letter No. DNAE-SAU-2014-03212 of May 23, 2014;

THAT Mrs. Rodríguez Palma bases her appeal on the fact that the Superintendence of Banks indicated she owed Diners Club USD 3,100.00; that she communicated with the entity and agreed on a payment method, which she has been paying the dividends indicated, having paid up to that date the sum of USD 2,500.00, but that despite this, they want to charge her USD 9,000.00 through the company BANGARA S.A.; and in the fact that said company has recognized that she has been paying the dividends, for which she asks that her right as a financial user be respected and the real values to be paid be liquidated;

THAT the grounds presented by the appellant are limited to seeking protection from the control body regarding the liquidation of her debt amounting to USD 9,000.00 in late interest, for which she requests that her user rights be respected and Diners Club del Ecuador S.A. be ordered to charge her the real values as of the date, which would be the sum of USD 600.00, for which she requests a liquidation of the values she owes and that she not be prejudiced;

THAT in accordance with the second paragraph of article 1, chapter V, book I of the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, the "credit card" is the document issued by a financial institution or financial services institution authorized by the Superintendence of Banks, which allows its holder or user to dispose of a credit line granted by the issuer, acquire goods or services in affiliated establishments; that therefore it is a product that is freely acquired by financial users based on the acceptance of contracts that adjust to the conditions determined by the control body and other conditions freely agreed upon by the parties; that it corresponds to the user to inform themselves about the product as required by article 5 of the Organic Law for the Defense of the Consumer and the principle of rational and responsible use by the financial user, established in article 20 of the Code of Rights of the Financial User, of Chapter III, Book I of the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board;

THAT according to the current regulations on credit cards, the contract to be entered into between the institutions authorized for the issuance or administration of credit cards and cardholders, will be based on the contract model that the Superintendence determines, which contains as a minimum, among other aspects, the definition and explanation of all costs, expenses, fees, charges, and other remuneration inherent to the service, specifying the calculation methodology

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individual and the base on which interest is calculated, which will be calculated on the average monthly balance of the use of the credit line in accordance with the law; that therefore, the contracting of a credit card subjects the purchaser of the product to the current legal and regulatory norms on the date the service was contracted, and to modifications of that norm that occur over time;

THAT according to article 1567 of the Civil Code, the debtor is in default, among other aspects, when he has not fulfilled the obligation within the stipulated term, unless the law, in special cases, requires that the debtor be required to constitute him in default;

THAT with respect to the values for default, the obligations generated by the use of the credit card are equally subject to the general norms of the Civil Code; that article 1611 of the Civil Code determines that if principal and interest are owed, as in the present case, the payment is imputed first to interest, unless the creditor expressly admits that it be imputed to the principal; and that furthermore, article 1575 of the Civil Code establishes the rules for payment of compensation for damages due to default in obligations to pay money, while article 1607 of the same legal body states that the payment of the debt includes the payment of interest and indemnifications owed, and that the debtor cannot oblige the creditor to receive in parts what is owed to him, except in the case of contrary agreement;

THAT the Subdirectorate of User Attention mentions that at no time has it provided the appellant with the liquidation of the debt for the value of USD 3,100.00; that the liquidation to which the appellant refers does not appear in the file either; and that with respect to the historical balance that the appellant mentions not having received, it must be indicated that in the official letter subject of the appeal, the liquidation of the obligations of Mrs. Rodríguez is contained, so she was indeed aware of said information;

THAT the Directorate of User Attention and Education mentions that the payments from 2013 to 2014 that the appellant says she has made total USD 1,580.00; that during the processing of the claim, the interested party has not documented that she has made payments of USD 1,750.00; and that however, in the file is the liquidation of obligations provided by Diners Club where the value of USD 1,580.00 is reflected;

THAT it is not observed that the financial entity has incurred incorrect procedures by the fact of having entrusted a third party, the company BANGARA S.A., with the extrajudicial collection management regarding the debt held by the claimant, without prejudice to which this body is not authorized to recognize the amount of those collection expenses that would have been incurred, nor in the method of calculation of the principal debt, that is, the balances of principal, interest, and payments, as this is a matter that corresponds to be resolved by the judicial organs in accordance with the pertinent procedural rules for the proof of obligations and their fulfillment;

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THAT the National Legal Intendancy, through memorandum INJ-DNJ-SAL-2014-1000 of December 12, 2014, recommended to the Banking Board to reject the claim contained in the appeal filed by Mrs. Marianela Rodríguez Palma; and,

IN exercise of its legal attributes;

RESOLVES:

SINGLE ARTICLE.- REJECT the appeal for review filed by Mrs. Marianela Rodríguez Palma; and, consequently, CONFIRM the administrative act contained in Official Letter No. DNAE-SAU-2014-03212 of May 23, 2014, leaving it clear that the Banking Board does not rule on the existence, amount, principal and interest balances, and payments, both of the principal debt and of the collection expenses that the financial entity alleges to have incurred, the verification and proof of their extinction being a matter to be resolved by the judicial organs.

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

Econ. Rodrigo Lendeta 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.

Lcdo. Pablo Cobo Luna SECRETARY OF THE BANKING BOARD