Banking Board of Ecuador

RESOLUTION No. JB-2015-3490

THE BANKING BOARD

CONSIDERING:

THAT Mrs. Fabiola María Salas Mancero, through a communication entered into the control body on June 26, 2014, filed a complaint against Pacificard S.A., in which she indicated and requested that the Superintendency of Banks: "I have been harmed as I have remained in the Risk Central for 20 years due to a debt that is not mine, for which there is no document, so I request that you, as the Controlling Institution of Banks, request justification from Banco del Pacífico as to why I am in the Risk Central and subsequently eliminate said debt so that I can exercise my rights (sic)";

THAT through Official Letter No. DNAE-SAU-2014-04342 dated July 14, 2014, the full content of the complaint filed against the aforementioned bank was forwarded to it, granting a term of 5 days to present the pertinent explanations and defenses; in response to said requirement, through Official Letter No. DJ-PC-515-2014, received by the control body on July 30, 2014, and Official Letter No. AUD-PC-035-14 dated July 25, 2014, Pacificard S.A. presented the explanations and defenses related to the claim presented by Mrs. Fabiola María Salas Mancero, justifying its actions, mainly as follows:

"(...) Once the account statements were verified, it is demonstrated that on September 30, 1994, the client made her last payment for a value of S/. 1,000,908.00 sucres. By not paying the outstanding amounts, an increase in the obligation in default occurred, leading to the write-off of the account. As of July 24, 2014, the debt amounts to $2,125.27 (two thousand one hundred twenty-five with twenty-seven US cents) (...)".

"In virtue of everything stated, it is concluded that Mrs. Fabiola Salas Mancero made purchases with her Visa Cash credit card and unfortunately ceased to pay, which caused her to default for more than 150 days";

THAT through Official Letter No. DNAE-SAU-2014-05140 dated August 15, 2014, the administrative resolution regarding the complaint presented by Mrs. Fabiola María Salas Mancero was issued, where the National Directorate of User Attention and Education did not accept the claimant's request, which is why the procedure was declared concluded and its filing was ordered;

THAT through a document received by the control body on August 28, 2014, Mrs. Fabiola María Salas Mancero filed a review appeal before the Superintendency of Banks against the administrative act contained in Official Letter No. DNAE-SAU-2014-05140 dated August 15, 2014, entering as an addendum to the appeal the communications of September 17 and November 12, 2014, arguing:

"(...) The received official letter contains ACCOUNT STATEMENTS, how can you attribute a debt to me solely with these documents in which my signature does not appear and which are LEGALLY not an authorized document for collection, nor are they a supporting document proving that I was the person who made purchases with said card."

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It has been (20) TWENTY YEARS since the issuance of the alleged card, where my salary as an employee of a public hospital did not allow me to have a credit limit that exceeds the payment level of a CREDIT CARD.

Therefore, I once again request that your Institution analyze my case as I am being harmed in any current procedures (...).

"(...) I demand an explanation of how a conclusion of this procedure is reached and filing is requested if the Bank has not proven with any document that I was the person who used said CARD, even if they have ACCOUNT STATEMENTS.

This request is to insist on my complaint and once again make it clear that I did not request a CREDIT CARD nor have I signed any contract, therefore I have not made any purchases with it (...)";

THAT through Official Letter No. JB-2014-2400 dated September 5, 2014, the Secretary of the Banking Board accepted the review appeal filed; and, through Official Letter No. JB-2014-2401 of the same date, notified PACIFICARD S.A. ISSUER AND ADMINISTRATOR OF CREDIT CARDS, regarding the acceptance of said appeal;

THAT through Memorandum No. SAL-2014-00303 dated September 25, 2014, the Subdirectorate of Legal Advice of the National Legal Directorate of the National Legal Intendency requested the technical criterion of the National Directorate of User Attention and Education, regarding the grounds of the review appeal filed against the administrative act contained in Official Letter No. DNAE-SAU-2014-05140 dated August 15, 2014;

THAT through Memorandum No. DNAE-SAU-2014-01154 dated October 23, 2014, the Acting Subdirector of User Attention forwarded the required report and ratified Official Letter No. DNAE-SAU-2014-05140 dated August 15, 2014, stating in its core part that:

"It was not evidenced that Pacificard S.A. incurred in incorrect procedures, since Mrs. Fabiola Salas Mancero, according to the account statements, made purchases, which is why she entered default.

It should be noted that the regulation contained in the Compilation of Resolutions of the Superintendency of Banks and Insurance and of the Banking Board, in numeral 13.8 of Chapter V, Title I, Book I, applicable to account statements, expresses that after 15 days have passed from the statement date, it is considered that the Holder is in agreement with its content";

THAT this challenge 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 of September 12, 2014, whose text states that the resolutions contained in the Compilation of Resolutions of the Superintendency of Banks and Insurance and of the Banking Board, and the norms issued by the 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 complaints, appeals, and other administrative procedures that it was handling as of the date of its entry into force, within a term of one hundred eighty days, extendable at the discretion of the Monetary and Financial Policy and Regulation Board;

THAT the Superintendency of Banks, as the competent body, in accordance with articles 1 and 180, letter b) of the General Law of Financial System Institutions, as well as what is provided in article 5 of Chapter IV regarding the "Procedure for the attention of complaints against Financial System Institutions", 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 of the Banking Board, has the function and attribution to ensure the stability, solidity, and correct functioning of institutions subject to its control; to supervise that they comply with the norms that govern them; and, to require that said institutions present and adopt the corresponding corrective measures when necessary; under this context, based on the referred legal and regulatory provisions, it is inferred that the control body has the legal and normative faculty to hear financial user complaints, and in case of determining an incorrect procedure by the entities, to dispose of the restitution of values to them, therefore the administrative acts it issues to resolve them arise from the control and supervision attributions, in which activity, the protection of public interests must be taken into account;

THAT from the documentation sent by the bank, it is appreciated that on October 5, 1993, a Visa Cash Card No. 4551xxxxxxxx4001 was issued in the name of Mrs. Fabiola María Salas Mancero with citizenship ID No. 0601281421. Within the Credit Card System, the account records its migration on March 4, 2003, with the fusion process with Continental Bank;

THAT from the files of Pacificard S.A., it is observed the account statements issued by Visa Cash S.A. from January/94 to October/94, where it is evidenced that the client made purchases mainly cash advances from Bank of Guayaquil and Filanbanco ATMs, which are detailed below:

Date	Establishment	Value in Sucres
14/10/93	Lakatus (installments 4 to 13 /18) for 285,833.33 each	2,858,333.30
11/04/94	Bank of Guayaquil Ambato Branch	200,000.00
13/04/94	Bank of Guayaquil Ambato Branch	200,000.00
28/04/94	Cash Advances	1,000,000.00
04/05/94	Bank of Guayaquil Ambato Branch	200,000.00
09/05/94	Bank of Guayaquil Ambato Branch	50,000.00
11/05/94	Bank of Guayaquil Ambato Branch	30,000.00
13/05/94	Bank of Guayaquil Ambato Branch	200,000.00
17/05/94	Bank of Guayaquil Ambato Branch	20,000.00
23/05/94	Bank of Guayaquil Ambato Branch	10,000.00
27/05/94	Filanbanco ATM	200,000.00

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Banking Board of Ecuador

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Date	Establishment	Value in Sucres
28/05/94	Filanbanco ATM	100,000.00
25/05/94	Credital S.A. (installments 1 to 6/ 18) for 231,667.00	1,390,002.00
03/06/94	Bank of Guayaquil Ambato Branch	200,000.00
07/06/94	Filanbanco ATM	200,000.00
07/06/94	Filanbanco ATM	200,000.00
09/06/94	Filanbanco ATM	200,000.00
18/06/94	Filanbanco ATM	200,000.00
30/06/94	Filanbanco ATM	200,000.00
28/06/94	Filanbanco ATM	200,000.00
27/06/94	Filanbanco ATM	200,000.00
27/06/94	Filanbanco ATM	200,000.00
06/07/94	Filanbanco ATM	200,000.00
06/07/94	Filanbanco ATM	100,000.00
05/07/94	Filanbanco ATM	200,000.00
08/07/94	Filanbanco ATM	200,000.00
12/07/94	Creaciones Charleston	119,000.00
12/07/94	Supermercado Primavera	114,250.00

THAT it is observed that in the statement dated 10/30/94, it is specified that the account was in default "Acct. in Default, Values Due at 120 days, card in bulletin. Last payment notice prior to transfer to judicial collection, immediately referred to the collections department"; and it indicated the total debt as S/. 11,657,256.00 (Eleven million six hundred fifty-seven thousand two hundred fifty-six sucres);

THAT it is evidenced that Mrs. Fabiola María Salas Mancero made her last payment on 09/30/94 for S/. 1,000,908.00 sucres, which is not consistent with what was stated by the claimant that at no time did she request or receive a credit card; however, payments made by herself are registered, and she incurred in default by not paying the outstanding amounts, leading to the write-off of the account. As of July 24, 2014, the debt amounts to USD 2,125.27:

Visa Card — FABIOLA SALAS MANCERO (IN DOLLARS)
Capital	$ 1,089.80
Interest August 2008 — June 2014	$ 898.66
Transfer to legal, May 2014	$ 130.77
Interest July 2014	$ 6.04
Total	$ 2,125.27

THAT it is worth mentioning what article 13, numeral 13.8 of Chapter V, Title I, Book I of the Compilation of Resolutions of the Superintendency of Banks and Insurance and of the Banking Board applicable to account statements provides:

"ARTICLE 13.- The issuing or administering companies of credit cards and financial institutions, for the issuance of credit cards, payment, affinity, closed system affinity and closed system, of general or restricted circulation and

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Banking Board of Ecuador

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for the granting of the credit line, will receive the pertinent application from the client and, prior to the celebration of the contract, will carry out the necessary investigations, in order to establish the solvency of the applicant and the suitability of the guarantees, if they exist.

The contract to be celebrated between the institutions authorized for the issuance or administration of credit cards, payment, affinity, closed system affinity and closed system and the cardholders, will be based on the contract model that the Superintendency of Banks and Insurance determines, which will contain as a minimum the following:

13.8 Term within which the cardholder must manifest disagreement with the balances contained in the account statement, not less than fifteen (15) days; (...)";

THAT according to the points mentioned, it is evidenced that Mrs. Fabiola María Salas Mancero did not present disagreement with the account statements delivered, who made payments from her card;

THAT it was not evidenced that Pacificard S.A. incurred in incorrect procedures, since the claimant, according to the account statements, made purchases with her credit card and did not fulfill her obligation to pay said purchases, which is why she incurred in default;

THAT it is necessary to cite article 5, of Chapter IV "Procedure for the attention of complaints against Financial System Institutions", 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 of the Banking Board, which empowers the control body to dispose of the return of the values claimed by the controlled institutions, in exercise of the functions and attributions contemplated in letters b) and o) of article 180 of the General Law of Financial System Institutions, granting the legal representative of the entity a term that cannot exceed fifteen (15) days from the notification to send, under the legal warnings, the proof of compliance with the order issued;

THAT in the particular case as indicated, the financial entity has not incurred in any incorrect procedure and there is no legal basis in the argument presented by the appellant; in virtue of it being evidenced in the documentation attached to the file that she was making payments on the credit card normally until September 30, 1994, from which date she ceased to pay the purchases made, lacking validity what is stated that "at no time was a credit card requested nor have I received a credit card";

THAT the National Legal Intendency, through memorandum INJ-DNJ-SAL-2015-0259 dated March 27, 2015, recommended to the Banking Board to reject the claim contained in

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Banking Board of Ecuador

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the appeal filed by Mrs. Fabiola María Salas Mancero; and,

IN exercise of its legal attributions,

RESOLVES:

SINGLE ARTICLE.- REJECT the claim contained in the review appeal presented by Mrs. Fabiola María Salas Mancero; and, consequently CONFIRM the administrative act contained in Official Letter No. DNAE-SAU-2014-05140 dated August 15, 2014, through which the National Directorate of User Attention and Education concluded that: "(...) it is not possible to favorably attend the claimant's request, which is why the present procedure is declared concluded and the filing of the case is ordered".

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

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

I CERTIFY.- Quito, Metropolitan District, on the seventeenth of June of the two thousand fifteen.
Lcdo. Pablo Cobo Luna
SECRETARY OF THE BANKING BOARD