Banking Board of Ecuador

RESOLUTION No. JB-2015-3522

THE BANKING BOARD

CONSIDERING:

WHEREAS, by Resolution No. JB-2015-3471 of June 10, 2015, the Banking Board resolved: “REJECT the claim contained in the appeal for review filed by Mr. Antonio Acosta Espinosa, Deputy President of Banco Pichincha C.A.; and, consequently, CONFIRM Office No. JB-2013-2484 of November 20, 2013, by which the Secretary of the Banking Board ordered the filing/archive of the appeal for reconsideration as having been erroneously filed.”, fundamentally based on the following considerations:

“(...)

WHEREAS, this appeal is resolved in accordance with the First Transitional Provision of the Organic Monetary and Financial Code, published in Official Register Second Supplement No. 332 on September 12, 2014, whose text states that resolutions recorded in the Compilation of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, and norms issued by control bodies, will remain in force insofar as they do not conflict with the Organic Monetary and Financial Code, until the Monetary and Financial Policy and Regulation Board decides as appropriate; and it falls within Article 73 of the aforementioned Code, which is why it must be heard and resolved by this control body;

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

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

WHEREAS, by Office No. IDG-DAYEU-RP-2013-004 of January 23, 2013, the filed appeal for reconsideration was qualified and admitted to proceedings;

WHEREAS, by Office No. IRG-DAYEU-V-R-2013-534 of November 1, 2013, the Regional Intendancy of Guayaquil resolved to REVOKE the administrative act contained in Office No. IDG-DAYEU-V-R-2012-104 of December 20, 2012, ordering that BANCO PICHINCHA C.A. proceed to refund the claimant the sum of ONE HUNDRED FIFTY-ONE 00/100 UNITED STATES DOLLARS (US$151.00) debited from savings account No. 2200020735, held by the appellant in said bank, an entity that may recover the aforementioned amount from the bank owning the automated teller machines where the challenged transactions occurred, in accordance with Article 5 of Chapter IV “Procedure for Handling Claims against Financial System Institutions”, Title XX “Of the Superintendence of Banks and Insurance”, Book I “General Norms for Applying the General Law of Financial System Institutions”, of the Compilation of Resolutions of the Superintendence of Banks and Insurance and the Banking Board;

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WHEREAS, by document filed with this control body on November 15, 2013, Banco Pichincha C.A. filed an appeal for reconsideration against the administrative act contained in Office No. IRG-DAYEU-V-R-2013-534 of November 1, 2013, to have it REVOKED;

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

“Regarding the aforementioned document, upon review, the filed appeal is deemed inadmissible; therefore, I have ordered its archiving, as the type of appeal filed does not apply in this case; because, before the collegiate body, pursuant to Article 6 of Chapter II, Title XVI, Book I of the Compilation of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, an appeal for review is appropriate; and, if it were an appeal for reconsideration, it should have been filed before the same authority that issued the challenged administrative act, as provided in Article 2 of the chapter, title, and aforementioned codification.”;

WHEREAS, by document filed with this Superintendence on December 3, 2013, Mr. Antonio Acosta Espinosa, Deputy President of Banco Pichincha C.A., with the professional representation of Dr. Pablo Cadena Merlo, filed before the Banking Board an appeal for review against the administrative act contained in Office No. JB-2013-2484 of November 20, 2013;

WHEREAS, the appeal for review was admitted to proceedings by Mr. Pablo Cobo Luna, Secretary of the Banking Board, via Office No. JB-2013-2589 of December 4, 2013;

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

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

“ARTICLE 137.- The appeal for reconsideration may be filed by the regulated party, within eight days of notification of the challenged act by the competent authority.
From administrative decisions or resolutions issued by the Superintendent, an appeal for review may be filed before the Banking Board within eight days counted from the date of notification of the office or resolution. Regarding those resolutions that by their content must be published in the”

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Official Register, the term shall be fifteen days counted from its publication. The appeal will be processed within twenty days following submission and may be filed by any person who considers themselves affected.
From resolutions issued by the Superintendence, an appeal may be filed before the District Court of Administrative Contentiousness, in the manner and terms established by Law.”;

WHEREAS Article 6 of Chapter II “Norms for the application of appeals for reconsideration and review in topics related to the financial system and social security system; and, of appeal in private insurance matters, regarding administrative acts of the Superintendence of Banks and Insurance”; Title XVI “Of sanctions and 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 Superintendence of Banks and Insurance and the Banking Board, states:

“ARTICLE 6.- From administrative decisions or resolutions issued by the Superintendent of Banks and Insurance or their delegates, including those establishing a sanction for financial system institutions and social security system, their directors, administrators, officials, employees, or the person acting in their name or representation, who violate laws or regulations governing their operation, or contravene instructions issued by the control body, an appeal for review may be filed before the Banking Board within eight days counted from the date of notification of the office or resolution.
Regarding monetary sanctions, the appellant must submit attached to the required documentation in Article 20, a certified copy of the bank deposit receipt for the claimed fine.”;

WHEREAS Article 44 of the same Compilation includes among the powers of the Banking Board the following:

“(...)
d. Resolve administrative appeals for review filed before this body; (...);”

WHEREAS, by document filed with this Superintendence on November 15, 2013, Mr. Antonio Acosta Espinosa, Deputy President of Banco Pichincha C.A., filed an appeal for reconsideration against the administrative act contained in Office No. IRG-DAYEU-V-R-2013-534 of November 1, 2013;

WHEREAS, by Office No. JB-2013-2484 of November 20, 2013, Mr. Pablo Cobo Luna, Secretary of the Banking Board, referring to the received document, ordered the archiving of the appeal for reconsideration as inadmissible, as indicated above;

WHEREAS, regarding this matter, with document filed with this Superintendence on December 3, 2013, Mr. Antonio Acosta Espinosa, Deputy President of Banco Pichincha C.A., with the professional representation of Dr. Pablo Cadena Merlo, filed before the Banking Board an appeal for review against the administrative act contained in Office No. JB-2013-2484 of November 20, 2013, to have it REVOKED;

WHEREAS, in accordance with Article 137 of the General Law of Financial System Institutions and Article 6 of Chapter II “Norms for the application of the”

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appeals for reconsideration and review in topics related to the financial system and social security system; and, of appeal in private insurance matters, regarding administrative acts of the Superintendence of Banks and Insurance”; Title XVI “Of sanctions and 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 Superintendence of Banks and Insurance and the Banking Board. In this case, the appeal for review presented by Banco Pichincha C.A. and received at this Superintendence on December 3, 2013, with the objective to revoke the administrative act contained in Office