Banking Board of Ecuador

RESOLUTION No. JB-2015-3352

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 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 remain in effect insofar as they do not oppose what is provided 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 that it was hearing as of the date of entry into force 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, which grants this control body competence to hear and resolve the present review appeal;

THAT through a communication entered in the Regional Intendancy of Guayaquil, of this Superintendence of Banks on August 28, 2012, Mr. Christian Eduardo Matamoros Jouvin brought to the knowledge of this control body that in June of the year 2012, a consumption was registered on his Mastercard credit card No. 89230002018807, for the value of USD 180.00, which was never carried out by the user;

THAT through Office No. IDG-DAYEU-ISFP-REQ-2012-0751, of September 6, 2012, on that date, the Acting Intendant of Guayaquil, admitted the claim mentioned in the preceding paragraph to processing, and requested from the referred financial institution substantiated and documented information with the respective physical backups regarding the claim presented and informed the claimant about the particular;

THAT through Office No. BP-ACEC-2012-1126, of December 10, 2012, entered into this control body on the 11th of the same month and year, Mr. Jorge Andrade Merino, Regional Manager of Banco Pichincha C.A., provided a response to the control body's office, and attached several documents related to the claim;

THAT through Office No. IRG-DAYEU-V-R-2013-572, of November 25, 2013, the Regional Intendant of Guayaquil, resolved the claim in question, in the following terms:

"(...) From the explanations and defenses sent by Banco Pichincha C.A., it has been evidenced that the claimant was not attended to in a timely manner by the banking entity, observing the non-compliance with the regulations...

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b) From the documentation sent by the bank and by the user, it is appreciated that the consumption subject of the claim was carried out on May 21, 2012...

(...)

e) In the affiliation contracts that banking institutions sign with commercial establishments, the procedure that must be followed when cardholders present claims for unauthorized consumptions is explained, highlighting the following stipulations from them:

"(...) The Establishment undertakes that in the transactions it carries out, it will require the presence of the Cardholder, an identification document of the latter, and the presentation of the plastic of the Card.

Although the authorization guarantees that the Cardholder has sufficient credit to carry out the Transaction, it does not guarantee the identity of the person who signs the Voucher, leaving the verification of this under the exclusive responsibility of the Establishment.

The Establishment is responsible for keeping the Vouchers that, being issued through electronic captures or POS machines, do not require deposit in the Acquiring Bank, for at least twelve (12) months following the date of their issuance for purposes of eventual claims presented by the Cardholders. (...)"

For the foregoing, it has not been evidenced by Banco Pichincha C.A. that MEGAHOTELES CÍA. LTDA. complied with keeping the charge note for the time stipulated in the affiliation contract signed, which should not have been less than twelve months, by not having sent it or demonstrated that it effectively requested the voucher from the referred establishment.

In merit of the above..., this Office resolves:

1. ACCEPT the claim presented by Mr. CHRISTIAN EDUARDO MATAMOROS JOUVÍN, with citizen ID No. 092240099-9, against the controlled financial institution BANCO PICHINCHA C.A. for the reasons indicated in the seventh paragraph of this office.

2. ORDER the controlled financial institution BANCO PICHINCHA C.A. to proceed to restore to Mr. CHRISTIAN EDUARDO MATAMOROS JOUVÍN, the sum of US$ 180.00 (ONE HUNDRED EIGHTY WITH 00/100 DOLLARS OF THE UNITED STATES OF AMERICA), and send to this Office, within a term of eight days, counted from the receipt of this office, the documentation that accredits the compliance with this resolution

(...)" (sic);

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THAT through a communication of December 9, 2013, entered in the Regional Intendancy of Guayaquil, on the same day, month, and year, the lawyer María Elena Franco San Lucas, Judicial Attorney of Banco Pichincha C.A., filed an appeal for reconsideration against the administrative act contained in Office No. IRG-DAYEU-V-R-2013-572, of November 25, 2013, an appeal that was rejected through Office No. IRG-DAYEU-V-R-2014-296, of April 9, 2014, in which the Regional Intendant of Guayaquil, ratified the appealed administrative act;

THAT through a written document received in the Superintendence of Banks on April 23, 2014, Mr. Antonio Acosta Espinosa, Deputy President of Banco Pichincha C.A., with the professional sponsorship of Dr. Pablo Cadena Merlo, and the lawyer María José Araujo Álvarez, filed a review appeal against Office No. IRG-DAYEU-V-R-2014-296, of April 9, 2014.

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

• That the claim presented by Mr. Christian Matamoros was untimely, since the claimed consumption was carried out on May 21, 2012, and the claim presented to the financial institution was made on August 25 of the same year, so it is surprising that after two months of the consumption being carried out, the claim is presented;

• That Mr. Christian Matamoros asserts that he did not carry out the claimed consumption, to which this assertion is contradictory, since for the telephone acceptance, the client had to indicate to the company the card number, security code, and expiration date, since the client is the sole custodian of his credit card as well as the data contained in it;

• That the bank is not responsible for the consumptions made while the credit card is active and under the custody of the client; even the control body must take into account that the client has not requested the blocking or cancellation of his credit card to date;

• That the conditions referred to in article 5, of chapter IV, on the procedure for the attention of claims against the institutions of the financial system, of the codification of resolutions of the Superintendence of Banks and the Banking Board, have not been met, for the control body to order the return of the claimed values, since the financial institution has demonstrated with reliable proofs and facts that it has no responsibility, so the administrative act must be left without effect.

THAT article 52 of the Constitution of the Republic; article 1, and letters b) and o) of article 180 of the General Law of Institutions of the Financial System, in force at the date of imposition of the claim, provide that the State guarantees to citizens the availability of goods and services of optimal quality and that the Superintendence of Banks, as the competent authority, has the function and

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attribution to watch over the stability, solidity, and correct functioning of the institutions subject to its control; to supervise that they comply with the norms that govern them;

THAT regarding the argument of the appellant in the sense that the claim presented by Mr. Christian Eduardo Matamoros Jouvin was untimely, it is necessary to mention what is established in article 4, of book I, title XIV, chapter III, of the Codification of Resolutions of the Superintendence of Banks and the Banking Board, which establishes:

"ARTICLE 4.- The rights of the user of the financial system contained in this code are irrenounceable as financial services are considered of public order, social interest, and observance throughout the country. Any stipulation to the contrary will be considered null."

THAT from the norm transcribed above, it is inferred that the rights of the financial user are irrenounceable, so the argument of the financial institution in which it exposes the untimeliness has no legal basis, since the services offered by financial institutions, being of public order, the State and this control body must watch over and allow the implementation, development, and compliance of mechanisms that guarantee the community access to services of optimal quality, and that financial users, when a right is violated, can file complaints or claims to demand the restitution of these violated rights;

THAT paragraphs 15.1, 15.2, 15.8, and 15.9, of article 15, of title I, book I, chapter V, of the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, which provides:

"ARTICLE 15.- Institutions authorized to issue or administer credit cards, payment cards, affinity cards, closed-system affinity cards, and closed systems, must sign written contracts with affiliated establishments, in which at least the following clauses will be stipulated:

15.1 Obligation of the affiliated establishment to receive the card as a means of payment;

15.2 Obligation of the establishment to issue the charge note and to verify that the signature and rubric that the cardholder signs is the same that appears on the back of the card and in the identification document, for which the establishment will require the presentation of the identification document and will note the citizen ID number, identity, or passport number on the receipt;

(...)

15.8 Procedure and deadline for the presentation of charge notes by affiliated establishments;

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15.9 Procedure for the cancellation of charge notes by the issuing or administering company of the card;

(...).";

THAT from the legal norm transcribed in the previous paragraph, it follows that, based on what is provided in paragraph 15.2, of article 15, the banking entity is obliged to sign contracts with affiliated establishments, in which the obligation of the establishment to verify the identity of the credit card holder and request the presence of an identification document must be stated;

THAT from the review of the file under study, it follows that Mr. Christian Eduardo Matamoros Jouvin allegedly authorized a debit via telephone in favor of the company Megahoteles Cía. Ltda., to which this National Intendancy has determined that the financial institution did not follow a correct procedure for the collection of the claimed debit, since within the documentation present, the recording of the call made by the user of the financial system, who would have allegedly accepted the charge in favor of the company, is not evidenced. Regarding this, what is stated by the bank does not exempt it from the responsibility of having required the receipt of the respective authorization for said charge, since it is important to mention that the telephone channel prevents the user from properly choosing a service before formalizing it or perfecting the provision of the same through a contract. Additionally, it is not evidenced that the bank has sent the agency contract between the financial entity and Megahoteles Cía. Ltda., with which the procedures for the cancellation of the consumptions in favor of the company could be observed. To strengthen what is stated, it is important to mention what is provided in paragraph 11.1, of article 11, of chapter II, title XIV, book I, of the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, which provides:

"ARTICLE 11.- The user will have the right to access financial products and services, under the following conditions:

11.1 Sign contracts and accept financial services, through electronic or physical means or channels.

Both users and controlled institutions are obliged to keep a record of the signing of said contracts and acceptance of the offered services. Financial system institutions will conserve said contracts for a period of no less than six (6) years, as provided in the third paragraph of article 80 of the General Law of Institutions of the Financial System.

In the case of financial services offered via telephone, these will be accepted by clients through the respective contract or acceptance through electronic means or channels;

(...).";

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THAT for the foregoing, it has been evidenced that Banco Pichincha C.A. is subject to article 5 of chapter IV, title XX, Book I of the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, since the situation that motivated the claim was originated in an incorrect procedure of the controlled institution, and that the Superintendence of Banks, being in charge of supervising and controlling the operations of financial institutions at the national level, must protect the interests of the users of this system, therefore action must be taken as ordered for those effects;

THAT the National Legal Intendancy, through memorandum INJ-DNJ-SAL-2015-270 of March 31, 2015, recommended to the Banking Board to reject the claim contained in the review appeal filed;

AND,

IN exercise of its legal attributions,

RESOLVES:

SINGLE ARTICLE.- REJECT the claim contained in the review appeal presented by Mr. Antonio Acosta Espinosa, Deputy President of Banco Pichincha C.A.; and, consequently CONFIRM the administrative act contained in Office No. IRG-DAYEU-V-R-2014-296, of April 9, 2014, with which Office No. IRG-DAYEU-V-R-2013-572, of November 25, 2013, is ratified, through which the Regional Intendancy of Guayaquil, ordered the restitution in favor of Mr. Christian Eduardo Matamoros Jouvin for the sum of USD $180.00.

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

Econ. Rodrigo Landeta Parra GENERAL INTENDANT, 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