Banking Board of Ecuador

RESOLUTION No. JB-2015-3354

THE BANKING BOARD

CONSIDERING:

THAT through a communication received at the Superintendence of Banks on August 16, 2013, Engineer Daniel Fernando Aguilar Baquerizo, in his own right and on behalf of Mr. Guillermo Christian Aguilar Baquerizo and Mrs. Ivonne Karina Aguilar Baquerizo, filed a complaint against Banco de Machala S.A., seeking that the regulatory body order said financial institution to restore USD $5,637.41. In the complaint, he states that on June 12, 2013, his father, named Guillermo Daniel Aguilar Zeballos, passed away; that his father was the holder of a checking account at Banco de Machala S.A., which allegedly had a balance exceeding USD $5,000.00; that after the death, he approached the institution to inquire about the balance in said checking account, but the staff of the financial institution informed him that on July 5, 2013, the entire balance of checking account No. 110000047 was debited in order to settle a debt that Mr. Guillermo Daniel Aguilar Zeballos held with the bank;

THAT the financial institution, through a communication dated August 5, 2013, informed Engineer Daniel Fernando Aguilar Baquerizo as follows: "...Currently, checking account No. 110000047 in the name of Guillermo Daniel Aguilar Zeballos shows no balance... Additionally, it should be noted that according to the Civil Code, the obligations of the deceased are transmitted to their heirs; therefore, regarding the balance of the account acquired during the lifetime of your father, Mr. Guillermo Daniel Aguilar Zeballos, we request that you contact Mrs. Carola Aguirre, Credit Officer of the Alborada Branch; otherwise, our Institution would have to proceed judicially...";

THAT through a communication received at the Superintendence of Banks on August 16, 2013, Engineer Daniel Fernando Aguilar Baquerizo, with the sponsorship of lawyer Jhonny Valverde Anchundia, filed a complaint against Banco de Machala S.A. in order for said financial institution to restore the sum of USD $5,637.41;

THAT through Official No. D AyEU-ISFP-REQ-2013-1067, dated September 4, 2013, lawyer Federico Sandoval Valverde, Director of User Attention and Education of the Regional Intendancy of Guayaquil, informed Dr. Jorge Andrade Avecillas, General Vice President of Banco de Machala S.A., that Engineer Daniel Aguilar Baquerizo had filed a complaint against the Bank under his representation. In this regard, he requested that he present the pertinent defenses before the regulatory body;

THAT through an unsigned official document, received by the regulatory body on September 30, 2013, Banco de Machala S.A. presented the explanations and defenses related to the complaint in question;

THAT with Official No. SBS-IRG-DAYEU-V-R-2013-523, dated October 29, 2013, lawyer Humberto Moya González, Regional Intendant of Guayaquil, resolved favorably the complaint of Engineer Daniel Fernando Aguilar Baquerizo and ordered the financial institution to restore USD $5,637.41, under the

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following terms: "...order the reimbursement to checking account No. 110000047 of the sum of $ 5,637.41... for the concept of improper debit, values that must be delivered by judicial order, as appropriate in law...";

THAT through a document received at the regulatory body on November 14, 2013, Dr. Jorge Andrade Avecillas, General Vice President of Banco de Machala S.A., filed an appeal for reconsideration against Official No. SBS-IRG-DAYEU-V-R-2013-523, dated October 29, 2013, whose claims were rejected with Official No. IRG-DAYEU-V-R-2014-368, dated May 2, 2014;

THAT through a document received at the Superintendence of Banks and Insurance on May 19, 2014, Dr. Jorge Andrade Avecillas, General Vice President of Banco de Machala S.A., with the professional sponsorship of lawyer Jaime Aguirre Navarrete, filed before the Banking Board an appeal for review against Official No. IRG-DAYEU-V-R-2014-368, dated May 2, 2014;

THAT based on the file formed around this appeal for review, it is evident that Mr. Guillermo Daniel Aguilar Zevallos, holder of the checking account at Banco de Machala S.A. No. 110000047, died on June 12, 2013. It is also evident that on August 9, 2012, Mr. Guillermo Daniel Aguilar Zevallos signed the order promissory note with successive maturities No. 12022911 for a value of USD $20,000.00. The payment was to be made in twelve installments whose successive maturity was scheduled for 30 days, at sight, each one;

THAT Mr. Guillermo Daniel Aguilar Zeballos, on April 17, 2013, signed the order promissory note with successive maturities No. 13021349 for a value of USD $20,000.00. The payment was to be made in twelve installments whose successive maturity was scheduled for 30 days, at sight, each one;

THAT both promissory notes contain the following text:

"In compliance with everything stipulated, I (we) obligate myself (ourselves) with all my (our) present or future assets, own and marital, as well as I (we) authorize the Bank so that, if the case arises, upon the maturity of the obligations derived from this compliance, to credit as partial or total payment to them, any value, money, documents that exist in its possession in my (our) name, of any nature whatsoever."

THAT with reference to Official No. IRG-DAYEU-2014-239, dated August 6, 2014, two "proofs of deposits and cancellations" issued by Banco de Machala S.A. are evidenced, which prove that on July 30, 2013, Mr. Guillermo Daniel Aguilar Zeballos paid the referred Bank the sum of USD $1,803.29 for the obligation contracted with promissory note No. 12022911 (operation No. 12022911); and, that on the same date (July 30, 2013) he paid Banco de Machala S.A. the sum of USD $3,852.95 for the obligation contracted with promissory note No. 13021349 (operation No. 13021349). It must be specified that someone, on behalf of the debtor, paid such obligations;

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THAT as a concluding remark, it must be emphasized that on August 5, 2013, Engineer Enrique Miranda Rodríguez informs that "on July 5 of the present year, the value of USD $5,637.41 was debited from the aforementioned checking account (referring to Mr. Guillermo Daniel Aguilar Zeballos's account) for the purpose of applying it to his debts";

THAT Articles 441 and 488 of the Code of Commerce contemplate:

"Article 441.- A bill of exchange may be drawn:

• On a fixed date;
• At a certain term from date;
• At sight;
• At a certain term from sight.

Bills of exchange may provide for successive maturities.

Those bills that contain different maturities shall be null.

The term of bills of exchange with successive maturities shall conclude upon the fulfillment of each one of them, unless there is an agreement to the contrary regarding the acceleration of maturities. If no such agreement exists and the default of one or more maturities occurs, only those that are in default shall be executed."**

"Article 488.- The provisions relating to the bill of exchange, which refer to:

• Endorsement (Arts. 419 - 428);
• Guarantee (Arts. 438 - 440);
• Maturity (Arts. 441 - 445), without prejudice to what is established in special laws;
• (...)**

are applicable to the promissory note, insofar as they are not incompatible with the nature of this document.

THAT with respect to the payment acceleration clause, SANTIAGO ANDRADE UBIDIA states: "...since the acceleration of payments is an accidental element, which must be expressly established in the instrument, if it has not been established, if the default of one or more maturities occurs, the installments of the bill shall be collected successively..."¹;

THAT in the present case, it is evident that Banco de Machala S.A. on July 5, 2013, declared all obligations held by Mr. Guillermo Daniel Aguilar Zeballos with said financial institution as due, and thereby disposed of the money in the debtor's checking account for a value of

¹ S. ANDRADE UBIDIA, Los títulos valor en el Derecho ecuatoriano, 3rd Edition, Quito: Andrade & Associates Editorial Fund, 2006, p. 432

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USD $5,637.41. It is appreciated that the maturities of the promissory notes were agreed upon for a date after the 5th of each month (the promissory notes were signed on August 9, 2012, and April 17, 2013); furthermore, the debtor justified that on July 30, 2013, he paid Banco de Machala S.A. the installments corresponding to the referred value instruments;

THAT in this context, the debit of July 5, 2013, has no legal basis, because on that date the installments were not due and therefore the debtor was not in default, with the aggravating factor that the value instruments do not show a payment acceleration clause based on which the creditor could claim, at that instant (July 5, 2013), the total obligation. What is appreciated in the promissory notes is the power granted to the Bank to, for example, debit values from the debtor's account on the maturity dates. For the foregoing, it is not conceivable how the debit occurred before maturity. The cited constitutes an incorrect procedure in which the Bank incurred and sufficient reason for the Superintendence of Banks to order the restitution of the debited values;

THAT in application of what is provided in letter o), of Article 180 of the General Law of Financial System Institutions, the Banking Board issued Resolution No. JB-2005-747, dated January 25, 2005, which was reformed with Resolution No. JB-2009-1303, dated May 14, 2009, regarding the procedure for the attention of complaints against financial system institutions, which is contained in Chapter IV, Title XX, Book I of the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, whose Article 5 provides:

"Article 5.- If the result of the analysis carried out by the Superintendence determines the need for the controlled institution to introduce corrective measures that regularize the situation that motivated the complaint, the Superintendent of Banks and Insurance or the official who holds the delegation of said authority, shall issue the corresponding disposition.

If the situation that motivated the complaint referred to in the previous paragraph originated in an incorrect procedure of the controlled institution, which has caused harm to the complainant, the Superintendence of Banks and Insurance may order the return of the claimed values, in exercise of the functions and attributes 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 shall not exceed fifteen (15) days from the notification to send, under the legal warnings, the proof of compliance with the order issued." (Emphasis added);

THAT with respect to the argument of the appellant regarding the delay of the Regional Intendancy of Guayaquil in attending the appeal for reconsideration, it must be said that the Constitutional Tribunal in Process No. 660-99-RS, dated January 11, 2000, states: "...That, consequently, the quality of resolution cannot be given to the fact of administrative silence, all the more so that, in the present case, it is not a simple complaint, request, or petition, as provided in Article

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28 of the Modernization Law, but a denunciation, whose treatment requires a serious analysis of the causes and circumstances surrounding the fact of the denunciation to adopt the resolution most appropriate to reality and the Law, which cannot be supplanted by the mere passage of time...";

THAT the National Legal Intendancy, through memorandum INJ-DNJ-SAL-2015-0111 dated February 4, 2015, recommended to the Banking Board to reject the claim contained in the appeal for review filed; and,

IN exercise of its legal attributes,

RESOLVES:

SINGLE ARTICLE.- REJECT the petition contained in the appeal for review filed; and, consequently, RATIFY Official No. IRG-DAYEU-V-R-2014-368, dated May 2, 2014, with which Official No. SBS-IRG-DAYEU-V-R-2013-523, dated October 29, 2013, was confirmed, in which it was resolved "...order the reimbursement to checking account No. 110000047 of the sum of $ 5,637.41... for the concept of improper debit, values that must be delivered by judicial order, as appropriate in law..."

NOTIFY.- Given at 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