Banking Board of Ecuador

RESOLUTION No. JB-2015-3329

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 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 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;

THAT from the aforementioned provisions, it is established that the Banking Board is competent to resolve the present review appeal;

THAT Dr. Holger José Suárez Esparza, as the holder of the Visa Prestige - LanPass card, issued by Banco Pichincha C.A., filed on April 3, 2014, at the Superintendence of Banks and Insurance, a claim in which he refers that in the statement of account for the month of March 2013, two consumptions abroad not made by him were recorded, amounting to USD 480; that the bank, having denied his request, he appealed so that through the Contraventions Unit the financial institution would respond; therefore, he requests the control body to order the controlled entity to proceed to reimburse these values to his account, plus the respective interest;

THAT by letter No. DNAE-SAU-2014-02383, of April 17, 2014, the Deputy Director of User Attention transferred the content of the aforementioned claim to Banco Pichincha C.A. so that it present explanations and defenses regarding the claimed fact; at the same time, it communicated this to Dr. Holger José Suárez Esparza, by letter No. DNAE-SAU-2014-02382, of the same date;

THAT by letter No. BP-ACEC-2014-0449 of May 21, 2014, Banco Pichincha C.A. sent the information requested regarding the client's claim. It should be noted that in point number -7- it noted: "Once the respective verifications have been made in our systems, it is clear that Mr. HOLGUER [sic] JOSÉ SUAREZ ESPARZA has not filed claim(s) directly with our Institution regarding the consumptions that are the subject of the claim";

THAT by letter No. DNAE-SAU-2014-03787, of June 17, 2014, the Acting National Deputy Director of User Attention concluded: "this control entity cannot attend to your request in the terms stated in your communication of April 3, 2014, for unrecognized consumptions, as it is currently being resolved by the Judicial Function, within case number 2013-2398 which is pending before the Provincial Court of Justice of Loja, in the First Specialized Contraventions Judicial Unit of the Canton of Loja. In light of the above, this control body concludes its claim in the terms set forth in this letter, consequently ordering its filing";

THAT by document received at the Superintendence of Banks and Insurance on June 30, 2014, Dr. Holger José Suárez Esparza, with the professional sponsorship of Dr. Víctor Ortega Silva, filed a review appeal against letter No. DNAE-SAU-2014-03787, of June 17, 2014;

The appellant argued: that he filed a claim at the Banco Pichincha Branch in Loja, "where he was never attended to, neither in writing nor verbally, so I had to resort to the Judicial Unit of Contraventions and after several attempts I managed to receive a letter and what I received as [sic] a response was that my claim was time-barred."; that he filed a complaint with the Superintendence of Banks, to which he attached the original statement of account of the respective VISA card and copies of the "PRE-TRIAL" procedure; that he received letter No. DNAE-SAU-2014-03787, of June 17, 2014, in which he was notified with a resolution that he considers unjust and illegal, and in which he is informed that the claim could not be attended to because there is a judicial claim filed by him and to be resolved in the First Specialized Contraventions Judicial Unit of the Canton of Loja, which is not true; that he went to said Unit, solely and exclusively so that the letter of claim would be received at the Banco Pichincha Branch in Loja, as it was never intended to be received; that he clarifies that it was merely a "PRE-TRIAL HEARING"; so that as soon as the notification of what was resolved was carried out, the Judge proceeded to file it, so there is no judicial procedure pending to be resolved; that he insists on ordering the financial institution to proceed to reimburse the values "improperly" charged;

THAT by letter No. JB-2014-1755, of July 8, 2014, the Secretary of the Banking Board, communicated to the appellant that the aforementioned review appeal had been accepted for processing and by letter JB-2014-1756 of the same date, communicated this to the legal representative of Banco Pichincha C.A.;

THAT by memorandum No. JB-2014-602, of July 21, 2014, the Secretary of the Banking Board, transferred to the National Legal Intendancy, in extension of memorandum No. JB-2014-555, of July 8, 2014, the written statement of Mr. Holger José Suárez Esparza, in which he attaches the original statement of the Visa Banco Pichincha card, documentation related to the appeal filed;

THAT article 168, numerals 1 and 3 of the Constitution of the Republic of Ecuador, provides that the bodies of the Judicial Function enjoy internal and external independence; and, by virtue of jurisdictional unity, no authority from the other branches of the State may perform functions of ordinary administration of justice, without prejudice to the jurisdictional powers recognized by the Constitution;

THAT in harmony with the aforementioned constitutional provision, article 8 of the Organic Code of the Judicial Function determines that no branch, body, or authority of the State may interfere in the exercise of the duties and attributes of the Judicial Function;

THAT articles 1 and 180, letters b) and o) of the General Law of Institutions of the Financial System, in force at the date of the claim, determine that the Superintendence of Banks and Insurance, as the competent authority, has the function and attribute to ensure the stability, solidity, and correct functioning of institutions subject to its control; to supervise that they comply with the norms governing their functioning; and, to require that said institutions present and adopt the corresponding corrective measures when necessary;

THAT the Banking Board, in attention to the principle of independence of the Judicial Function, integrated into chapter IV, of title XX, of book I, of the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, the procedure for the attention of claims against institutions of the financial system, always attentive to the protection of the public's interests as mandated by law, whose article 6 establishes that if it is documented that the specific matter motivating the claim is submitted to the knowledge and resolution of the ordinary justice at the instance of the claimant, user of the financial system, the Superintendence of Banks and Insurance will abstain from continuing to process it;

THAT with respect to the appellant's argument in which he refers that due to the lack of attention by Banco Pichincha C.A. he had to resort to the Judicial Unit of Contraventions so that his claim letter would be received; it is necessary to point out that within the file there is letter No. BP-ACE-2014-0449, of May 21, 2014, from which it is clear that Dr. Holger José Suárez Esparza has not filed a claim directly with the entity regarding the consumptions that are the subject of the claim, a controversy that has been remedied by the efforts that in one way or another have already come to the knowledge of the aforementioned financial institution;

THAT within the review appeal, the claimant attached complementary information regarding a procedure carried out at the First Specialized Contraventions Judicial Unit of the Canton of Loja – Provincial Court of Justice of Loja, in order for Banco Pichincha C.A. to respond to his request which he attached to his petition;

THAT the appellant argued that the resolution contained in letter No. DNAE-SAU-2014-03787, of June 17, 2014, he considers unjust and illegal, and clarified that it was merely a "PRE-TRIAL HEARING"; in order for Banco Pichincha C.A. to receive the claim letter; in this regard, on page ninety-eight, there is documentation certified by the First Specialized Contraventions Judicial Unit of the Canton of Loja, corresponding to the file of "Contravention No. 2398-2013", "Pre-Trial Hearings", "start December 3, 2013, to March 27, 2014", "Complainant: Holger José Suárez Esparza", which evidences, indeed, that it is a pre-trial hearing requested by the claimant before said unit;

THAT on page sixty-five, verso, the Secretary (E), of the Provincial Court of Justice of Loja, First Specialized Contraventions Judicial Unit of the Canton of Loja, stated the following "NOTE: I hereby note that today, the present file No. 2013-2398, is sent to the archive of the Unit in compliance with what is established in the order of March 27, 2014 at 14:34; in (33) thirty-three pages.- Particular of which I leave a record for the corresponding purposes.- Loja, twenty-eight of March of two thousand fourteen.- THE ACTING SECRETARY.";

THAT therefore, the appellant's argument is valid that in the present case there is no judicial procedure pending to be resolved in the ordinary justice; consequently, the requirement established in article 6, chapter IV, of title XX, of book I, of the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board is not configured, in virtue of this, it is recommended to leave without effect the appealed letter, in order for the National Directorate of Attention and User Education to proceed to the analysis of the claim according to the pertinent regulations;

THAT the National Legal Intendancy, by memorandum INJ-DNJ-SAL-2015-0042 of January 21, 2015, recommended to the Banking Board to accept the claim contained in the review appeal filed; and,

IN exercise of its legal attributes,

RESOLVES:

SINGLE ARTICLE.- ACCEPT the claim contained in the review appeal filed by Mr. Holger José Suárez Esparza; consequently, LEAVE WITHOUT EFFECT letter No. DNAE-SAU-2014-03787, of June 17, 2014; and, ORDER the National Directorate of Attention and User Education, to proceed to the analysis of the claim presented by Mr. Holger José Suárez Esparza, against Banco Pichincha C.A. and issue the corresponding resolution, to which effect, it must return the present file to said administrative unit.

COMMUNICATE.- Given at the Superintendence of Banks, in Quito, Metropolitan District, on April 1, two thousand fifteen.

Econ. Rodrigo Landeta Parra
GENERAL INTENDENT, S
PRESIDENT OF THE BANKING BOARD, E

I CERTIFY.- Quito, Metropolitan District, on April 1, two thousand fifteen.

Lcdo. Pablo Cobo Luna
SECRETARY OF THE BANKING BOARD