Resolution No. JB-2015-3421 of the Banking Board — SB — EC

Banking Board of Ecuador

RESOLUTION No. JB-2015-3421

THE BANKING BOARD

CONSIDERING:

THAT through Resolution No. JB-2015-3285 of March 4, 2015, the Banking Board resolved: "REVOKE the administrative act contained in letter No. DNAE-SAU-2014-02906 of May 12, 2014, through which the National Director of User Attention and Education favorably attended the complaint filed by Mrs. Daira María Levoyer Jiménez and ordered Banco General Rumiñahui S.A. 'that within eight days it proceed with the return of the values stated in the deposit certificates dated July 18 and 19, 1991, that is, USD$ 80,756.45, and USD$ 80,393.03 US dollars, plus the corresponding interests up to the present date'; and, consequently, ABSTAIN from issuing a pronouncement regarding the complaint, as it is a matter of a jurisdictional nature."

fundamentally for the following considerations:

"(...)

THAT according to the last paragraph of the Second Transitional Provision of the Organic Code of Monetary and Financial Law, published in the Official Registry Second Supplement No. 332, of September 12, 2014, the Banking Board will continue to act until it resolves all appeals it was hearing as of the date of entry into force of this Code, for a period of one hundred and eighty days;

THAT through a communication entered into this control body by Mrs. Daira María Levoyer Jiménez on August 21, 2013, said user filed a complaint against Banco General Rumiñahui S.A., the pertinent part of which states:

"It is the case, Mr. Superintendent of Banks, that I constituted two Time Deposits at Banco General Rumiñahui, one, on June 19, 1991, for the amount of EIGHTY THOUSAND THREE HUNDRED NINETY-THREE DOLLARS AND THREE CENTS OF THE UNITED STATES OF AMERICA, for a term of thirty days, said financial entity issuing the respective Deposit Certificate in my favor; and another, on July 13, 1991, for the amount of EIGHTY THOUSAND SEVEN HUNDRED FIFTY-SIX DOLLARS AND FORTY-FIVE CENTS OF THE UNITED STATES OF AMERICA, for a term of thirty-one days, said financial entity issuing the respective Deposit Certificate in my favor, with an interest rate of 5.50%.

These Investments recorded in the Time Deposit Certificates were automatically renewed over time until the present date, since I never notified (sic) Banco General Rumiñahui of my desire to terminate and end said investment.
On April 3, 2013, I went to Banco General Rumiñahui to collect and cash the two aforementioned deposit certificates, receiving a refusal of payment from Banco General Rumiñahui, as they affirm that they have already paid me both the principal and the interests, a situation that has never happened, since I have not received from Banco General Rumiñahui cash money, bank transaction, a check in my name, or any other document that proves and demonstrates that Banco General Rumiñahui has paid me any value. Additionally, I must indicate, Mr. Superintendent of Banks, and

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I keep in my possession the two Original Deposit Certificates issued by Banco General Rumiñahui, that is, said financial institution could never have made any payment to me without requesting the presentation of the Original Deposit Certificates, documents that certify and guarantee the investments I have made.

(...)

I request (...) that BANCO GENERAL RUMIÑAHUI, legally represented by its General Manager, Alejandro Rivadeneira Jaramillo, for the rights he represents, be ordered to pay the capitals stated in the Deposit Certificates, plus the interests generated up to the present date." (sic);

THAT the then Subdirector of User Attention, through letter No. DNAE-SAU-2013-05212, of September 10, 2013, exempted itself from processing the aforementioned administrative complaint, since, according to said Subdirectorship "it was under the knowledge of the First Civil Court, with case number 2013-0432 (ordinary justice)";

THAT through a communication, dated September 13, 2013, presented to this control body on September 16, 2013, Mrs. Daira María Levoyer Jiménez, through the lawyer Oswaldo P. Trujillo Santillán, in response to letter No. DNAE-SAU-2013-05212 of September 10, 2013, insists that the administrative complaint presented to this control body be accepted for processing, since said case is not in ordinary justice, as the only thing she did before the First Civil Judge was a Judicial Request, which, like the Notarial Request, does not constitute a lawsuit, but its legal figure serves to formally constitute the debtor in default. In response, through letter No. DNAE-SAU2013-06374 of October 31, 2013, signed by the same authority, the content of letter No. DNAE-SAU-2013-05212 of September 10, 2013, was ratified;

THAT through a communication presented to the Superintendency on November 11, 2013, Mrs. Daira María Levoyer Jiménez filed an appeal for review against letter No. DNAE-SAU2013-06374 of October 31, 2013; and, through Resolution No. JB-2014-2782 of February 5, 2014, the Banking Board resolved: "ACCEPT PARTIALLY the appeal for review filed by Mrs. Daira María Levoyer against the administrative act contained in letter No. DNAE-SAU-2013-06374, of October 31, 2013; and, consequently, LEAVE WITHOUT EFFECT its content, ordering the Subdirectorship of User Attention to accept said complaint for processing, comply with due process within which it will request explanations from Banco General Rumiñahui S.A. regarding the payment of the deposit certificates, and to resolve in law what corresponds.";

THAT by virtue of said resolution, the Subdirectorship of User Attention accepted the administrative complaint filed by Mrs. Levoyer Jiménez on August 21, 2013, through letter No. DNAE-SAU-2013-001361 of February 28, 2014; and, consequently, through letter No. DNAE-SAU-2014-01362 of February 28, 2014, it ordered Banco General Rumiñahui S.A. to send defenses and explanations regarding the aforementioned administrative complaint. In response, the banking entity has sent communications received on April 23 and May 7, 2014, respectively;

THAT through letter No. ALQ-O-2014-137 of March 19, 2014, the bank attended the requirement of this control body;

THAT through letter No. DNAU-SAU-2014-2906 of May 12, 2014, the engineer Carolina Pesántez Benítez, National Director of User Attention and Education, resolved the complaint in question, in the following terms:

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"(...)

From the copies in the file, it is clear that Banco General Rumiñahui S.A. issued two deposit certificates in favor of Mrs. Daira María Levoyer Jiménez; on July 18, 1991, a deposit was constituted for a term of 31 days, for a value of USD$ 80,756.45 US dollars, at 5.50%, with "value date" July 19, 1991, and maturity on August 19, 1991; and, on June 19, 1991, a deposit was constituted for a term of 30 days, for a value of USD$ 80,393.03 US dollars, at 5.50%, with "value date" June 19, 1991, and maturity on July 19, 1991. It should be noted that copies of the aforementioned deposit certificates are notarized by Doctor Mariela Pozo Acosta, Thirty-First Notary of the canton of Quito, on May 14, 2013, under the following clause:

"IN ACCORDANCE WITH NUMBER FIVE OF ARTICLE EIGHTEEN OF THE NOTARIAL LAW, I WITNESS THAT THE COPY PRECEDING CONSISTS OF 01 USEFUL PAGE WHICH IS EQUAL TO THE ORIGINAL DOCUMENT PRESENTED BEFORE THE UNDERSIGNED NOTARY.- QUITO ON MAY 14 OF THE YEAR 2013.- A. T.B"

On its part, Banco General Rumiñahui S.A. did not send the documentation required by the Subdirectorship of User Attention through letters Nos. DNAE-SAU-2014-01362, of February 28, 2014, No. DNAE-SAU02272, of April 14, 2014, and No. DNAE-SAU-2014-02757, of April 30, 2014; instead, in response, it sent letters ALQ-O-2014-137, of March 19, 2014, ALQ-O-2014-188, of April 23, 2014, and ALQ-0- 2014-209, of May 6, 2014, which, principally, state that they do not maintain physical documentation regarding the case in question, as approximately 22 or 23 years have passed.

(...)

By virtue of Article 11, mainly, of numbers 5 and 8, of the Constitution of the Republic of Ecuador, this control body pronounces itself in favor of the administrative complaint filed by Mrs. Daira María Levoyer Jiménez, since, by constitutional mandate, public servants must apply the norm and the interpretation that most favors the validity of the constitutional rights of citizens; and, in this sense, the mere presentation of the copies of the deposit certificates owned by Mrs. Daira María Levoyer Jiménez, notarized as a faithful copy of the original, supports the interpretation of this control body, that Banco General Rumiñahui S.A. has not canceled or returned the values deposited in its portfolio by Mrs. Levoyer Jiménez, both in their principal and their interests, especially since said certificates do not bear any stamp or signature from Banco General Rumiñahui S.A. that would commit the sound criterion of this Office to rule against.

Additionally, Banco General Rumiñahui S.A. has not sent documented evidence justifying its assertions of having canceled said certificates, despite mentioning in letter ALQ-0-2014-188, of April 23, 2014, the following: "...we must refer to accounting supports and records, which once reviewed in detail, ratify the information that our institution has delivered on several occasions to Mrs. Levoyer, regarding the fact that said time deposits are canceled...", and even more so when the same banking entity, in the letters sent to this control body, argues that the values claimed were already paid to the claimant, thereby preventing the fulfillment of due process established in Article 76, letter h, above transcribed, of the Constitution of the Republic of Ecuador, although, regarding this, the Bank, in

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letter ALQ-O-2014-209, of May 6, 2014, presented to this control body on May 7, 2014, in its pertinent part, alleges:

"...as you know, legal provisions and current regulations require financial institutions to maintain in their files documentary backups of up to 6 and 10 years, in accordance with the norms we permit ourselves to cite in our communication No. ALQ-0-2014-168 of April 23, established in the Law on Prevention, Detection and Eradication of Money Laundering and Financing of Crimes, Resolution No. JB2012-2146 and the General Law of Institutions of the Financial System."

Nevertheless, in light of what is established in Article 11, number 5, of the Ecuadorian Magna Carta, which by virtue of Article 424, ibid., is the supreme norm of Ecuador, prevailing over any other in the legal order, and in front of the presentation of the copies of the deposit certificates notarized as a faithful copy of the original by Mrs. Levoyer Jiménez, the interpretation that most favors the claimant will be applied, since there is no conclusive evidence to the contrary that refutes what was stated by Mrs. Daira María Levoyer Jiménez. In this sense, this control body considers that Mrs. Daira María Levoyer Jiménez has not collected either the principal or the interests of the deposits made on dates July 18 and 19, 1991, and that Banco General Rumiñahui S.A. is in debt for said values to the claimant.

(...)

Finally, Banco General Rumiñahui S.A., through letter ALQ-0-2014-188, of April 23, 2014, states:

"Additionally, accounting information has shown, as has also been informed to Mrs. Levoyer, that it is not a matter of two deposit certificates, as erroneously mentioned, but of A SINGLE INVESTMENT captured on June 19, 1991, for a capital of..."

In application of Article 11, number 5, of the Constitution of the Republic of Ecuador: it can be evidenced that it is a matter of two deposit certificates that are described in the preceding lines.

For the above, in accordance with Article 5 section I, chapter IV, title XX, book I of the Codification of Resolutions of the Superintendency of Banks and Insurance and the Banking Board, it is resolved to attend favorably the administrative complaint presented to this control body by Mrs. Daira María Levoyer Jiménez on August 21, 2013, and it is ordered to Banco General Rumiñahui S.A. that within eight days it proceed with the return of the values stated in the deposit certificates dated July 18 and 19, 1991, that is, USD$ 80,756.45, and USD$ 80,393.03 US dollars, plus the corresponding interests up to the present date. Likewise, send proof of action to this Office within two days of said resolution.

(...)

THAT through a writing received at the Superintendency on May 28, 2014, the engineer Alejandro Rivadeneira Jaramillo, General Manager of Banco General Rumiñahui S.A., with the professional sponsorship of Doctor Fernando Cabrera Hidalgo, filed an appeal for review against letter No. DNAU-SAU-2014-2906 of May 12, 2014;

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

That "Mrs. Daira María Levoyer Jiménez bases her complaint on a supposed lack of payment of two time deposits dated June 19 and July 18, 1991, for USD $ 80,393.03 and 80,756.45 respectively; the National Director of Education and User Attention in her Letter DNAE-SAU-2014-02906 resolves the payment of the same, despite the information and defense sent by the Bank explicitly stating that it is not a matter of two deposit certificates but of A SINGLE INVESTMENT captured on June 19, 1991, for a capital of USD $ 80,393.03 with an interest rate of 5.50%, for a 30-day term for the same capital plus the interests generated in that period, with value date July 19, 1991(...)
That "the investment of USD $ 80,393.03 with a rate of 5.5% for a 30-day term maturing on July 19, 1991, renewed for a 31-day term for the same capital plus the interests generated in that period with value date July 19, 1991, according to what the historical accounting information gathered by the Bank evidences, continued to be renewed monthly and successively until April of the year 1992 and finally, it was canceled in May 1992 (...)
That "As stated in the detailed information by the Bank through Letters ALQ-O-2014-188 and ALQ-O-2014-209 sent in response to Letters DNAE-SAU-2014-02272 and DNAE-SAU-2014-02757 respectively, these are operations that the Bank would have captured 23 years ago and canceled 22 years ago, so physical documentation of them is no longer maintained (...)
That "The resolution of the National Director of Education and User Attention, to instruct the payment of the claimed certificates, is based solely and exclusively on the presentation of copies of the certificates (...)
That "the certificates are paid, such is the case that accounting has verified and the original certificates are not in the possession of the claimant.";

THAT with letter No. JB-2014-1393 of May 29, 2014, the Secretary of the Banking Board accepted the aforementioned appeal for review for processing;

THAT the Constitution of the Republic of Ecuador, in Title II, Chapter I, on the "Principles of application of rights", Article 11, numbers 3, 4, 5, 6, 8, and 9, establishes that:

"Art. 11.- The exercise of rights shall be governed by the following principles:

(...)

The rights and guarantees established in the Constitution and in international human rights instruments shall be directly and immediately applicable by and before any public servant, administrative or judicial, ex officio or at the request of a party.

For the exercise of constitutional rights and guarantees, conditions or requirements not established in the Constitution or the law shall not be required.

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Rights shall be fully justiciable. Lack of legal norm cannot be alleged to justify their violation or disregard, to dismiss the action for these facts, nor to deny their recognition.

No legal norm may restrict the content of rights or constitutional guarantees.
In matters of constitutional rights and guarantees, public servants, administrative or judicial, must apply the norm and the interpretation that most favor their effective validity.
All principles and rights are inalienable, irrenounceable, indivisible, interdependent, and of equal hierarchy.

(...)

The content of rights will be developed progressively through norms, jurisprudence, and public policies. The State will generate and guarantee the necessary conditions for their full recognition and exercise.

Any action or omission of a regressive nature that unjustifiably diminishes, undermines, or nullifies the exercise of rights shall be unconstitutional.

The highest duty of the State consists of respecting and making respected the rights guaranteed in the Constitution.";

THAT in the present case, the main support for the application of the transcribed constitutional norm that resulted in the payment order issued by the control body in the appealed administrative act, is that two copies certified at the Thirty-First Notary of the canton of Quito of the original titles are in the file, whose reason states:

"REASON.- IN ACCORDANCE WITH NUMBER FIVE OF ARTICLE EIGHTEEN OF THE NOTARIAL LAW, I WITNESS THAT THE COPY(IES) PRECEDING CONSIST(S) OF ONE USEFUL PAGE(S) WHICH IS (ARE) EQUAL(S) TO THE DOCUMENT PRESENTED BEFORE THE THIRTY-FIRST NOTARY OF THE CANTON OF QUITO";

THAT in the technical report constant in memorandum No. DNAE-SAU-2014-00741 of June 20, 2014, the National Director of User Attention and Education states that two distinct original certificates have been exhibited, of which a copy has been left in the file, documenting two different obligations, so the assertion of Banco General Rumiñahui S.A. that it is a single obligation that was renewed upon its maturity lacks support;

THAT what is affirmed is backed by the report issued by the National Council of Narcotic and Psychotropic Substances CONSEP, with letter CONSEP-DNAJ-2015-0011-Q of January 9, 2015, in which, at the request of the Banking Board, it certifies that those deposit certificates were returned to Mrs. Dayra Levoyer in the year 2012 by CONSEP due to the definitive dismissal within the "CICLÓN" case, and even attaches the document delivery-receipt act of June 27, 2012, in which the certificates that have served as the basis for the present complaint are detailed, among others;

THAT in the work "The Securities in Ecuadorian Law", its author Doctor Santiago Andrade Ubidia states: "The instrumental function of the document with

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respect to the right brings as a logical consequence that such function ceases once the right is extinguished (...) Payment, that is, the fulfillment of the obligation according to the literal text of the document, normally extinguishes the title if such payment is made by the direct obligor (...)";

THAT although the appellant has not presented any evidence of payment of the monetary obligations represented by the investment certificates apparently legitimate in the possession of the claimant, it also has no obligation to conserve such evidence, as it was not legally obligated to do so by reason of the time elapsed, as explained in the report presented by the National Legal Intendant with memorandum INJ-DNJ-SAL-2015-0040 of January 21, 2015, in which it accounts that in the year 1991 the legal norm governing the matter under analysis was the General Banking Law, in whose Article 93, first paragraph, of the codification then in force, published in the Official Registry of September 15, 1987, the following norm is stated:

"Art. 93.- Each bank will conserve all vouchers of definitive entries in its books and deposits for a period of no less than six years, from the date of the respective entry.

(...)

THAT although the claimant presents documents that would justify obligations in her favor that must be honored by Banco General Rumiñahui, and that it corresponds to the latter to prove that they are extinguished, if the case, the controversy is confined to the purely jurisdictional scope, within which one can demand the recognition of rights and demand compliance with what is ordered to be paid in a sentence, a faculty that does not correspond to the Superintendency of Banks, since there is no record that the controlled entity has incurred in incorrect procedures in the services it provides to its users, such that this control body should order the return of values improperly debited or stolen from the funds entrusted by depositors to the financial institution;

THAT, by the fact that the complaint contains a claim that an order be issued for the payment of a supposed obligation of a purely commercial nature, the Superintendency of Banks must abstain from attending it, in any sense, as it is not a matter within its competence;"

THAT through a communication received by the Superintendency of Banks on March 27, 2015, Mrs. Daira María Levoyer Jiménez, with the professional sponsorship of the lawyer Oswaldo P. Trujillo Santillán, filed an appeal for reconsideration against the administrative act contained in Resolution No. JB-2015-3285 of March 4, 2015;

THAT the Banking Board, in the session held on May 13, 2015, in accordance with the second paragraph of Article 3, Chapter II, Title XVI, Book I of the Codification of Resolutions of the Superintendency of Banks and Insurance and the Banking Board, heard the appeal referred to in the preceding paragraph and determined that it does not meet what is provided in the first paragraph ibid., that is, there are no new elements of fact or law that motivate the elaboration of corresponding reports, so it decided to deny it outright; and,

IN exercise of its legal attributes,

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RESOLVES:

SINGLE ARTICLE.- DENY the appeal for reconsideration filed by Mrs. Daira María Levoyer Jiménez against the administrative act contained in Resolution No. JB-2015-3285 of March 4, 2015; and, consequently, CONFIRM said resolution.

NOTIFY.- Given at the Superintendency of Banks, in Quito, Metropolitan District, on the thirteenth of May of two thousand fifteen.

[Signature]