Resolution No. JB-2015-3477 of the Banking Board

Banking Board of Ecuador

RESOLUTION No. JB-2015-3477

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 force 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 empowers the Banking Board to continue acting until it resolves all claims, appeals, and other administrative procedures that it was hearing on 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 by Resolution No. 054-2015-F, of March 5, 2015, published in the Official Register No. 467, on March 27, 2015, the aforementioned period has been extended by an additional one hundred and eighty days;

THAT by Resolution No. JB-2014-3024, of August 1, 2014, the Banking Board, upon hearing the review appeal filed by the Executive Vice President - General Manager of Banco de Guayaquil, regarding letter No. DNAE-SAU-2013-05011, of August 30, 2013, resolved:

“SINGLE ARTICLE.- ACCEPT the claim contained in the review appeal filed by Mr. Víctor Hugo Alcívar Álava, Executive Vice President - General Manager of Banco de Guayaquil S.A.; and, consequently, REVOKE letter No. DNAE-SAU-2013-05011 of August 30, 2013, through which the Subdirector of User Attention ratified letter No. DNAE-SAU-2013-02037 of April 12, 2013, in which it was ordered that Banco de Guayaquil S.A. “proceed with the reimbursement of the values claimed by Mrs. Mónica Alexandra Jaya Gómez, including transaction costs, and except those that were initially recognized”;

THAT by writing received at the Superintendence of Banks on September 2, 2014, Mrs. Mónica Jaya Gómez, in her own right, filed an appeal for reconsideration against resolution No. JB-2014-3024, of August 1, 2014;

THAT by letter No. JB-2014-2385, of September 4, 2014, the Secretary of the Banking Board, accepted the aforementioned appeal for reconsideration for processing; and through letter JB-2014-2386, of the same date, informed the Executive Vice President - General Manager of Banco de Guayaquil S.A. of the matter; THAT the Secretary of the Banking Board, through letter JB-2014-3001, of November 10, 2014, forwarded to the appellant the request of the Banking Board regarding the confirmation of notification to Banco de Guayaquil S.A. of the change of mobile phone number to which notifications were to be made through SMS messages;

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Banking Board of Ecuador

Resolution No. JB-2015-3477
Page No. 2

THAT by communication entered at the Superintendence of Banks on December 2, 2014, Mrs. Mónica Alexandra Jaya, while reiterating her assertions made in the initial complaint, attached a "... report from the operator Claro with the data of my mobile number and asking the bank for a report on the messages allegedly sent to another old number";

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 complaint, determined the Superintendence of Banks and Insurance as the competent authority 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; attributions that are currently contemplated in article 60 of the Organic Monetary and Financial Code with the purpose that these activities be subject to the legal framework and attend to the general interest; in harmony with numbers 9 and 16 of article 62 ibid, which determine, among others, the functions of the Superintendence, in that order: “9. Require that controlled entities present and adopt the corresponding corrective and rehabilitation measures”; “16. Protect the rights of financial clients and users and resolve administrative disputes that arise with entities under its control for which it may request or carry out ex officio, as appropriate, the necessary control actions for their clarification”.

THAT article 3; section I.- OF RECONSIDERATION; chapter II, title XVI; book I of the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, establishes:

“ARTICLE 3.- The appeal for reconsideration must be based solely on the existence of factual or legal elements not known to the Superintendence of Banks and Insurance or the Banking Board at the time of issuing the resolution, whose confirmation, if it had existed, could have decisively influenced the sense of the resolution.”

THAT the appellant stated as the sole argument: “I want to inform that I never received text messages informing me of the withdrawals made in the different branches with my debit card, therefore, I do not agree with this resolution.”;

THAT from the file it is evident that Banco de Guayaquil S.A. partially accepted the client's claim, not accepting the return of values corresponding to transactions made after the sending of messages that indicated the debits effected;

THAT the writing presented by the appellant on December 2, 2014, within the appeal for reconsideration, object of this report, in attention to the request of the collegiate body, also warns of the controversy arising between the financial institution and the client, related to the sending by the bank of messages via mobile phone and the receipt of the same by the appellant, who maintains her insistence in the sense that Banco de Guayaquil S.A. indicate through a report the messages sent “allegedly to an old number”;

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Banking Board of Ecuador

Resolution No. JB-2015-3477
Page No. 3

THAT the appellant attached to the appeal for reconsideration, as additional documentation and in relation to letter No. JB-2014-3001, of November 10, 2014, a signed photocopy marked “Commercial Management Applications” of the Claro Amazonas and Robles Sq. Agency, in which basic information of a cellular telephone line contract No. “81012480” is recorded, regarding which the control body cannot pronounce because it does not compete with the performance of evidence. However, no documentation is observed that responds to the request of the Banking Board regarding the confirmation of notification by the appellant to Banco de Guayaquil S.A. of the change of mobile phone number to which, according to the appellant, the bank should have made notifications through SMS messages;

THAT it should be noted that the file contains notifications made by Banco de Guayaquil S.A. regarding transactions carried out between September 3, 2012, to September 10, 2012, to number “0981012480”, which correspond to the period of execution of the initially claimed transactions;

THAT for the reasons stated, the argument of the appellant in the sense of not having been notified of the withdrawals, via cellular telephone, becomes inadmissible;

THAT the National Legal Intendancy, through memorandum INJ-DNJ-SAL-2015-0398 of May 13, 2015, recommended to the Banking Board to reject the claim contained in the appeal for reconsideration filed;

AND IN exercise of its legal attributions,

RESOLVES:

SINGLE ARTICLE.- REJECT the claim contained in the appeal for reconsideration filed by Mrs. Mónica Alexandra Jaya Gómez; and, consequently, CONFIRM resolution JB-2014-3024, of August 1, 2014.

NOTIFY.- Given at the Superintendence of Banks, in Quito, Metropolitan District, on June 10, two thousand fifteen.

(Signature)
Econ. Rodrigo Landeta Parra
GENERAL INTENDANT, S
PRESIDENT OF THE BANKING BOARD, E

I CERTIFY.- Quito, Metropolitan District, on June 10, two thousand fifteen.

(Signature)
Lcdo. Pablo Cobo Luna
SECRETARY OF THE BANKING BOARD