Resolution SBS No. 1870-2020: Amending the Market Conduct Management Regulations of the Financial System and the Regulations on Infractions and Sanctions of the Superintendency of Banks, Insurance and Private Pension Fund Administrators

Lima, July 29, 2020

S.B.S. Resolution
No. 1870-2020

The Superintendent of Banks, Insurance and Private Pension Fund Administrators

CONSIDERING:

That, through SBS Resolution No. 3274-2017, the Market Conduct Management Regulations of the Financial System were approved, with the aim that companies have adequate market conduct management reflected in the practices they adopt in their relationship with users, in the offer of financial products and services, information transparency, and complaint management;

That, through SBS Resolution No. 6523-2013 and its modifying norms, the Credit and Debit Card Regulations were approved, which establish general provisions applicable to credit and debit cards, among other aspects;

That, through Circulars No. B-2213-2013, F-553-2013, CM 401-2013, CR-269-2013, EAH-17-2013, EDPYME-146-2013, with the aim of maintaining uniformity in the information disseminated about commissions passed on to users and to allow them to be easily identifiable, categories and denominations applicable to financial products were established;

That, through Supreme Decree No. 044-2020-PCM and its modifications, the National Emergency State was declared as a consequence of the COVID-19 outbreak, and various exceptional and temporary measures regarding its spread have been established;

That, in light of the current situation the country is going through and with the aim that financial system companies maintain adequate market conduct regarding those clients with temporary difficulties in paying their loans, it has been determined that it is necessary to incorporate in the final complementary provisions of the Market Conduct Management Regulations of the Financial System, guidelines that guarantee that in emergency scenarios, companies provide adequate treatment to said clients in order to prevent and/or mitigate the deterioration in their credit rating;

That, likewise, taking into consideration the results of the Superintendency's supervision activities, as well as the main international references, it is necessary to incorporate in the Market Conduct Management Regulations of the Financial System, examples of practices that do not fit the criteria established in said Regulations and in Annex No. 3 of said norm, charges that do not meet the criteria to be considered commissions and expenses, in order to prevent situations that could affect the legitimate interest of users and confidence in the financial system;

That, it is considered necessary to establish provisions regarding those credit cards that, allowing access to payment networks and infrastructure, as well as the consumption of goods and services, elements that are essential services or inherent to said product, do not grant other additional benefits specific to the credit card;

That, in the same way, considering the National Emergency State and its impact on the type of transactions performed by credit card holders, as well as on their income level, it is necessary to establish measures regarding the offer of credit cards by financial system companies, all with the aim of giving users the possibility to contract less burdensome products, fostering financial inclusion;

That, finally, it is necessary to modify the Regulations on Infractions and Sanctions of this Superintendency, in order to incorporate the infractions corresponding to the non-compliance with the latest norms issued by this Superintendency;

That, in order to collect the opinions of the general public, the draft resolution was pre-published on the electronic portal of the Superintendency, under the provisions of Supreme Decree No. 001-2009-JUS;

Having the approval of the Adjunct Superintendencies of Banking and Microfinance, Market Conduct and Financial Inclusion, Economic Studies, Risks, and Legal Advisory; and,

In exercise of the powers conferred by numerals 7, 9 and 13 of article 349 of the General Law of the Financial System and the Insurance System and Organic Law of the Superintendency of Banks and Insurance – Law No. 26702 and its modifying norms;

RESOLVES:

Article First.- Incorporate Article 53-A, the Sixth and Seventh Final Complementary Provision and numeral 22 in Annex No. 3 of the Market Conduct Management Regulations of the Financial System, approved by SBS Resolution No. 3274-2017 and its modifying norms, according to the following text:

“Article 53-A Abusive Practices

Abusive practices are those conducts that affect the legitimate interest of users by taking advantage of the particular circumstances of the consumption relationship, imposing excessively burdensome conditions or those that were not foreseeable at the time of contracting.

The abusive practices that are prohibited are detailed in Annex No. 5 of the Regulations. This list may be expanded or modified by the Superintendency as a consequence of its supervision activities through a norm of a general nature.”

“FINAL COMPLEMENTARY PROVISIONS

(…)

Sixth. – Treatment of clients with temporary difficulties in paying loans in the framework of a declaration of a state of emergency

Companies may carry out contractual modifications of loans in the framework of a declaration of a state of emergency. Companies that have carried out unilateral modifications, or that plan to carry out modifications by agreement with users on the contractual conditions of loans granted to clients who present or may present temporary delays in their payments, according to the provisions issued by the Superintendency in the framework of a declaration of a state of emergency and others that are applicable, must establish policies and procedures for the treatment of said clients and offer alternatives consistent with their financial situation and payment capacity. Such treatment is part of the credit administration service and collection management and, therefore, an essential and/or inherent service to the credit, as stated in Article 17 of the Regulations.

The minimum aspects that companies must implement for the treatment of clients mentioned in the previous paragraph are detailed in Annex No. 6. The justifications for the implementation of said aspects must be available to this Superintendency.

In the case of contractual modifications in the framework of a declaration of a state of emergency, other than those cited in the first paragraph, such as refinancings, companies will strive to establish similar policies and procedures to those previously mentioned.

Seventh. – Offer of credit cards without membership fee

Companies that issue credit cards must have within their portfolio of credit cards, at least, one that does not include within its conditions the charging of a membership fee.

Companies must inform users about the existence of the credit card without a membership fee, prior to the contracting of any credit card, and must keep the justification of compliance with this obligation.

These cards must allow access to payment networks and infrastructure, including the consumption of goods and services, without this implying the charging of a membership fee, as these are essential or inherent services. Likewise, companies offer the services associated with these cards as established in the Credit and Debit Card Regulations.”

“Annex No. 3

Examples of charges that do not fit the criteria of the Regulations to have the quality of commissions or expenses

(…)

22. Charges for the concept of access and management associated with the treatment of clients with temporary difficulties in paying loans in the framework of a declaration of a state of emergency.

(…)”

Article Second.- Modify numeral 63 of the serious infractions of Annex 1; numeral 11 of the minor infractions and numeral 31 of the serious infractions of Annex 2; as well as incorporate numeral 20 of the very serious infractions of Annex 1, numeral 19 of the minor infractions, numerals 51, 52, 53, 54, 55, 56, 57 of the serious infractions and numerals 13 and 14 of the very serious infractions of Annex 2 of the Regulations on Infractions and Sanctions of the Superintendency of Banks, Insurance and Private Pension Fund Administrators, approved by SBS Resolution No. 2755-2018, according to the following text:

Annex 1
Common Infractions

(…)

II. Serious Infractions

(…)

63) Carrying out conducts considered as abusive practices according to the law on the matter and/or the regulation issued by this Superintendency.

(…)

III. Very Serious Infractions

(…)

20) Carrying out conducts considered as abusive practices according to the law on the matter and/or the regulation issued by this Superintendency, which have produced an economic impact equal to or greater than the amount equivalent to 100 UIT.

(…)

Annex 2
Specific Infractions of the financial system and of complementary and related service companies

I. Minor Infractions

(…)

11) Not including in the summary sheets and/or information booklet and/or summary of conditions and/or credit card account statements, as appropriate to the contracted product or service, the minimum information requirements included in the regulation issued by the Superintendency.

(…)

Specific Infractions of the financial system and of complementary and related service companies

19) Not informing users about the procedure for the return of the unearned premium when they make a partial or total advance payment of the loan or when the insurance contract is resolved without cause and/or in any other case so provided by the applicable regulation.

II. Serious Infractions

(…)

31) Regarding the Market Conduct Officer:

a) Not having a Market Conduct Officer, as established in the regulation issued by the Superintendency.

b) Having a Market Conduct Officer, whose designation does not meet the requirements established in the current regulation.

c) That the Market Conduct Officer does not fulfill the functions and responsibilities as stated in the current regulation.

(…)

51) Not having a notification service on operations carried out with the credit and debit card; and/or not complying with the sending of said notifications according to what is established in the current regulation, from a significant sample reviewed by the Superintendency.

52) Not complying with the regulatory provisions referred to the communication mechanisms available to users for the blocking of credit and/or debit cards.

53) Granting additional financing that is not independent of the credit card line, according to what is established in the current regulation.

54) Not complying with the regulatory provisions referred to the contractual resolution of the credit card product, from a significant sample reviewed by the Superintendency.

55) Not complying with the regulatory provisions referred to the enabling and/or disabling of additional credit and debit card services, from a significant sample reviewed by the Superintendency.

56) Not assuming responsibilities for unrecognized operations reported by users, according to the conditions established in the current regulation and in a significant sample reviewed by this Superintendency.

57) Not implementing policies and procedures for the adequate treatment of clients with difficulties in paying loans, in the framework of a declaration of a state of emergency and according to the provisions issued by the Superintendency, and/or their lack of application for a significant sample reviewed by the Superintendency.

III. Very Serious Infractions

(…)

13) Not complying with the execution and/or application of the agreed conditions, according to the terms provided in the current regulation, with an economic impact equal to or greater than the amount equivalent of 100 UIT.

14) Not assuming responsibilities for unrecognized operations reported by users, according to the conditions established in the current regulation, with an economic impact equal to or greater than the amount equivalent of 100 UIT.”

Article Third.- This Resolution enters into force thirty (30) days following its publication in the Official Gazette El Peruano.

Register, communicate and publish,

SOCORRO HEYSEN ZEGARRA
Superintendent of Banks, Insurance and Private Pension Fund Administrators