Origin of the Case
On March 13, 2014, Banco International filed a collection lawsuit (
As part of its defense, the defendant invoked that the interest rate determined by the bank exceeded the conventional maximum interest rate in force, whereby requested the Court not to consider said pact and to reduce the interest rate to the common interest rate (
The First Instance Court requested a pronunciation of the
Lastly, and bearing in mind the SBIF’s statement, the First Instance Court rejected the exceptions opposed by the defendant and ordered to continue with the collection process until the lender is paid.
Once the first instance sentence was pronounced, the defendant filed an appeal remedy and an annulment remedy against the resolution. The Temuco’s Appeal Court, through sentence dated December 23, 2015, rejected both remedies and confirmed the first instance sentence.
Against this latter resolution, the defendant presented an annulment remedy before the Supreme Court, invoking as
The remedies were rejected by the Supreme Court though sentence dated September 27, 2016, based on the following reasoning:
- That the promissory note, as it indicated in its text, was ruled by the special regulations of the Foreign Exchange Compendium of the Central Bank of Chile, which does not establish a legal limit to determine conventional interest rate;
- That since the promissory note is ruled by said regulations, the rules established in Law 18,010, about money lending operations, do not apply to it; and
- That for the sake of completeness, the SBIF
itself,confirmed that there are no interest rate limits for operations agreed and payable in foreign currency (hereinafter the “Foreign Currency Loans”).
This sentence reflects the criterion that consistently has been applied to date by the banking industry, based on the above-mentioned interpretation, issued by the SBIF.
Notwithstanding the above, we have to point out that article 5 of the Law 18,010 explicitly states the four types of money lending operations in which the interest rate limit does not exist, without making any reference to Foreign Currency Loans. Furthermore, it must be highlighted that until
Additionally, it shall be noted that Law 18,010 defines money lending operation as “operations in which one of the parties delivers or undertakes to deliver an amount of money and the other party undertakes to pay said money in a different moment than the one when the convention is celebrated”. We, therefore, understand that if a loan (as it is the case) is documented in a promissory note, this promissory note will be ruled by Law 18,010 and by Law 18,092 over promissory notes and bills of exchange, even if the parties decide to rule the promissory note by
Considering the abovementioned, it is difficult to ensure that the conclusion adopted by the Supreme Court in the referred sentence will remain totally immutable in time, considering also the relative effect of the sentences in Chile.
1This criterion had been already expressed by the SBIF through communication No. 14,396 dated November 20, 2009, addressed to Corpbanca's CEO.