Cooperativa Manager, currently in liquidation, obtained a favorable ruling. Partners ask that it be merged and not liquidated
One Rumiñahui Civil Judge gave the green light to the possibility that the Juan de Salinas Cooperative, currently in forced liquidation by resolution of the Superintendency of Popular and Solidarity Economy, continue to operate. On December 15, the judge accepted a request for a protection action in favor of the manager of the Cooperative, Franklin Ayala.
The cooperative was declared in forced liquidation last December 1, after on November 30, the Superintendency completed the intensive supervision process that it was carrying out.
The The cooperative’s lawyer, Álvaro Lara, explained the manager Ayala, personally, he filed the protection action, since they have considered that the cooperative did not have access to the right to defense in the process carried out by the Superintendency. The Rumiñahui judge granted him the request and has ordered the process to be rolled back to July 9, 2021. In other words, the Superintendency’s resolutions that, on the one hand, declared the intensive supervision process ended, and on the other, have been annulled. declared the forced liquidation.
For Lara, these court decisions would even allow them to carry out a potential merger process that had been presented on November 30. The judge also ordered that the liquidator appointed by the Superintendency leave the cooperative and that, in turn, the control body present a public apology to the Juan de Salinas Cooperative.
However, Lara regretted that despite the fact that these types of decisions are of immediate execution and are not suspended, although other remedies have been filed, the Superintendency would not be complying with the judicial decision. The Superintendency filed an appeal and clarification of the sentence. For the lawyer, the lack of compliance and the delay in the reactivation of the cooperative would be generating significant reputational damage to the financial institution.
According to Lara, the request for protection was based on the fact that there was no right to the proper defense of the cooperative. The cooperative had delivered between June 30 and July 9 discharges to the findings matrix. However, they were never answered about the results. Rather, new reports were generated that were not made known to the cooperative. What is now known is that the Superintendency had indicated that the audit reports are reserved, but the cooperative has indicated that they are reserved for third parties, but not for the auditee. In any case, the Superintendency had found that there was a breach by the cooperative of 17 of the 23 items analyzed, but it did not explain what these breaches were.
In any case, Lara acknowledged that the cooperative has dragged on a problem generated by the previous administration since 2018. The former manager and the former accountant are currently having criminal complaints for false financial information. They tried to hide certain losses through a lot sale operation, not technically supported. This would have generated a capital insufficiency, but the exit, according to Lara, is not the forced liquidation, but precisely the possibility of a totally viable merger by absorption.
On the subject, the Superintendency of Popular and Solidarity Economy reported that in view of the judge’s decision, the entity filed the respective appeal, not agreeing with the resolution, considering that “the actions of this Institution are framed in the observance of the Constitution and the Law and respect for the rights enshrined in the aforementioned constitutional body.”
He also confirmed that with a letter dated December 21, 2021, within the legal term, the respective horizontal appeal was filed, “since there are arguments of the judicial decision that must be clarified, of which the judge’s decision is not yet available.”
When the Superintendency was consulted on whether it would not be convenient to give way to the merger, rather than proceed with the liquidation, the control body said that when the Superintendency through supervisory processes will determine that a financial entity of the popular and solidarity financial sector is involved in one or more causes of forced liquidation, and while it is not possible or feasible to implement a process of exclusion and transfer of assets and liabilities, “you must proceed with the issuance of the resolution of forced liquidation, as provided in article 304 of the Organic Monetary and Financial Code ”.
On the other hand, he explained that article 171 of the aforementioned legal body provides that the ordinary merger is the one agreed and carried out by financial entities “That they are not in a situation of deficiency of technical patrimony”. In this sense, such a merger would not proceed. (I)
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