Supreme Court Confirms That There Is Freedom To Determine Interest Rate In Money Lending Operations Agreed And Payable In Foreign Currency - Finance and Banking - Mondaq Chile - Mondaq Business Briefing - Books and Journals - VLEX 655983373

Supreme Court Confirms That There Is Freedom To Determine Interest Rate In Money Lending Operations Agreed And Payable In Foreign Currency

Author:Mr Felipe Moro, Juan Pablo Loyola and Diego Lasagna
Profession:Carey
 
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Origin of the case

On March 13, 2014, Banco International filed a collection lawsuit (demanda ejecutiva) against Agrícola Santa Fe Limitada, for the non-payment of a loan in dollars, payable in said currency and documented in a promissory note.

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 (tasa de interés corriente) according to the article 8 of Law 18,010 about money lending operations.

The First Instance Court requested a pronunciation of the Superintedency of Banks and Financial Institutions ("SBIF") about the matter. The SBIF provided an answer through its ordinary resolution (oficio ordinario) No. 1,491 stating that: "This Superintendency, in accordance with the faculties granted by article 6 of the Law 18,010, only determines maximum and conventional interest rate of operations expressed in foreign currency but payable in Chilean pesos. Therefore, it does not determine the common interest rate nor the conventional maximum interest rate of operations expressed and payable in foreign currency, ruling for such effects, interest rate freedom for operations agreed and payable in any of the existent foreign currencies".1

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 main argument, an incorrect application of the rules of the Law 18,010 about money lending operations.

The sentence

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...

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