Recently, the Third District Court for Asset Forfeiture with Jurisdiction in the Mexican Republic and Specializing in Commercial Oral Trials in the First Circuit, based in Mexico City, in compliance with an amparo ruling, upheld a counterclaim that Lechuga Abogados filed on behalf of a Credit Institution and, in response to our argument, determined that an Interbank Transfer that was cleared and settled in accordance with the Internal Rules of the Interbank Electronic Payment System (known by its Spanish acronym SPEI) is final, irrevocable, enforceable, and opposable to third parties in accordance with Article 11 of the Payment Systems Law, and therefore cannot be disputed by ordinary means.
In this regard, it dismissed the main action for annulment brought by an individual and acquitted the Credit Institution of reimbursing the amount of the transfers not recognized by the plaintiff.
This ruling is relevant because at Lechuga Abogados, since 2016, we have maintained that nullity actions are prohibited against Accepted Transfer Orders, that is, interbank transfers cleared and settled in accordance with the Internal Rules of a High-Value Payment System, pursuant to the provisions of Article 11 of the Payment Systems Law and its background, which dates back to the “Western Hemisphere Payments and Securities Clearance and Settlement Initiative” and "DIRECTIVE 98/26/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 19 MAY 1998 ON SETTLEMENT FINALITY IN PAYMENT AND SECURITIES SETTLEMENT SYSTEMS“, whose objective was to elevate the ”Principle of Finality“ or ”Settlement Finality" as a mechanism for protecting payment systems.
This does not mean that bank users are left defenseless against possible errors or fraud in the execution of transfers that they do not recognize, but simply that an action for nullity is not the appropriate way to pursue their claim, since in any case they must claim civil liability from the credit institution when executing such transactions.
This last criterion harmonizes the regulatory provisions for the protection of payment systems, the rules governing the formation of consent by electronic means, and basic principles such as “AAA” in Access Control and Non-Repudiation for cybersecurity purposes, aspects that were overlooked in Contradiction of Thesis 206/2020 of the First Chamber of the Supreme Court of Justice of the Nation (of Mexico) and which, for this reason, currently generate an extremely complicated burden of proof for Credit Institutions in this type of litigation.
However, the ruling can still be challenged by the plaintiff, adding to a series of lawsuits sponsored by Lechuga Abogados that are before Collegiate Courts of various Circuits and before the Supreme Court of Justice of the Nation (of Mexico), where precisely the review of these points has been requested.