Almost every year, from 2014 to 2025, a Popular Financial Society (Sociedad Financiera Popular) has failed in Mexico while under the supervision of the National Banking and Securities Commission (“CNBV”).
The first bankruptcy of its kind — that of Ficrea in 2014 — gave rise to multiple lawsuits, including several claims seeking to hold the State liable for irregular administrative activity by the CNBV (deficient supervision). The Second Chamber of the Supreme Court of Justice of the Nation took up a pair of cases, in which the resulting judgments ultimately provided institutional backing to the CNBV.
In those two lawsuits, the Supreme Court denied compensation to Ficrea’s depositors on the grounds that the CNBV had not acted irregularly, since the Popular Savings and Credit Law (“LACP”) grants it discretionary authority to place popular financial societies (“SOFIPOs”) under managerial intervention, with freedom of judgment and “a broad scope of application to decide whether it should act or refrain from acting, to determine when and how it should do so, or even to freely determine the content of its potential action.”
However, that decision of the former Second Chamber was approved by a narrow three-to-two majority, and it is also open to question whether one of the concurring votes involved a conflict of interest, given that the Justice in question had, years earlier and in a different public capacity, approved the CNBV’s decision to revoke Ficrea’s authorization.
The Mexican Constitution indeed provides, in Article 25, for the State’s stewardship over economic development, which in the financial sphere is exercised through the CNBV as a decentralized agency with technical autonomy, tasked with promoting the stability and proper functioning of the Mexican financial system in protection of the public interest.
Nevertheless, from the collapse of Ficrea through the most recent failure of Consejo de Asistencia al Microemprendedor (“CAME”), every revocation of a popular financial society has been accompanied by scandals and allegations of fraud to the detriment of the investing public.
For purposes of this analysis, it is useful to highlight several common features shared by both bankruptcies and revocations:
Ficrea raised approximately MXN $6.5 billion (US$380 million) from around 6,500 depositors. When the CNBV decided in November 2014 to place Ficrea under managerial intervention, due to its irregular operations and diversion of funds through related companies, its coffers were completely empty. A decade later, Ficrea´s insolvency proceeding remains pending, and its depositors have yet to recover their savings.
CAME, for its part, raised approximately MXN $2 billion (US$116 million) from allegedly 1,300 depositors. When the CNBV decided in June 2025 to place CAME under managerial intervention — which had likewise diverted depositors’ funds through related companies — its bank accounts reflected only MXN $3 million (US$175,000).
Ficrea was authorized by the CNBV in 2008 to operate as a SOFIPO, originally incorporated by several shareholders who, in 2010, transferred their shares to Rafael Antonio Olvera Amezcua and another partner. Mr. Olvera acquired 99.92% of the shares, in violation of Article 44 of the LACP — with the knowledge and acquiescence of the CNBV — since he never sought prior authorization from the supervisory authority to acquire such shares.
CAME was authorized by the CNBV in 2009 to operate as a SOFIPO, originally incorporated by several shareholders who, in 2019, transferred their shares to Te Creemos Holding (“TCH”) and another partner. With the approval of the CNBV, TCH acquired 99.99% of the shares and is now subject to insolvency proceedings following the revocation of CAME’s authorization.
In addition to CNBV supervision, the applicable legal framework provides that SOFIPOs are subject to auxiliary supervision by a Federation to which various financial entities are affiliated. Notably, both Ficrea and CAME were subject to auxiliary supervision by Federación Atlántico Pacífico (“FAP”).
Moreover, it is noteworthy that as soon as Mr. Olvera acquired 99.92% of Ficrea’s shares, he chose for Ficrea to be subject to auxiliary supervision by FAP — whereas it had previously been affiliated with a different Federation — and Ficrea’s new chief executive officer joined FAP’s supervisory board.
Similarly, once TCH acquired 99.99% of CAME’s shares, it chose for CAME to be subject to auxiliary supervision by FAP, and CAME’s new chief financial officer — who was also a founder and shareholder of TCH — joined FAP’s board of directors.
This course of conduct by Ficrea and CAME, with the knowledge and consent of the CNBV, gave rise to a conflict of interest prohibited under the applicable legal framework, as a key figure within the SOFIPO (the supervised entity) became an influential member of FAP (the supervising body).
Among the powers of the Federations (e.g., FAP) is the authority to propose to the CNBV the removal of the chief executive officer of supervised financial entities. However, Ficrea’s chief executive officer was simultaneously part of FAP, which confirms the existence of a conflict of interest between the supervised entity and the supervising body, tolerated by the Commission.
Another common feature in these cases is that, once the fraudulent operation of the SOFIPO became impossible to conceal (in CAME’s case, its parent company even notified the CNBV in writing of the fraud), the CNBV — while observing due process and the supervised entity’s right to be heard — embarked on a lengthy and discreet review process of Ficrea in 2014 and of CAME in 2025, ultimately determining, many months later, the appropriateness of managerial intervention and, eventually, the revocation of the authorization of both financial entities.
One problem arising from this approach is how the interests of the depositors — the ultimate purpose of the CNBV, as mandated by its governing legislation — are protected, since during this extended period of review and deliberation by the supervisory authority, both Ficrea and CAME completed the dissipation of their assets, and CAME even had time to sell its headquarters building.
Clearly, managerial intervention has not functioned as a precautionary measure. Indeed, in the months preceding intervention and revocation, both SOFIPOs even increased their advertising efforts to attract additional funds from the public, to the point that some individuals entrusted their savings to the financial entity on the very day the managerial intervention took place.
In sum, both failures resulted in thousands of victims who lost their savings — many of them from lower-income sectors and older adults — as the Protection Fund covers only 25,000 UDIs (approximately USD $12,000) per depositor in the event of revocation and liquidation of a SOFIPO.
Unsurprisingly, the CNBV maintains in the face of both episodes that its supervision was proper and lawful, and that the timing of the managerial intervention was effective and appropriate, safeguarding the interests of depositors.
These recurring stories of fraud since 2014, all under CNBV supervision, bring to mind the well-known phrase often attributed to Agatha Christie: “one coincidence is just a coincidence, two coincidences are a clue, three coincidences are a proof.” Let us therefore examine the issue.
While the Supreme Court concluded in two isolated precedents — decided by a divided vote and arising from the Ficrea case — that the CNBV enjoys discretionary authority to decide whether to place a SOFIPO under managerial intervention, as well as the timing and terms of such action, it is equally true that the Commission’s supervisory activities are not exempt from judicial scrutiny in light of the limits and mandates imposed by the Constitution and the law.
This has been recognized in various judicial precedents specifically concerning the constitutional review of the discretionary powers of State regulatory bodies, making it clear that “under the constitutional regime, all public authorities, including constitutionally autonomous bodies, are subject to the principle of legality, which implies that courts may review the constitutionality of their decisions, even within the sphere of technical discretion, since the actions of authorities are bound by certain limits, including those arising from the prohibition of arbitrariness, the specific guidelines established by the Constitution and the law, and the requirements of due reasoning and justification, which entail that authorities’ decisions must not only be formally justified, but must also be grounded on established facts and on a proper interpretation of the purposes of the rule that empowers them, as well as on the principles of proportionality and reasonableness of the decision.”
Given that the underlying question is whether the supervision exercised over SOFIPOs has been regular and in accordance with the law, it is important to analyze the doctrine of fraud upon the law (fraus legis), traditionally defined as compliance with the letter of the law while violating its spirit; that is, “to frustrate its purposes, to violate or evade the spirit that animates it, and to reach a result contrary to that intended, under the pretext of respecting its wording.”
On the one hand, Article 9 of the LACP prohibits the transfer of a SOFIPO authorization and, in the cases of Ficrea and CAME, it could be argued that there was an —indirect— transfer of such authorizations when 100% of the shares were transferred.
On the other hand, several scholars have noted that the fact that a single person acquires 99.9% of the shares of a legal entity —as occurred in the cases of Ficrea and CAME— constitutes a fraud upon the law, since it operates as an artifice to satisfy the legal requirement of having at least two shareholders and to evade the ground for dissolution of commercial companies when all shares are concentrated in a single person.
Fraud upon the law is a doctrine recognized both in Mexican legislation and in case law. It is provided for in the Inter-American Convention on General Rules of Private International Law, to which Mexico is a party, as well as in the Federal Civil Code, which generally serves as supplementary law to Mexican statutes.
Regarding the defining elements of fraud against the law, Mexican case law recognizes the following: “1. A covering legal rule under whose protection the agent contravenes another rule or principle. 2. A rule, principle, or legal value that governs or limits the covering rule. 3. The existence of certain circumstances in the application of rule 1 that reveal the evasion of rule 2.”
In the two cases at issue, Article 44 of the LACP serves as the enabling provision, as it allows a person to acquire more than 5% of the shares—or even control—of a SOFIPO with prior authorization from the CNBV. In contrast, Article 9 of the same statute functions as the limiting provision, as it prohibits the transfer of a SOFIPO’s authorization, reflecting the principle of protecting the interests of the saving public— a prohibition that could be considered breached through the transfer of 100% of the shares.
Legal scholarship has noted, with respect to the disguised transfer of an authorization through changes in shareholding composition, that although it is true that the legal entity formally holds title to the governmental authorization and that such title does not change merely because of changes in its shareholding, regardless of their nature or extent, it is also true that there exists a material ownership, held by the shareholders at the time the authorization was granted, and that “the shareholding composition, in its material dimension, forms part of that intuitu personae character.”
In the bankruptcies at issue, particularly in the case of CAME, in which a holding company acquired in a single transaction 99.99999% of the shares from the various founders of that SOFIPO, it is possible to question whether this constitutes fraud against the law, as a type of atypical unlawful conduct, since such share concentration had at least the following two significant effects:
First, the holding company created a barrier to CNBV supervision, insofar as that authority, in principle, supervises the conduct of financial entities rather than shareholders or persons who are not part of the Mexican financial system. Thus, TCH was in a position to operate CAME ad libitum, holding shareholders’ and board meetings, reviewing financial statements, making business decisions, etc., with respect to that SOFIPO behind the scenes.
Second, TCH represented an additional corporate shield to the detriment of CAME’s depositors, since in reality TCH had no purpose other than to serve as a vehicle to operate the financial entity, without additional sources of income or assets, to the extent that once the fraud at that SOFIPO was uncovered the holding company filed for insolvency proceedings, with the result that neither CAME nor TCH has any assets to assume liability toward their defrauded depositors.
Under the doctrine of atypical unlawful acts, Mexican case law recognizes that it is possible to depart from a rule that permits certain conduct in order to make an adjustment in its directive dimension, where the application of principles that provide coherence to the legal system is necessary; that is, this doctrine seeks to avoid the extreme formalism of adhering to the literal wording of a rule that would lead to value-based inconsistency in judicial decisions.
In the same vein, Mexican courts have resorted to the concept of an “axiological gap”, which is based on the recognition that there is a rule applicable to the facts of the case and, therefore, that no “normative gap” exists; however, the interpreter concludes that the solution proposed by that rule is inadequate from the standpoint of the principles or values of the legal system, and thus it must be set aside.
In one of the cases under analysis, the CNBV has taken the position that there was no legal impediment for TCH to acquire 99.99999% of CAME’s shares. On the contrary, had the authority denied approval of such shareholding, it would have acted unlawfully.
However, the CNBV overlooks the notion of fraud on the law discussed above, which presupposes that a person has a right but abuses it. Accordingly, legal scholarship often cites as an example the case in which a person has the right to change residence or nationality but abuses that right solely to evade the application of his or her national law, insofar as it governs personal status.
The alleged right to hold 99.99999% of the shares of a financial institution should not be taken for granted, but rather approached with caution, as it creates a barrier to CNBV supervision and adds an additional corporate veil for the shareholders of the holding company, as noted above.
When exercising its supervisory powers over SOFIPOs, including granting authorizations to operate and approving share transfers, the authority must not only seek to preserve the stability of the financial system but also safeguard the protection of the public’s interests, which constitutes its ultimate purpose and does not appear to have been adequately weighed in the various financial institution failures over the past decade.
Discretion does not equate to arbitrariness or impunity. Although the CNBV is the State’s expert authority in this field and enjoys discretionary powers, all authorities are subject to the principle of legality and to judicial review, including in matters involving technical discretion.
Law is not merely a set of rules, but also a system of principles, and its purpose is to fulfill certain ends that are not confined to the literal wording of those rules.
As the saying goes, “he who makes the law makes the loophole”, and the doctrine of fraud on the law serves as a remedy to restore the law’s mandatory character — in this case, to protect the interests of the saving public.