Santiago Civil Court condemns bank for opening a line of credit without verifying the identity of the applicant. – Constitutional Journal

The Eleventh Civil Court of Santiago sentenced Banco Falabella to pay compensation of $10,000,000 for moral damages, for providing a credit card to a third party who usurped the identity of the plaintiff.

Regarding non-material damage, the ruling states, there is no doubt that the situation experienced by the plaintiff, for reasons beyond his control, greatly harmed him and this is not only extracted from the documentary evidence provided where it is possible to see that he appealed in more than one opportunity to the defendant bank to request a review of its problem, as evidenced by the receipt of two requests, a request to the general manager of Banco Falabella, the presentations made before Sernac and the CMF, which, although they were not accompanied , these are presumed to have been carried out, since the responses that Banco Falabella gave to them are recorded.

In addition to that, the resolution adds, the incorporation of the plaintiff in the registry of delinquent debtors that appears in the Equifax (Dicom) report and the consequences of this on the commercial reputation of the actor, which ultimately led to his closure of line of credit in Banco Itaú, by losing the credit confidence of this last banking entity, this court has proven the moral damage suffered by the plaintiff, which is reaffirmed by the testimony of the witnesses

Then, the ruling indicates that in the case sub judice, it has been sufficiently established, by the evidence provided, that the credit card and opening of the line of credit obtained in the name of the plaintiff in this case was obtained digitally and fraudulently, as has been recognized by the defendant Bank itself in their responses, both to (….), and to Sernac and the CMF. It is also worth mentioning that Banco Falabella agreed to discount the amounts used, even prior to the responses sent to the aforementioned institutions, since via email in response to requirement No. 1-131108405573, it indicated to the plaintiff that the amounts would be reduced. requested and if you have any questions, please contact the Banco Falabella App or website.

The resolution adds that, as a whole, these responses allow this judge to estimate that the institution’s negligence was evident and, therefore, there is no evidence that they needed more time to investigate the case and nor was it necessary to request more background information. than those provided by the plaintiff, so the negligence of the institution is proven.

He adds that the lack of diligence in the administrative procedure that allowed an undetermined third party to obtain the products from Banco Falabella reflects the lack of sufficient surveillance to detect fraud in obtaining the products that allowed their use and resulted in the publication of a non-existent delinquent debt of the actor, as was proven by the documentary evidence related to the process, which also resulted in the damage that was proven in the case.

It states that since the plaintiff’s negligence has been proven and that it caused harmful consequences for the plaintiff, the second and third requirements of Aquiliana liability are considered to have been proven.

Finally, he adds, in relation to criminal capacity, we must specify that, as a general rule, every natural or legal person is capable of a civil crime or quasi-crime. Only those who lack the necessary discernment to realize the act they perform are incapable. It is the logical consequence of the system adopted by our Code, according to which delictual or quasi-delictual responsibility does not exist except on the condition that the harmful act or omission comes from the fault or fraud of its author, and both assume will (see Alessandri Rodríguez, Arturo, Of Extracontractual Liability in Chilean Civil Law, Legal Publishing House of Chile , Santiago , 2005 , p. 95)”.

For the court, having clarified the above, it is evident that the defendant is not subsumed in any of the hypotheses of exemption from liability related to the incapacity regulated by article 2319 of the Civil Code and, therefore, is fully capable for the purposes of the attributed responsibility.

The resolution states that, consequently, with all the evidence provided and that has been previously analyzed, it is possible to consider the assumptions of the action brought as proven, leaving only the quantum of the determined damage to be determined, which only corresponds to non-material damage.

The ruling concludes that, bearing only in mind that the plaintiff’s requests to the defendant were responded to by the plaintiff company without the need for prior judicialization, without ignoring the period of time that it was unjustly published in the Debtors Bulletin and the consequences that this brought on their normal life, the quantum of moral damage is prudently regulated in the sum of $10,000,000.

See ruling Role Nº12,737-2022