The National Chamber of Commercial Appeals confirmed that a banking entity must compensate a user for wrongly reporting him as a financial debtor after identity theft, although it revoked the fine for punitive damage that the court of first instance had set.
The man filed a lawsuit against the financial institution after warning that His name appeared in the debtor records of the Central Bank and a private databasedespite the fact that he had never been a client of that institution nor had he requested linked products.
According to the lawsuit, the victim became aware of the situation in October 2020. The negative information placed him in situation two, incipient debtor, along with other banking entities in which he also did not have accounts. The affected person reported that his only formal banking ties corresponded to branches of two other banks in the city of Quilmes.
The problem originated when unknown persons used the plaintiff’s personal data to open an account in the defendant entity, through a telemarketing process. The account, which was never requested or signed by the true owner, was blocked only after the maneuver was detected. The plaintiff filed a criminal complaint with the Functional Instruction Unit No. 2 of La Plata, under the category of fraud.
In parallel, the affected person notified the financial institution through a document letter sent in October 2020, requesting the rectification of the erroneous information and the closure of any product in his name. The entity did not respond to the summons. Subsequently, he only answered a request from the prosecutor’s office, without referring to the client’s request.
Despite the claims, the plaintiff’s financial record status continued to deteriorate. He went from situation three to four and then to five (5) – unrecoverable – for an alleged debt of 108,000 pesos that he never contracted. Besides, The defendant entity attempted to communicate with the claimant’s relatives, including his parents, his son and his ex-wife, to demand payment of the debt..
This negative rating in the records had direct consequences: The banks in which the plaintiff was a client had to recategorize him in situation fourwhich affected his credit profile and prevented him from obtaining limit increases on his credit cards. The plaintiff alleged that he suffered financial and moral damages, in addition to the violation of his rights as a consumer.
The banking entity defended itself by maintaining that the plaintiff was listed as the owner of an account and two credit cards, whose consumption generated the claimed debt. According to the entity, the contracting had been carried out by telephone and there were no formal communications that warned of possible identity theft.
The bank also denied having reported the claimant as a debtor in the official records and questioned the causal relationship between the event and the damages claimed. He clarified that he tried to resolve the conflict, but that the actor never appeared in person at a branch.
During the process, documentary and informative evidence was produced that confirmed the existence of the criminal complaint, the irregular opening of the account and the receipt of the document letters by the entity. The file included certificates of communications and letters sent by the Central Bank.
The first instance ruling considered it proven that the banking entity had informed the plaintiff as a debtor for a prolonged period, despite being notified of the complaint for identity theft. The judge understood that the bank breached its duty of security and that its negligent actions generated consequences that exceeded normal contractual risks.
The ruling sentenced the bank to pay three million pesos in moral damages and five million pesos in punitive damages. In addition, it ordered that interest be calculated on the amount for moral damage at the active rate of the Banco de la Nación Argentina, capitalized only once from the notification of the claim.
The bank appealed the ruling, objecting to the attribution of liability, the existence of non-material damage, the capitalization of interest and the fine for punitive damage. He also questioned the imposition of procedural costs at his expense.
Chamber E of the Chamber analyzed the controversy and ruled out the grievances of the banking entity, ratifying the existence of identity theft and the negative impact caused by the improper inclusion in debtor records. The court evaluated the documentary evidence and the attitude of the bank, that only responded to judicial requests and did not solve the problem through extrajudicial means.
Regarding non-pecuniary damage, the Court held that the entity’s conduct was sufficient to generate considerable non-pecuniary damage. The need to initiate judicial and criminal actions, added to the persistence of negative information, generated a state of anxiety and anguish in the plaintiff, which justified the compensation awarded.
Regarding the capitalization of interest, the court confirmed that current regulations authorize the accumulation only once when the obligation is claimed judicially, as occurred in this case.
Regarding the punitive damage, the Chamber revoked the conviction. The court explained that this sanction only applies in the event of conduct qualified by fraud or gross negligence, or when the supplier obtains unjustified benefits through its actions. Although it recognized the breach of legal and contractual duties, the court understood that the entity’s actions did not reach the severity threshold required to apply this exemplary sanction.
Finally, the Chamber maintained the imposition of costs borne by the banking entity, considering that it was substantially defeated in the process.
