Santiago Court Suspends CMR Falabella Collections Against Vishing Fraud Victim
The Santiago Court of Appeals upheld a protection action against Promotora CMR Falabella, ordering the cessation of collections and delinquency reporting whilst the case over electronic fraud is resolved.
Court of Appeals Halts Extrajudicial Collection Efforts Against User Victim of Telephone Fraud
According to reports from actualidadjuridica.doe.cl, the Santiago Court of Appeals upheld, by means of a judgment of 22 July in case file No. 4.882-2026, a protection action filed against Promotora CMR Falabella S.A. The court ordered the immediate cessation of extrajudicial collection efforts, the blocking of commercial reports on the debt, the suspension of interest charges, and the removal of the blocking on the applicant's credit card. All these measures shall remain in force whilst there is no final judgment in the proceeding conducted in accordance with Law No. 20.009. The decision was adopted with the dissenting vote of substitute minister Freddy Cubillos Jofré.
Origin of the case: telephone fraud for more than two and a half million pesos
The case originated on 8 January 2025, when the affected party reported having been a victim of a telephone fraud known as vishing. A third party who falsely identified himself as "Francisco Galaez Apablaza"—also referred to as Francisco Galeas Apablaza—, a supposed fraud and risk agent for Banco de Chile, contacted her alleging irregular movements in her accounts. Through this deception he obtained the sixteen digits of the CMR Falabella credit card, the expiry date and the CVC code, and carried out seven transactions totalling $2,499,810.
After filing a complaint over unknown transactions, Promotora CMR Falabella rejected the request to cancel the charges and brought the action contemplated in article 5 of Law No. 20.009 before the First Local Police Court of Recoleta, imputing to the user that she had acted with fraud or gross negligence. At the same time, the company maintained extrajudicial collection efforts, reported the debt to the Financial Market Commission (CMF) and to Equifax, blocked the credit card, and reported the obligation as delinquent.
The applicant's position and CMR Falabella's defence
The user argued before the Court that such actions were unlawful and arbitrary. She contended that, whilst the proceeding initiated by the card issuer itself remained pending before the Local Police Court, there was no indubitable right to demand payment of the debt or to affect her credit history. Consequently, she requested the cessation of collection efforts, the withdrawal of delinquency reports, and the removal of the blocking on her card.
Promotora CMR Falabella argued, in the first place, that the action was out of time, given that the decision to reject cancellation of the charges had been communicated in January 2025. In the alternative, it contended that the disputed transactions were authorised via strengthened authentication mechanisms, which justified the claim before the Local Police Court. It added that the blocking of the payment method responded to security obligations established by Law No. 20.009 and that the reporting of the debt was in accordance with instructions from the CMF.
The court's reasoning: prohibited self-help and breached guarantees
The Court rejected the allegation of being out of time. It noted that the contested acts did not end with the initial rejection of the complaint, but rather corresponded to actions of a permanent character—such as extrajudicial collection efforts and the maintenance of the debt in commercial registers—whose effects renewed themselves whilst such measures persisted.
As to the merits, the court recalled that Law No. 20.009 establishes a special and protective statute that limits the liability of users of payment cards and electronic transactions in cases of loss, theft, robbery or fraud. It specified that, when the issuer believes there is evidence of fraud or gross negligence on the part of the user, it must exercise the action provided for in article 5 of that law so that it is the competent judge who determines such liability. The legal system initially assigns to the issuer the risk arising from fraud, and only a final judgment can definitively shift that responsibility to the user.
On that basis, the Court concluded that, whilst the proceeding before the First Local Police Court of Recoleta remains pending, the existence and enforceability of the debt remain disputed. The tribunal considered that subjecting the applicant to extrajudicial collections, charging interest, blocking her payment methods beyond a circumscribed preventive rationale, and particularly reporting the debt as delinquent to the CMF and Equifax under the classification of "charged off", constitutes a manifestation of prohibited self-help under Chilean law. That conduct, said the Court, inverts by unilateral decision alone of the issuer the order and burden that Law No. 20.009 itself imposes on it in order to shift the risk towards the user.
Breach of constitutional guarantees
The judgment determined that such actions directly and currently injure the constitutional guarantees invoked by the applicant. In the first place, the Court established that the right to psychological integrity enshrined in article 19 No. 1 of the Political Constitution is breached. The persistence of informal collection efforts for a debt arising from a crime of which she was a victim, combined with the damage to her credit reputation and the risk of financial hardship generated by negative commercial reports, is apt to cause the applicant a state of anxiety that exceeds the legitimate tolerance for the vicissitudes of commercial traffic.
In the second place, the Court determined that the right of property guaranteed in article 19 No. 24 of the Fundamental Charter is infringed, inasmuch as an unlawful burden is imposed in advance on the applicant's assets, hindering her access to credit and altering her economic expectations before there exists a definitive judicial ruling on her responsibility in the fraud.
Source: Google News CL — Santiago