Theft from account
In the era of universal access to the Internet and the increasing digitization of life, it is increasingly easier and more convenient to carry out everyday activities via the Internet, such as shopping, payment transactions or deliveries of goods without leaving home.
Unfortunately, along with the development of the above facilities, crime also developed. Online fraud has become an everyday occurrence. Bank account holders are increasingly exposed to the risk of losing funds from their bank accounts due to unknowingly downloaded malware or websites impersonating a courier or bank and asking for bank account login details. The victim of fraud usually realizes that he has been robbed only after losing funds from his bank accounts.
It is necessary that the legal act constitutes a crime related to bank fraud. Pursuant to Art. 46 section 1 of the Act on Payment Services for the occurrence of unauthorized transactions corresponding to the entity (in the case of the bank that maintains the account) and the funds are returned by the deadline that occurs on the day of the event. Unless the Payment Services Act specifies the term “unauthorized transaction”, it includes the term “authorized transaction”. Art W. 40 paragraph. 1 it is indicated that: “The payment transaction is approved, the payment is transferred to the execution of the payment transaction in the manner specified in the contract between the payer and his supplier.” If the notification is submitted on time, the bank is obliged to return the funds by the end of the next day (called the D+1 rule). The bank is released from the above obligation only if there is a justified suspicion that the customer is attempting to extort by reporting to the bank, but in this case he is obliged to submit a notification to the law enforcement authorities.
Unfortunately, in the practice of the banking sector in Poland, banks very often do not fulfill the obligation to return the money, stating that the customer is responsible for the transactions due to “gross negligence”. It should be noted that this is an illegal action on the part of the bank, because the Act in its current wording does not give the bank the authority to independently determine the payer’s liability.
The payer is liable for unauthorized transactions if he or she committed them intentionally or as a result of gross negligence (pursuant to Article 46(3)). However, the above liability of the payer does not release the bank from the obligation to return the money in accordance with the D+1 rule. This means that the bank is first obliged to return the funds, and only then, if it finds that the payer is responsible, should it apply to the bank for a refund in court (and prove the payer’s liability in court). In practice, when banks refuse to return money, they decide on their own who is responsible for the transactions and force their clients to bear the burden (and costs) of proving to the court that the bank is obliged to return the money to them, which they are not obliged to do. entitled. The fact that the bank’s position is unjustified is proven by numerous positions of authorities, including the Financial Ombudsman in the analysis “Unauthorized transactions – principles and main problems”.
Regarding the issue of the payer’s liability for transactions, it should be noted that, contrary to the claims of banks in their responses to complaints, “gross negligence” does not constitute any violation of the principles of prudence. In accordance with the judgment of the Court of Appeal in Wrocław of May 24, 2018, ref. no. VI ACa 217/17: “Gross negligence within the meaning of Art. 827 § 1 of the Civil Code, in the event of unforeseeable damage as a result of an act or omission, may be attributed to a given person only if he or she has breached the basic, elementary principles of precaution. Therefore, it only concerns cases where a person acts in a way that is obviously contrary to safety rules that are commonly known and understood even by people with a low intellectual level. Her behavior should border on deliberate. “Gross negligence” should be clearly distinguished from “ordinary negligence”, i.e. the behavior of a person who foresees the consequences of his action or omission, but expects to avoid them, and when he does not foresee these consequences, although he can and should foresee them. Therefore, it is a violation of a grossly extreme nature. The mere fact of entering your data on a given website or confirming a given transaction with an SMS code does not determine the assignment of this name, although, of course, each case requires an individual analysis. Unfortunately, the banks’ practice of selectively treating the provisions of the Act has led to a situation in which victims of fraud are forced to seek a refund from the bank when the bank refuses to acknowledge the complaint. In this situation, it is necessary to file a lawsuit against the bank for payment.
