Caixa has to return money stolen in a motoboy scam, decides Justice

The First Class of the TRF-3 (Federal Regional Court of the 3rd Region), in São Paulo, ordered Caixa Econômica Federal to return R$ 45,000 to a customer who was a victim of the motoboy scam.

For the judges who analyzed the case, the bank did not prove that the bank account was handled by the customer. As a result, the bank’s provision of services failed, they concluded.

When questioned, Caixa did not respond about the case until the publication of this text.

The account given by the account holder in the action is similar to those of other victims of this type of scam. In June of last year, he received a phone number from a person who identified himself as a Caixa employee. The scammer said the victim’s cards had been canceled and would need to be collected.

After the phone call, a person identified himself as a Civil Police agent, responsible for collecting the cards. He delivered them.

The victim told Justice and the police, when she registered a police report, that after delivering the cards, she suspected it could be a scam and sought the Caixa service center to block them.

In the first instance, federal judge Uilton Reina Cecato, of the 1st Federal Court of Piracicaba, considered that Caixa could not be held responsible for the loss, since the financial transactions would have been made before the customer canceled the cards.

In addition, he did not follow procedures recommended by the bank, such as never giving up custody of cards or data to third parties.

For the TRF-3, however, there was a “security failure attributable to the supplier [a Caixa]which could have required additional identity confirmations to prevent unauthorized entry into its electronic system”.

Federal judge Valdeci dos Santos, rapporteur of the case in court, stated, in the decision, that it is up to the banks to guarantee the security and reliability of the system. He also said that banking activity is subject to the Consumer Protection Code, which provides for the repair of damages caused by defects in the provision of services, regardless of the existence of fault.

“If a subject presents himself at the service desk in a bank branch with a magnetic card that is not his, he will not be allowed to use the account, even if he knows the password,” he wrote.

“Even if the account holder himself presents himself at a branch counter, the clerk will probably require the presentation of a personal document with photo before releasing any cash. Likewise, care is expected from the financial institution when dealing with the account holder through the electronic/telematic media.”

The judiciary has been divided on the responsibility of banks in scams such as the motoboy. In July of this year, the TJ-SP (São Paulo Court of Justice) ordered Bradesco to return the money of a customer who fell for the coup. The victim in this process lost BRL 4,553.

In the TRF-4 (Federal Regional Court of the 4th Region), which analyzes appeals in cases initiated in the southern region, the judges’ conclusion was that Caixa Econômica Federal could not be held responsible for the damages caused to an account holder who lost R$ 25 thousand after falling in that same scam.