Banks must reimburse customer for Pix scam, understands TJ-SP

The TJ-SP (São Paulo Court of Justice) understood that banks are responsible for preventing financial fraud involving scams such as motoboy and Pix.

In guidance given to the magistrates, the Justice reinforced the idea that victims are a vulnerable part, providing greater guarantee for them to be reimbursed by financial institutions in cases of atypical banking transactions.

The understanding is from the Private Law section of the TJ-SP, which approved six new statements to guide the judgment of cases involving theft and bank fraud cases. In addition to bank crimes, the statements guide decisions related to the extrajudicial collection of prescribed debt, cargo theft and canceled consortium quota.

The text was signed by the judge Berretta da Silveira and published in the Diário da Justiça Eletrônico on October 17th. According to the decision, the conclusion is intended to provide “legal security and stability” in the actions judged by the São Paulo courts.

According to lawyer Leo Rosenbaum, a specialist in consumer law and a partner at Rosenbaum Advogados, this understanding paves the way for jurisprudence and also serves as a reference for Courts of Justice in other Brazilian states.

Until then, the cases judged in financial fraud actions followed the guidance of the STJ (Superior Court of Justice) of 2011, whose thesis was that the consumer was a vulnerable part of the relationship and the banks had strict liability in cases of fraud and crimes committed. in banking operations, which resulted from errors coming from the branches.

However, the thesis did not foresee crimes involving virtual scams – disseminated with the advancement of technological resources, which caused legal confusion. In many cases, victims were blamed for the scams.

Scams involving Pix should be avoided by banks

With the publication, the court established the understanding that banks are responsible for detecting and preventing atypical financial transactions in the victims’ accounts. Among the most common scams are those involving Pix, an instant transfer system.

Usually, the crime occurs when the citizen has his cell phone stolen or stolen and criminals discover the passwords of bank applications and other financial institutions, making transactions to steal the victim’s money.

For Justice, it is the obligation of banks to have a security control that avoids this damage to customers, detecting transactions that are out of the customer’s routine — for example, an account holder who only handles amounts less than R$ 1,000 transfers R$ 10 at once thousand.

In the Judiciary’s understanding, this type of transaction should be recognized as strange and prevented by the banking company.

“But if the bank does not block the transaction, the guidance is for the first degree judges, and even for the judges themselves, to judge this type of case favorably to the consumer”, says Rosenbaum.

Guidance includes motoboy scam

According to one of the statements published by the TJ-SP, avoiding the criminal practice known as the motoboy scam is also the responsibility of financial institutions, which can be held liable for material damages if proven failures in the provision of services and safety, in addition to disrespect for the account holder profile.

In the motoboy scam, an embezzler calls the victim as if he were a bank employee who identified a suspicious or irregular transaction in the account. He asks for a password and other sensitive data and then goes to the person’s house to remove the customer’s card, with the justification that it will be returned to the bank. With customer data, password and chip in hand, scammers make several purchases, generating losses of thousands of reais.

Also in these cases, account holders would not need to prove that they were victims of fraud. It would be enough for the transaction to deviate from the normality of the current account and the responsibility would be attributed to the financial institution. “It is up to the bank to prove otherwise”, says the expert.

Fake Boleto only entails reimbursement if victim proves that fraud came from the bank, says expert

Regarding the fake boleto scam, reimbursement will only be made if the victim can prove that the fraud came from within the bank or through the banking institutions’ own service channels. “That would be very difficult, as the vast majority of these frauds do not come from within the banks”, says the lawyer.

The fake boleto scam is practiced in different ways. The most common is the sending of service slips, of recurring payments, similar to the original. This is possible due to data leakage, in which the embezzler has access to the victim’s information to make a ticket identical to the real one.

Typical transactions should not be refunded, even in the case of scams

In the event that the amounts subtracted from victims through fraudulent actions are compatible with the financial movement of the current account, the Justice understands that the responsibility for reimbursement would not be the financial institutions. In this case, the only possibility of recovering the money would be for the criminal to return it.

“The bank ends up not having responsibility for this type of crime if it’s a transaction that goes within the normality of the movement of your account”, says Rosenbaum.