Bank fraud: victims only have thirteen months to react

LThe Court of Cassation has just issued two very important decisions for bank clients: those taking legal action to obtain compensation “unauthorized payment transaction” (phishing, falsified transfer) can only invoke the regime of “special” liability, defined in articles L133-18 to L133-24 of the Monetary and Financial Code, and not the regime of contractual liability under general law established by the Civil Code.

Mr. X, although a lawyer by profession, found this out to his cost in the following circumstances. In 2017, he asked the savings bank to refund the sums that his ex-wife, an employee of the bank, had deducted from his account between 2007 and 2011 thanks to a duplicate of his bank card that he discovered in 2014. He criticizes the bank for issuing the duplicate without his consent , and believes that it will benefit from the five-year limitation period established by the Civil Code (Article 2224).

On April 7, 2022, the Court of Appeal of Nîmes considers his request inadmissible: in fact, he compares debits to “unauthorized payment transactions” and thinks that Mr. X could only the bank by using the Monetary and Financial Code.

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However, if this set of texts is very protective of the client because it requires the banker to return the money “the amount of the unauthorized payment transaction immediately” after being informed, without the client having to prove an error, requires him to respond ” within thirteen months from the date of write-off, under penalty of execution » (Article L133-24). What Mr.

Legal certainty

The Court of Cassation to which he referred approved the decision on May 2 (2024, 22-18.074). It recalls that it was the Court of Justice of the European Union (EU) that ruled on 2 September 2021 (DM and LR v. Caisse régional de Crédit Agricole Mutuel, C-337/20), then on 16 March 2023 ( ZG v. Beobank, C-351/21) that only this liability regime resulting from the 2007 Directive should be applied.

According to her, the preservation of alternative national regimes would be contrary to the aim of “Legal certainty” sought by the EU legislator who created “a single market for payment services that will replace the twenty-seven existing national systems whose coexistence has been a source of confusion”.

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For the same reason, on March 27 (2024, 22-21.200), the Court of Cassation censured the appeal judgment from Metz, which ordered the bank to pay “unauthorized payment transactions”judging that she had “failed to fulfill his contractual duty of vigilance”faces a transfer order representing a “apparent anomaly”.

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