What is the bank’s responsibility when a saver is defrauded?

LFraudsters have “ constant ingenuity »: this finding was made on June 12 by the heads of the joint departments of the Office for Prudential Regulation and Resolution (ACPR) and the Authority for Financial Markets (AMF), responsible for protecting the interests of clients from the banking, insurance and savings sectors, when they presented their report for 2023 .

Scammers approach savers on the Internet – often single people – and convince them to deposit money into fake savings accounts on Forex at a whopping rate of 9%. (contraction Foreign exchange market, “currency market”) or the cryptocurrency market. They also lead them to invest in projects presented as extremely profitable: car parks equipped with electrical terminals, places in accommodation facilities for dependent seniors (Ehpad), hydrogen, etc.

Those who succumb to fraudsters, despite the preventive campaigns carried out in particular on the abe-infoservice.fr website, will never get their funds back.

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They can only turn against their bank and blame it “breach of the contractual duty of vigilance”in the face of movement “unusual” Or “unnatural” from their account: the transfer of a very large amount in relation to their resources, their assets or the profile of a prudent person who does not take risks…

Consistent operation

The bank subsequently replies that it only executed the order without any apparent anomaly and that it has no commercial interference in the affairs of its clients.

He then calls out a “failure to exercise heightened vigilance”as imposed by the Monetary and Financial Code (Articles L561-5 et seq.), in case of suspicion of money laundering and terrorist financing: the bank must ensure that the operations of its clients are in accordance with their profile, otherwise they must not carry them out.

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On the one hand, however, fraud is not always synonymous with money laundering or terrorism.

On the other hand, from April 28, 2004 (02-15.054), the Court of Cassation banned the proceedings on this basis: Marielle Cohen-Branche, then the reporter of his judgment and today the mediator of the AMF, in her report for 2023: ” The fight against money laundering does not protect individual interests, but the general interest. »

This jurisprudence, ME Arnaud Delomel, a lawyer at the consumer protection association ADCFrance, which specializes in the fight against international fraud, disputes this: “It is not based on any text: contrary to what the court judges, it is not because the client must not be informed of suspicious transactions that Tracfin reports that it has no right to invoke the failure of the bank”he says.

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