Haku

FINE-011536

Tulosta

Asianumero: FINE-011536 (2018)

Asiaryhmä: Tilinkäyttö ja maksaminen

Ratkaisu annettu: 08.10.2018

What is the division of responsibility between the customer and the bank in relation to the payment transactions made with the customer’s card, which have been contested by the customer? Unauthorized use of a card. Gross negligence of the card owner.

Account of the case

The Customer contests the three payment transactions that were made with his Visa Electron card in a bar in Saint Petersburg between 11:15 PM on 7 January 2016 and 03:58 AM on 8 January 2016 (Finnish time) and approved with the card’s PIN, for a total value of EUR 825.56. The card had been blocked on 10 January 2016 at 09:43 PM due to the Customer’s blocking notification.

Customer’s complaint

The Customer complains that he was deceived by the bar in Saint Petersburg.The Customer made three transactions with his card for 279,11 euros ( 18.720RUB), for 234,54 euros (15730 RUB) and for 328,01 euros (22000 RUB). In addition he made two transactions with his credit card from Bulgaria for 48500,00 RUB (01:12) and for 29700,00 RUB (00:39). Thus, the total amount of loss was around 2200 euros. That constitues a classical deception Russian scheme for tourists who do not know well the country and who were taken to an unknown bar, skilfully planned beforehand by swindlers.

The Customer was deceived by the merchant and was not informed in advance of those exclusively high amounts which were a really great surprise for him after he checked his card statement afterwards. Furthermore, the Customer would like also to point out that he was overcharged for goods or services that he never ordered or consumed at the bar: for example – rent for apartment, karaoke, service fee. Some of the drinks he never ordered for this high price. Obviously, the waiter brought the most expensive alcohol. The Customer was too frightened and scared to deny payment, so he decided to pay for those goods/services. In the invoices of the merchant, presented by the Bank, there is no structured and detailed explanation of the separate goods/services, there is only a total amount mentioned.

Two people, who were probably part of the scam scheme, whom the Customergot acquainted with the same evening, played a trick on him bringing him into a drunken state and forcing him to pay their own five separate bills for articles/services he didn't consume or order. The products don´t correspond to his order.

The Customer is of the opinion that at least partial or full refund is fair in this case in accordance with the Finnish Consumer Protection Act, because he is extremely dissatisfied with the merchant service at the bar that overcharged on the bill completely unfairly (with exceptionally high amounts for articles not consumed). The Customer was not able to reach the merchant and settle this matter with him. The Customer didnt´t receive from the merchant in a clear manner all details about price and menu before accepting the payment transaction. There were many hidden fees, incorrect and bad service and unrealistic high bill. In this regard, as a compromise solution, the Customer would like to make a partial reclamation of the bill and ask for at least half refund.

Bank’s reply

The Customer has requested full reimbursement of the unauthorised transactions made with his card, totalling 825,56 euros. The contested transactions have been made before the card was closed on 7 January between 23.15 and 3.58 (Finnish time). The card was closed at 21.43 on 10 January 2016. The transactions were made with the original card.

The Customer visited a bar at night in Russia. The account transactions indicate that, before the contested transactions in question, there were no transactions made by the Customer himself in connection of which the Customer’s PIN could have been fallen into the hands of a third party. According to the Customer, the card was in his possession the whole time. The Customer says to have made purchases at a night club and served drinks to two people that had joined him. He also says to have been heavily intoxicated by alcohol. In the Customer’s view, he was charged purchases he had not ordered and he was not told about the high prices of the drinks and other purchases beforehand.

The Bank complained about the contested transactions to the seller. The seller submitted a statement to the Bank on the transactions. All the purchases made were approved with a secret PIN and the original card was there. The Customer contests all the transactions made at the bar, although he clearly says to have made card purchases during his stay at the bar.

In the Bank´s opinion based on the Customer’s report, the Customer himself made the purchases in question without first checking the currency and payment amount marked on the transaction before keying in the PIN. Similarly, he did not check the price of the products he bought before making the orders. Thus the Bank considers that he has acted against the payment services act and the Bank’s card terms and conditions with gross negligence and that he himself is fully liable for the contested transactions.

Further clarifications acquired

In addition to the briefs of the parties in this complaint case, FINE has been provided with the following document::
- Bank’s terms and conditions applicable to cards 01.2018
- List of account transactions

Recommended solution

Sections of applicable law and terms of Agreement

Chapter 6 Section 53(1) of the Finnish Payment Services Act reads as follows: A payment instrument holder must use the instrument in accordance with the terms and conditions governing the granting and use of the payment instrument. […]

In accordance with Bank´s terms and conditions:

3. Cardholder’s duties and liability

3.1. Safeguarding of the card

The cardholder undertakes to safeguard his or her card and PIN. The cardholder must keep his or her card and PIN in separate places so that they cannot come into possession of a third party and be used together. The cardholder is to take all actions regarded reasonable to safeguard the card and PIN and keep them in separate places to prevent the card or PIN from coming into the knowledge or possession of a third party. The cardholder undertakes to destroy the PIN sent by Nordea and not to write down the PIN sent by Nordea or selected by the cardholder in a way that is easily recognisable. The cardholder is responsible for regularly verifying on the basis of conditions prevailing at any given time that the card is in a safe place. When keying in the PIN, the cardholder is responsible for shielding the keyboard so that no third party can view the PIN used. […]

3.4 Cardholder’s liability

The cardholder undertakes to pay the debt incurred from purchases, cash withdrawals, recurring payments and other card transactions to the Bank, or The company that has granted another card facility by:

  • accepting the card transaction, for example, by confirming it with the card’s PIN […]

 

3.5 Card use

[…] Before accepting a card transaction by entering the PIN […] the cardholder must check that the currency, amount and payment method recorded for the transaction are correct. […]

3.9 Card misuse

The cardholder's and account holder's liability for the illegal use of a card ends when the banks' joint blocking service has received a notification of the loss of the card or PIN or of them falling into the wrong hands or of their illegal use, unless the card holder has intentionally made a false notification or otherwise acted in a fraudulent manner.The cardholder and account holder are responsible for the illegal use of the card only if
• the cardholder has given the card or PIN to a third party, or
• the card has fallen into the hands or the PIN into the knowledge of a third party due to the cardholder’s negligence to fulfil his or her obligations under section 3.1 of these terms and conditions, or
• the cardholder has failed to notify Nordea in the previously described manner of the loss of the card or of the card or PIN falling unlawfully into the hands of a third party or of their illegal use immediately after noticing it.

In such a case, the customer’s liability is restricted to 50 euros, unless otherwise provided below.

However, the cardholder's and account holder’s liability for the illegal use of the card is not restricted when
• the cardholder has given the card or PIN to a third party, or
• the cardholder has made a false notification, or
• the cardholder has acted fraudulently, deliberately or with gross negligence. […]

Chapter 7 Section 7 of the Consumer Protection Act reads as follows:

For the purposes of this chapter:

[…]

(3) goods-or-services-related credit means consumer credit granted, for the acquisition of consumer goods or services, by the seller or service provider itself or by another business on the basis of an agreement concluded with the seller or service provider or under other arrangements for the financing of consumers;

[…]

Chapter 7 Section 39 of the Consumer Protection Act reads as follows:

Where a consumer has the right to withhold payment or to receive a refund, compensation or another money payment from the seller or the service provider on the basis of a breach of contract of the latter, this right shall apply also in respect of the creditor who has financed the purchase or service. However, the creditor shall not be liable to pay to the consumer more than what he received from the latter as payment.

If the seller repossesses the purchased goods or if the sale is otherwise cancelled by agreement between seller and consumer, the consumer may invoke the accounting of the repossession or cancellation of the sale also against the creditor who has financed the sale. However, the consumer shall not have this right if:

(1) the creditor has, in good time and in a clear manner, notified the consumer that the seller does not have the right of repossess the goods or any other right to dispose of the agreement and, in case the subject-matter of the sale is by law to be registered, the creditor is entered in the register as the owner;
(2) the creditor can otherwise prove that the consumer was aware of the restriction of the rights of the seller.

Evaluation of the case

On the basis of the report concerning the case, FINE considers it indisputable that it was the Customer who made the contested purchases at issue with his card and approved them with the card’s PIN. FINE considers it possible that in this case, the Customer approved charges that he did not find wholly justified as to their amount or that the Customer was misled to approve, or inadvertently approved, charges that were larger than he understood at the time. Neverthe-less, since the Customer himself approved the card transactions with his PIN and thus gave the Bank his approval for charging these card transactions to his ac-count, the case does not amount to an unauthorized use of the card as referred to in the Act on Payment Services or the terms and conditions of the card, which means that in the relationship between the Customer and the Bank, it is the Cus-tomer who is wholly responsible for those payment transactions that he has ap-proved.

For the sake of clarity, FINE also notes that since the Customer has referred to the dishonesty of the payee, the case might fall under the aforementioned provi-sions of the Consumer Protection Act, according to which the entity granting a goods-or-services-related credit – such as a general credit card – is jointly and severally liable, with the seller or the service provider, for the latter’s breach of contract. In this case, however, the Customer made the purchases he contested with a debit card linked to his account. This means that the Bank has not acted as creditor in the payments at issue, and the Bank thus cannot be jointly and sever-ally liable with the seller or the service provider, in the manner described in Chapter 7, Article 39, of the Consumer Protection Act, for any breach of contract by the latter. FINE has thus not deemed it necessary, for the purposes of resolv-ing the question of responsibility between the Customer and the Bank, to further assess whether the report concerning the case provides grounds to consider this an instance of a breach of contract by the company that received the payments made by the Customer.

Final outcome

Given the above, FINE does not recommend a compensation in the case.

FINE

The Finnish Financial Ombudsman Bureau

Chief of department Sainio
Presenting official 
Hidén

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