2023-11-02 16:25:11
The coup took place in June 2020 and the decision that won the case for the elderly came from the Superior Court of Justice (STJ) this October 2023
The criminals called from a number that simulated the bank’s and asked for updates on the registration of the joint account of retiree Ageu Gonçalves da Silva, 75, a former Civil Police employee of the Federal District, and his wife, Adilma José de Sousa Silva, 70. , including the increase in the transaction limit. Minutes after the call, all of the couple’s money, R$8,820.80, had been used to pay the fraudsters’ bills. They also used the elderly’s data to take out a loan of R$60,000 and to spend R$8,000 on their credit card.
It was a long legal dispute before they managed to get their reserves refunded and the loan contract cancelled. Although it detected the suspicious transaction, the bank refused to return the money. The coup took place in June 2020 and the decision that won the case for the elderly came from the Superior Court of Justice (STJ) in October 2023.
“How are you going to pass on the responsibility for a debt to a person who suffered a blow?” asks lawyer Fabrício Magalhães de Oliveira, who represents Ageu and Adilma in the case.
Residents of a satellite city in the Federal District, they live off Haggai’s retirement. The woman has no income. The money in the account was used by the criminals to pay serial bills from the São Paulo State Finance Department, which was completely atypical for the couple’s spending patterns.
“It was easy for the bank to identify the fraud and block the account, but security measures were not adopted. They lost R$8,000 overnight, having commitments to cover, medicine and health insurance to pay for. Whether you like it or not, the person is very shaken”, continues the lawyer.
When judging the case, the Third Panel of the STJ set an important precedent: the bank has a duty to identify and prevent transactions that do not match the customer’s profile and can be held responsible when fraud occurs.
Minister Nancy Andrighi, rapporteur of the process, argued that banks, when allowing easy contracting of services through social networks and applications, have a duty to develop security mechanisms.
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“The absence of verification and approval procedures for transactions that appear illegal corresponds to a defect in the provision of services, capable of generating objective liability on the part of the bank”, he stated.
The former minister of the General Comptroller of the Union (CGU), Valdir Simão, partner at Warde Advogados, explains that banks may be ordered to compensate customers in the event of losses caused by account fraud.
“Banks are fully capable of complying with this decision because the compliance and money laundering prevention system of Brazilian banks is one of the most advanced in the world. And the atypical nature of financial transactions can be tracked and monitored”, argues the former minister.
Mechanisms for analyzing the consumption and expense profile of account holders have already been used by banking institutions, recalls lawyer Rodrigo Forlani Lopes.
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“It is common nowadays to receive an alert from a bank questioning whether a certain transaction or purchase was actually made by the account holder, as, in addition to protecting the consumer, this conduct is part of the banks’ own loss reduction policy”, highlights the partner from the Machado Associados office.
Lawyer Flávia Pietri, a specialist in Digital Law, believes that the STJ’s decision helps to regulate the change in the provision of internet banking services.
“The measures seek a balance between the infinity of technological innovations and their safe use, necessary contours considering the speed with which they have been brought into business conditions, including leveraged by artificial intelligence, which, in order to be beneficial, in addition to rules, require the creation of fully feasible mechanisms for said security”, explains the partner at Nascimento e Mourão Advogados.
Criminalist Lucie Antabi, specialized in economic Criminal Law, recalls that the Consumer Protection Code is applicable to financial institutions and already had predictions along the lines of what the STJ has now decided.
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“Evidently, the absence of verification and approval procedures for atypical transactions that appear illegal corresponds to a defect in the provision of services, capable of generating objective liability on the part of the financial institution. And, at this point, it is noteworthy that only financial institutions have the appropriate means to refuse these atypical transactions”, says the lawyer at Damiani Sociedade de Advogados.
It is the banks’ duty
Verify the regularity and suitability of customer transactions;
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Identify financial transactions that clash with the account holder’s profile;
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Develop mechanisms to make fraud difficult.
Anti-fraud system
The Brazilian Federation of Banks (Febraban) states that the banking network’s investments in fraud prevention and security systems are around R$3.5 billion per year.
The mechanisms include everything from monitoring banking transactions to more robust requirements for proof of identity, as well as awareness and enlightenment campaigns for the population.
“Currently, having access to photos, documents and information is not enough to take out a loan or open an account. Financial institutions have robust identification and security processes that prevent this contracting without the contractor’s knowledge and confirmation of all agreed conditions”, states Febraban.
How to protect two hits?
Be wary of exaggerated advantages or advance payment requirements, whether for IOF, registration fees or advance installments;
Never provide a password, card number or transfer;
Do not close the deal over the phone. Request written proposals;
When receiving a suspicious call, contact the financial institution through official channels.
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