The loan was returned for a new consideration – Newspaper Kommersant No. 10 (7455) dated 01/20/2023
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Bank customers have a real chance to challenge remotely issued loans issued to them by fraudsters using social engineering. Recently, the Supreme Court (SC) sent for a new trial the case of a client of one of the banks, who challenged a similar case. Experts emphasize that earlier in such disputes, the courts usually took the side of banks and admit that credit institutions will eventually have to reconsider their approaches to protecting customer transactions.
On January 17, the Supreme Court, in fact, sided with the client in a dispute with a bank over a loan agreement drawn up by third parties through an Internet bank using SMS codes. The plaintiff’s complaint was satisfied, the decision of the court of first instance, as well as the appeal and cassation rulings were canceled, Kommersant clarified in the Supreme Court, the case was sent for a new trial to the court of first instance.
In March 2020, a client of HCF-Bank, being a user of its electronic services, informed third parties by phone of two SMS codes. Using these codes, the bank remotely concluded an insurance contract with the client and approved a loan in the amount of more than 200 thousand rubles. at almost 19% per annum. The money was then withdrawn to an unknown account.
The client applied to the court with a request to invalidate the loan agreement, claiming that she did not conclude a deal. Three instances refused, emphasizing that the parties must maintain confidentiality regarding the SMS code. The client challenged the findings of the lower courts in the Supreme Court, stating that she did not intend to conclude a deal and confirmed the code “by accident”.
In HCF-Bank, they consider the client herself to blame for the fact that third parties took out a loan for her. When applying for loans through remote banking channels, secure services (personal account) are used, the client receives several SMS messages indicating the purpose of the transaction, and they always begin with the words “Do not tell anyone the code …”, explained Kommersant in the bank. But in this case, the client herself called the codes to the scammers, they added there.
Such cases are not uncommon for the Russian market. According to independent expert Andrei Barkhota, out of 5 million applications for consumer loans submitted remotely, about 2 million are satisfied per year. The share of fraudulent loans in the total number is up to 10%, in terms of volume – up to 3%, he adds. However, so far such cases have not gone beyond a rehearing. With the exception of isolated cases, most often the courts refuse to recognize transactions as invalid in the absence of facts confirming the commission of fraudulent actions against the client, Dmitry Gorbunov, partner at Rustam Kurmaev and Partners, notes.
Experts believe that the new decision of the Supreme Court may change judicial practice and force banks to reconsider approaches to ensuring the security of transactions. “The position of the client has a legal perspective. Even if we recognize the message of the code as an analogue of the signature, then in this case the code was reported to the bank not by the client, but by fraudsters, that is, by third parties, – explains Victor Dostov, Chairman of the Board of the Association of Participants in the Market for Electronic Money and Money Transfers. happened, and therefore there really is no contract.” However, this must be proven in court.
Lawyers note that the position of the Supreme Court is important when lower courts make decisions. Private lawyer Guzel Zhubanova emphasizes that the conclusions of the Supreme Court may change the practice of considering issues about victims of telephone fraud – now the client’s rights can be protected by recognizing the loan agreement as not concluded or invalid, that is, the victim will not need to repay the debt. According to Dmitry Gorbunov, this will be taken into account only “in cases with similar circumstances”, for example, clients of the same bank.
In general, the profile regulator and banks continue to hope for the attentiveness of citizens. The Central Bank once again recommended “never and under no circumstances disclose personal data, bank card details, SMS codes, secret words.” Director of the Retail Risks Department of Zenit Bank Alexander Shornikov adds that banks are improving remote banking security systems to combat fraudsters, introducing verification and authorization procedures (including biometrics), which can reduce the number of such incidents to a minimum level.
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