What to do if bailiffs have withdrawn money from your card. How to return funds to the account if it is established that an unauthorized debit of funds from a bank card? Why was the money written off?
How to return money to the card?
Question: I have been using the Sberbank Social Card since 2013, and until recently I was happy with everything. But on June 29, 2015, more than ten thousand rubles were illegally written off from my card by unknown persons, within 20 minutes, in several payments. I didn’t receive any SMS messages from Sberbank, I didn’t give the card to anyone and I didn’t tell anyone any information about it. How could this happen? And how to get your money back. This is my monthly pension and I was left without funds for a whole month.
How to return illegally debited funds from a card?
Answer: There are many schemes for unauthorized debiting of funds from bank cards, or rather from card accounts, including fraudulent schemes for debiting funds by stealing bank card data via the Internet or an ATM. Despite the measures taken by banks, the number of fraudulent transactions with bank cards continues to grow, and the methods are becoming more sophisticated. Is it possible to recover lost money? Yes, you can.
Having received an SMS message from the bank about the payment, and having established the fact of unauthorized debiting of funds from the card (card account), the holder of the bank card must immediately send a notification to the bank to reimburse the illegally debited funds, and the bank is obliged to return these funds to the account. This is what Law No. 161-FZ of June 27, 2011 says! But such a return can only be made if the notification is sent “no later than the day following the day of receipt of notification of the transaction from the money transfer operator.”
Due to the lack of SMS messages, your situation does not fall under the usual scheme of actions, i.e. She's out of control! You could not find out in a timely manner about the debiting of funds from the Sberbank-Maestro “Social” card, since Sberbank, for some reason unknown to you, did not send an SMS notification, and as a result, you could no longer notify the bank.
How to return money to the card in your situation? Since time has been lost, it is now necessary to send the bank not the usual notification of an unauthorized transaction, but a statement - a claim for reimbursement of funds to the account, since the unauthorized debiting of funds from the card account was due to their fault. The application must indicate that you did not receive an SMS regarding the debit of funds, therefore, it is possible to find out about the debited funds in a timely manner and notify the bank within the prescribed period in accordance with clause 9 of the Federal Law of the Russian Federation dated June 27, 2011 N 161-FZ "On National payment system" you couldn't. Sberbank must consider your claim and refund the funds, or refuse to return the funds to you, citing some reasons. If the bank refuses to restore funds, a statement of claim is filed with the prosecutor's office.
And one more thing - before receiving your next pension, you should change your card number and PIN code. If you do not have time to replace it, it is better to block the card to prevent repeated unauthorized debiting of funds. You don’t know who carried out the write-off, and you have no guarantee that write-off attempts will not be repeated. This is also provided for by law:
To make it clear why we are talking about compensation for losses caused to you, let's look at how the law talks about this. So, on January 1, 2014, it came into force, which imposes a number of obligations on banks.
Thus, according to the law, operators (banks) must provide their clients with the opportunity to control the progress of each transaction they carry out, namely:
The money transfer operator is obliged to inform the client about the completion of each transaction using an electronic means of payment by sending the client a corresponding notification in the manner established by the agreement with the client (Article 9, Part 4 - N 161-FZ of June 27, 2011).
The money transfer operator is obliged to ensure that the client can send him a notification about the loss of an electronic means of payment and (or) about its use without the client’s consent (Article 9, Part 5 - N 161-FZ of June 27, 2011).The money transfer operator is obliged to record notifications sent to the client and received from the client, and also store the relevant information for at least three years (Article 9, Part 6 - N 161-FZ of June 27, 2011).
If the money transfer operator does not fulfill the obligation to inform the client about the transaction completed in accordance with Part 4 of this article, the money transfer operator is obliged to reimburse the client for the amount of the transaction about which the client was not informed and which was carried out without the client’s consent (Article 9 part 13).
It turns out that the bank was obliged to send you an SMS message, record and store this information for a long time. This is what Sberbank must now prove to you, having received a claim from you. Confirmation of the presence or absence of SMS messages can be provided by the telecommunications company that provides you with cellular services (at the request of the prosecutor's office).
If the bank admits that the SMS message was not sent, then, in accordance with Part 13 of Article of the Law, it is obliged to compensate you for the damage.
Article 9 of the Federal Law of the Russian Federation dated June 27, 2011 N 161-FZ “On the National Payment System” provides a clear procedure for interaction between the bank and the client when using an electronic means of payment without the client’s consent:
In case of loss of an electronic means of payment and (or) its use without the client’s consent, the client is obliged to send a corresponding notification to the money transfer operator in the form provided for in the contract immediately after discovering the fact of the loss of the electronic means of payment and (or) its use without the client’s consent, but no later the day following the day of receipt from the money transfer operator of a notification about the completed transaction (Article 9, paragraph 11).After the money transfer operator receives the client’s notification in accordance with “Part 11” of this article, the money transfer operator is obliged to reimburse the client for the amount of the transaction performed without the client’s consent after receiving the specified notice (Article 9, Clause 12).
The interaction between the bank and the client when an unauthorized payment is detected looks like this:
- The bank processes the payment and immediately sends an SMS notification to the client.
- If the payment was made without the client’s consent, the latter immediately sends a corresponding notification to the money transfer operator in the form provided for in the contract.
- The money transfer operator is obliged to reimburse the client for the amount of the transaction performed without his consent.
Issues of interaction between clients and banks and other payment agents are often of a conflictual nature, and from the very beginning of the formation of a modern legislative framework in this area. Suffice it to recall the situation that was widespread in the 90s, when the courts recognized the obligation to pay taxes as fulfilled only from the moment the corresponding amount was credited to the budget, which allowed unscrupulous banks to use other people's funds with impunity. The situation was corrected only after the intervention of the Constitutional Court of the Russian Federation.
But even today there are many unresolved issues in this area, which is not least due to the intensive development of payment relations (including the use of electronic means of payment), which legislation does not always keep up with.
On September 29, 2011, Federal Law No. 161-FZ of June 27, 2011 (hereinafter referred to as the Law) came into force, which was intended to streamline and change for the better the existing practice of providing payment services. It established the fundamentals of the entire payment system as a whole and adjusted the rules for non-cash payments, as well as the issue and use of electronic money.
One of the most discussed innovations was the provision that comes into force on January 1, 2014. It was called protect operator customers for the transfer of funds against fraudulent activities. The dynamics of growth in cases of fraud with bank cards and electronic money, monitored by the Bank of Russia, confirms that the need for active action in this area is already ripe. If at the end of December 2012 the number of incidents related to violation of security requirements when transferring funds amounted to 1562 , then based on the results of the first half of 2013 it was already recorded 2484 similar cases (the increase was 59% ).
True, this situation is due, among other things, to the improvement in the quality of reporting by reporting operators, as emphasized in the Analytical Review of the Bank of Russia. Experts, however, note that in reality things are even worse, since not all the actions of criminals can be identified.
Please note that if, as a result of an investigation conducted by the bank, it was determined that fraud had occurred and the funds were returned to the client, tax base for personal income tax the latter does not occur. The Russian Ministry of Finance pointed this out in its clarifications, emphasizing that the amount of compensation for damage, provided it is documented, does not constitute an economic benefit.
If a negative decision is made on the application, the bank client may go to court with a similar demand. As a rule, as the main justification for the claim, victims of fraud point to the bank’s obligation to ensure the security of its transactions using modern software and technical security systems. By the way, in accordance with the explanations of the Plenum of the RF Armed Forces, burden of proof compliance with all requirements for banking operations is the responsibility of the bank. In presenting their counter-arguments, banks point to such circumstances as the obligation of the owner of the electronic signature key to ensure its confidentiality (Clause 1, Article 10 of the Federal Law of April 6, 2011 No. 63-FZ ""), the presence in the agreement with the client of a release clause the bank from liability for unauthorized actions of third parties that occurred through the fault of the client, including the transfer of a PIN code to an attacker.
Judicial practice knows both decisions made in favor of the bank card holder, and those contrary to them. Thus, sometimes courts indicate that the bank did not provide technical security bank card issued by him.
But often, even when establishing the fact of using a counterfeit bank card, even in another city or country, the courts do not return unauthorized transferred funds. At the same time, they refer to the fact that, in accordance with the PIN code, the PIN code is recognized as an analogue of the cardholder’s handwritten signature, and the latter did not fulfill his obligation to keeping the code secret. The courts take the side of the bank even when the client was forced to transfer the bank card to third parties and provide the PIN code for it in case of a threat to his life, indicating that a robbery cannot be the basis for placing the burden of negative consequences on the bank and declaring its actions illegal writing off money. By the way, even if a criminal case was initiated regarding the unauthorized withdrawal or transfer of money from a card, and the card holder was recognized as a victim, this will still not be a basis for declaring the bank’s actions illegal.
What will change and at whose expense
According to the Department of External and Public Relations of the Bank of Russia, as of mid-July 2013, only 50% credit institutions informed the Bank of Russia about readiness to fulfill requirements. The remaining banks will have to complete work to prepare for the entry into force of the new rules before November of this year.
In addition, banks have an obligation inform clients about each transaction performed using an electronic means of payment in the manner established by the agreement (). True, it does not specify either the method or timing of sending such notifications.
Let us note that the introduced obligation of the bank to notify the client about transactions performed on the account is not Russian know-how at all. A similar procedure is provided for in Art. 47 Directive of the European Parliament and of the Council on payment services in the internal market. This document establishes the obligation of the payment service provider to immediately notify the client about the withdrawal of the amount from the account after it has occurred. However, banks of EU member countries are given the right to establish in the framework agreement with clients the provision of such information no less frequently than once a month. The provisions of the Directive in this part have been adopted into the legislation of the UK ("The Payment Services Regulations 2009", Article 45, Article 47) and the USA ("Electronic Fund Transfer" (regulation E), paragraph 205.7 (6)). Moreover, according to American law, a financial organization is obliged to send the client information about account transactions once a month, if they were made, and once a quarter, if no transactions were made.
The Association of Russian Banks criticized these innovations. In the certificate for the 329th meeting of the Federation Council of the Federal Assembly of the Russian Federation within the framework of the “government hour” on the issue “On the progress of the implementation of the Federal Law “On the National Payment System,” the organization noted the following.
Quote Igor Kostikov, Chairman of the Council of the Union for the Protection of the Rights of Consumers of Financial Services (Finpotrebsoyuz): However, the client will also have to take similar actions to protect his rights - a mandatory condition for the reimbursement of unauthorized funds written off is bank notification about using the card without the consent of its holder. The bank will need to be informed about this no later than the day following the day you receive notification of the transaction from it (). However, one day will often be objectively insufficient for this - after all, the cardholder may, for example, be on a business trip or in a medical institution at the time of the contested operation. In addition, the question also arises about the method of sending the notification - the only evidence accepted by the courts is still the sending of a regular postal notification in paper form. Looking to the future It is not yet entirely clear with what exact result the provisions will be implemented. Banks predict an increase in cases of dishonest behavior on the part of clients. Indeed, some customers may be tempted to report an unauthorized transaction even if the funds transfer was made by the cardholder themselves. In the language of professionals, this scheme is called "friendly fraud" and it occurs quite often now. Thus, from the prospectus of the Tinkoff Credit Systems bank for the IPO, analyzed by Kommersant, it follows that of all cases of fraud with bank cards, almost a third of cases ( 27,4% ) falls specifically on “friendly fraud”. The second most common operation is using stolen cards ( 16,1% ), followed by banking transactions on accounts opened using someone else’s or forged documents ( 15,3% ), transactions on lost cards ( 14,4% ), card transactions using the three-digit authentication number on the back of the CVV/CVC card ( 13,7% ) etc. By the way, if you turn again to the mentioned EU Directive, you can see an interesting clause. Banks are indeed obliged to compensate for damage caused in the event of an unauthorized payment transaction (Article 60), however, in Art. 61 of the Directive sets out certain rules that affect unscrupulous or careless cardholders. Thus, the client bears costs of up to 150 euros for each unauthorized transaction made as a result of the use of a lost or stolen payment instrument, or if the client failed to ensure the safety of the personalized security features of the payment instrument, or in the event of illegal use of the payment instrument. If fraudulent actions of the client himself are established, then all associated losses will be borne by him. The Directive also provides for the possibility of immediate return of money to the client’s account in the event of a controversial transaction (for example, the client insists on his innocence). If the client’s guilt is proven, his account may be debited for the amount of the refund(note to Article 61 of the Directive). However, there is a possibility that banks will use the clause and carry out formal checks. It is no secret that this practice is common in most banks today - if, following an investigation, it is determined that the correct PIN code was entered, the client is a priori found guilty. Indeed, the holder of a bank card may be careless and keep a note with a PIN code along with the card - in this case, it is unlikely that any bank will agree to reimburse the amount of the stolen money. Similar cases have been recorded, for example, in Arkhangelsk - purse thieves discovered not only a card in stolen things, but also an access code to it. In one case they withdrew 100 thousand rubles, and in the other - 145 thousand rubles. At the same time, scammers engaged in skimming, are able to find out the PIN code, even if the cardholder takes every precaution to keep it secret. The essence of skimming is to install a device on the ATM that reads data from the magnetic stripe of a bank card, as well as a video camera aimed at the keyboard. The first allows you to copy information about the card to make a duplicate, and the second allows you to find out the PIN code. The scammers then make a copy of the card, which can be used to withdraw money from the relevant account by entering the correct PIN. Of course, the police are working to expose the skimmers, but by this time they manage to steal quite a lot. For example, in 2011 in Volgograd, one of the skimmers, having installed special equipment on ATMs, gained access to the PIN codes of more than 80 cards in three weeks and stole a total of 1.8 million rubles. However, sometimes bank clients suffer not only from the actions of fraudsters, but also from the dishonesty of the banks themselves. bank employees, and even student interns. A similar incident occurred in Perm, where a student undergoing practical training at a bank gained access to the personal data of its clients. Using them, the young man and his friends illegally topped up the balance of cell phones from other people’s cards, transferred money from them to “virtual wallets” and made purchases in online stores. The total amount of damage amounted to more than 2.8 million rubles. The court found the young people guilty of committing theft on an especially large scale. Two of them were sentenced to four years and six months in prison, and another was sentenced to four years in prison. The punishment was suspended, and one of the mitigating circumstances was partial compensation for damage. Another unauthorized debiting of money from a card, which was clearly the fault of the bank, occurred in Komsomolsk-on-Amur. The bank issued a credit card to the client, the latter did not activate it, but subsequently funds from this card were transferred to the phone numbers of third parties. The client presented the court with a sealed envelope with a PIN code, and the court, considering his obligation to keep the PIN code fulfilled, satisfied the demands of the injured party. If the bank itself debited the funds from the bank card, then the affected client should also submit a request for accrual interest on the use of other people's money However, cases of satisfaction of such claims have been found in judicial practice since the late 90s. It is not entirely clear how the practice of refunding funds illegally obtained by fraudsters as a result of the so-called "phishing". This scheme involves creating a website that outwardly copies the website of an online store or online payment system, and the money paid by website visitors to pay for goods or services ultimately goes to the attackers’ account. On the one hand, the victims themselves voluntarily transfer money, but on the other hand, they become victims of fraud. Obviously, in order to determine whether a citizen has exercised due diligence ( , ), the degree of similarity between the original site and the duplicate site will matter. Thus, the rules for informing the client about completed transactions are clarified. It is provided that the bank's obligation to report a transaction is considered fulfilled after sending a notification in accordance with the information available to the bank to communicate with the client. Payment operators are thus insured against the consequences of inconsistencies in the reality of the information provided by the client. However, the most important change proposed by the National Payments Council is change notification value client about the completed transaction. The obligation to inform the card holder about transactions performed on it in accordance with the bill remains, however, failure to comply will no longer entail negative consequences for the bank in the form of mandatory reimbursement of funds. It is assumed that the period for informing the client cannot exceed 30 days. Also up to 30 working days it is intended to extend the maximum possible period within which the client can submit an application for reimbursement of the transaction amount due to an unauthorized transaction on the account. The money transfer operator is asked to be given the right to establish restrictions when performing transactions with an electronic means of payment. We are talking, first of all, about setting a limit on the transfer of funds and cash withdrawal. Finally, the bill proposes to establish mandatory claim procedure dispute resolution - with this scheme, going to court becomes possible only if the money operator refuses to compensate for losses or if there is no response from him within a certain period. Work to improve legal regulation in this area continues today. As it became known in mid-October of this year, the Russian Ministry of Finance and the Central Bank of the Russian Federation agreed on further amendments to. It is expected that the main changes will be an increase in the period for notification of the bank by the client about an unauthorized transaction ( from one day before 10 days), as well as establishing a period for reimbursement of funds for such transactions ( 30 days for domestic transactions and 60 days– for cross-border transactions). The bill is currently being considered by the relevant ministries and has not yet been submitted to the State Duma. However, as rightly noted by the first vice-president of the Association of Regional Banks of the Russian Federation Alexander Khandruev At a round table in the RIA Novosti press center, held on October 21, 2013, the State Duma is unlikely to radically change the philosophy and ideology of this article. Let us note that the parliament and the head of the country have little time left for this. The need for detailed and fair legal regulation becomes more urgent the more intensively the segment of non-cash payments develops. According to the Bank of Russia, as of July 1, 2013, more than 205 million bank cards, while the working-age population as of January 1, 2013 was 87 million people And the volume of transactions made using cards (including abroad) in 2013 was almost 12 billion rubles. In addition, on October 11 of this year, the Russian Ministry of Finance posted for discussion a bill limiting from January 1, 2014 cash payment limit with the participation of citizens, if such payments are not related to their business activities (in the period 2014-2015, the limit will be 600 thousand rubles., and from January 1, 2016 – 300 thousand rubles.). This rule is supposed to be applied to the payments of citizens, if this is not related to their business activities. The agency emphasizes that the innovation is a painless measure for the everyday life of consumers, since it will only affect the purchase of expensive goods - cars, real estate and luxury goods. In addition, the Russian Ministry of Finance also proposes to oblige all sellers to accept payment cards for payment. All this requires the most careful legal regulation - both to protect the rights of clients and to prevent their dishonest behavior. By the way, another bill is currently at the discussion stage, which provides for tougher criminal liability within the framework of "Production or sale of counterfeit credit or payment cards and other payment documents". According to analysts from the Russian Ministry of Internal Affairs, in the first half of 2013 alone, it was registered 3618 similar crimes, while for the whole of 2012 the police identified 3013 crimes classified under this article. The document proposes to expand the list of cases of application, as well as to increase the maximum term of imprisonment under ( "Illegal access to computer information") from two to four years. Relationships involving the transfer of funds are always fraught with the possibility of conflicts, and especially when fraudsters intervene in these relationships. The provisions of Article 9 of the Law were intended to resolve a significant part of the existing contradictions, but in the current version they do not completely satisfy either the banks or their clients. It is unclear whether the legislator will have time to adjust the provisions of this article before it comes into force, but the need for some amendments is already obvious. Documentation |
Bank cards are classified as electronic means of payment. The legislation establishes a number of obligations for the bank and the client, the compliance or non-compliance of which determines whether the amounts stolen from his account will be returned to the client or not (Clause 19, Article 3, Article 9 of the Law of June 27, 2011 N 161-FZ) .
1. Informing about transactions with accounts
The bank is obliged to inform the client about each transaction made using his bank card by sending the client a corresponding notification in the manner established by the agreement with the client (Part 4 of Article 9 of the Law of June 27, 2011 N 161-FZ). The bank’s methods of sending notifications are different: SMS notifications, e-mail, information via Internet banking. At the same time, at least one of the methods of information must be free for the client.
2. Procedure in case of unauthorized access of third parties to your accounts
If you find transactions on a bank card that you did not perform (hereinafter also referred to as unauthorized transactions), we recommend that you adhere to the following algorithm.
Step 1. Make sure that you really did not perform this operation
There can be many reasons for questions about debiting money from a card. For example, when making a purchase using a bank card, the money is sometimes not debited immediately, but is only blocked in the account. The actual write-off occurs within a few days. But there are cases when a longer period of time passes from the date of purchase to the date of write-off, sometimes up to two to three weeks. Accordingly, it is not always possible to immediately remember that money was written off for a previously made purchase.
There are also cases when SMS messages about completed transactions arrive with a delay of several hours due to technical reasons, which can also raise suspicions of misuse of your card by third parties.
Step 2. Immediately call the bank’s contact center
Your duty is to immediately notify the bank if the card is lost or used without your consent after discovering the relevant fact, but no later than the day following the day you receive notification of transactions from the bank (Part 11, Article 9 of Law No. 161-FZ).
The contact center phone number is always indicated on the back of the card. You must immediately notify the operator about unauthorized transactions on your card, and also ask to block the card. Perhaps the contact center operator will ask you to perform some other actions.
Step 3. Contact the bank branch with a complaint, and, if necessary, also file a police report
If there are suspicions that fraudulent transactions have been committed with your card, you should contact any police department and write a statement with a request to initiate a criminal case regarding the commission of fraudulent actions (Part 2 of Article 141, Part 1 of Article 144 of the Code of Criminal Procedure of the Russian Federation).
An application to the bank about disagreement with the transactions performed can be drawn up in the form provided by the bank or in free form. At the bank's request, additional documents must be attached to the application depending on the nature of the transaction performed using the bank card (for example, a resolution to initiate a criminal case for fraudulent transactions).
Sometimes money is written off from the card due to technical glitches. For example, a transaction may be doubled if, when you paid for a purchase, two identical amounts were debited from your card to the same seller, or when making a purchase, the terminal issued a receipt indicating an error/cancellation of the transaction, but the money was still debited. In this case, you must attach the receipts you have to the application.
Step 4. Wait for the results of the bank’s review of your claim
The legally established period for the bank to consider a claim is no more than 30 days from the date of receipt of the claim, and when carrying out international transactions - no more than 60 days from the date of receipt of the claim. An agreement between you and the bank may establish a shorter period (Part 8, Article 9 of Law No. 161-FZ).
If the decision is positive, the funds will be returned to the bank card account or another account specified by you in the application. In case of a negative decision, you must be provided with a reasoned refusal. At your request, the result of the consideration of the claim can be provided to you in writing.
Step 5. Go to court
If funds were debited from a bank card without your consent due to the fault of the bank, you have the right to go to court with a claim against the bank from whose card the funds were debited for compensation for losses, as well as interest for unlawful withholding of funds (clause 1 of Art. 11, Article 395 of the Civil Code of the Russian Federation; paragraph 1 of Article 17 of the Law of 02/07/1992 N 2300-1).
3. Security rules when using bank cards
Often the reason for fraudulent transactions is non-compliance with security rules by the clients themselves. In this case, it is extremely difficult to return the written off money. In this regard, the Bank of Russia recommends, in particular (Letter of the Bank of Russia dated October 2, 2009 N 120-T):
1) never disclose your PIN to third parties, including relatives and employees of a credit institution;
2) remember the PIN or store it separately from the bank card in an implicit form and in a place inaccessible to third parties;
3) do not transfer the bank card to third parties for use;
4) upon receipt of a bank card, sign on the back of it, if required (which will reduce the risk of it being used without your consent).
Every year, thousands of Russians who use payment cards become victims of fraud and lose more than a billion rubles. Fraudsters steal both physical bank cards and their details and illegally debit funds from accounts. The card owner's task is to return them. The PayOnline press center talks about what steps need to be taken for the bank to reimburse lost funds.
Briefly: what to do?
The decisive factor in getting your money back is time. You need to start acting the moment you find out that money has disappeared from your card account. To initiate a refund, proceed step by step:
- As soon as you find out that money has been illegally debited from your card, immediately call the bank that issued the card, or go to online banking and block the card. This will prevent repeated write-offs.
- After that, go to the nearest physical bank branch and make written application to block the card.
- In the same department you should register written complaint(fill out the appropriate application on the bank form) for illegal write-off and refund of funds
- If money was withdrawn without your knowledge or consent, contact law enforcement agencies with a fraud report.
All this must be done as soon as possible to avoid even more serious financial losses. In many cases, this will be enough to get your money back safely. But if the bank refuses to reimburse you for the amount of an unlawful write-off, the further process of defending interests may develop differently, and its result will be determined primarily by the actions of the injured party.
What can affect the refund?
Below are the key factors influencing the bank's decision to return funds and the speed of its acceptance:
- When and where a bank card was used without the knowledge of the holder: the date and amount of the transaction, the name and address of the retail outlet, or the recipient’s details for an online transfer.
- Type and type of operation: cash withdrawal, purchase at a physical retail outlet, online transaction.
- Where was the card owner at the time of the transactions, and where was the card itself?. An “alibi” may be required to prove that the card owner himself could not have used it at the time and place of payment.
- Compliance with the terms of use of a bank card. Agreements most often contain standard conditions, which boil down to the fact that neither the card itself, nor details, nor passwords can be transferred to anyone in any form. However, it is worth reading the agreement in advance.
What can the bank say to avoid returning the money?
Banks have a number of standard reasons for refusing to return funds. Most often, victims hear the following formulations:
- At the time of writing off the card was active– was not blocked and had no other restrictions on transactions.
- The card owner has signed an agreement with the bank, which stipulates the conditions for using the bank card. According to them, the cardholder is responsible for all transactions transactions made using a bank card or its details until it is blocked after a written request from the holder.
- The bank conducted an investigation into the cardholder’s appeal and filed claims in accordance with the rules of international payment systems and found no legitimate grounds for claiming the amount disputed transactions from the acquiring bank.
If you receive a denial for one or more of the reasons above, you will need to work harder to get your money back. But don't lose hope.
What to do if you are refused?
The algorithm of actions is simple: you need to submit a second application to the bank, but this time support it with additional evidence that you are right:
- Receive from the bank written refusal, if the bank previously informed you of its decision orally or by telephone.
- Form evidence base(in other words, a list of arguments in your favor).
- Complete re-application and support it with links on the regulatory framework of the current legislation of the Russian Federation.
What evidence is on your side?
Evidence is a set of documents and witnesses who can prove that the transaction was not authorized by you.
- Documents that confirm that at the time of the disputed transaction you were not in the region where it took place. This could be a certificate from a place of work or study, a witness statement, a hotel extract, or a travel certificate.
- Copies of documents confirming that you have taken all necessary measures and notified all authorities about illegal transactions– copies of applications accepted by the bank and law enforcement agencies.
- Copies of cash or sales receipts, provided by the bank or retail outlet where the transaction was carried out with the signature (or without it) of the payer who performed the disputed transaction;
- Copies of payment documents, which reflect parameters and nature of payment, and confirm that the transaction was completed without means of identity verification the cardholder was either carried out without physically presenting the card or via the Internet. The bank can provide such documents.
Which documents and articles should I refer to?
On your side there are a number of regulations that you can and should refer to in case of controversial situations.
- Civil Code (Civil Code of the Russian Federation);
§ According to paragraph 1 of Art. 854 Civil Code, debiting funds from the account is carried out by the bank on the basis client's instructions. Without an order, write-off (that is, disposal of property belonging to him) is permitted only on the basis of a court decision (part 3 of article 27 of the Banking Law and paragraph 1 of article 237 of the Civil Code), a direct indication of the law (for example, tax) or a separate client agreement with the bank (in particular, in the cases provided for in paragraph 2 of Article 847 of the Civil Code). In this case, the order of write-off is established by mandatory rules of the law (Article 855 of the Civil Code) and cannot be changed by the terms of the contract.
§ Article 845 of the Civil Code sets guarantees and rights of the client to unhindered management of funds located in the client's bank account. At the same time, an indisputable circumstance is that one of the key goals of the banking agreement is this is the safety of funds, placed by the client. Clause 3 of Art. 847 of the Civil Code establishes the possibility of providing in a bank account agreement for certification of rights to dispose of monetary amounts in the account, confirming that the order was given by an authorized person.
§ According to paragraph 1 of Article 847, the right to control the transfer and withdrawal of funds from the account by a third party must be documented directly by the account owner.
§ Regulation No. 266-P“On the issue of bank cards and transactions performed using payment cards” determines the procedure for using bank cards, and also establishes the range of operations that can be carried out using bank cards
- Chapter 2 161-FZ“On the National Payment System” defines the conditions for refunding funds for unauthorized transactions:
§ Point 4: bank obliged to inform the client on the completion of each transaction using an electronic means of payment (in this case, a card).
§ Clause 11: in case of loss of the card and (or) its use without the client’s consent, he is obliged to send a corresponding notification to the bank after discovering the fact of loss of the card and (or) its use without the owner’s consent, but no later than one day after receiving notification from the bank about the transaction completed.
§ Points 12 and 13: if the bank didn't inform client about the completed transaction, he is obliged reimburse the client for the transaction amount, about which the client was not informed and which was committed without the client’s consent.
§ Clause 15: in the event that the bank informs the client about the transaction, and the client sends him a notice, the bank must reimburse the client the amount of the specified transaction, if will not prove that the client violated the procedure for using the card.
The main rules for a happy refund
- Carefully read the bank account agreement and the terms and conditions for servicing transactions using a bank card.
- Block your bank card as soon as you become aware of illegal transactions on your account;
- Be sure to contact the bank with a written and reasoned statement of disagreement with the transaction, and do this immediately as soon as you learn about the illegal write-off, or no later than the next day after receiving notification of the transaction from the bank.
- Request information from the bank about the decision made to consider your application in writing, indicating the rationale.
- Remember that your relationship with the bank is governed primarily by the bank account agreement, and your rights to receive compensation are governed by the legislation of the Russian Federation.
The bank is obliged to inform the client about each transaction made using a bank card by sending the client a corresponding notification in the manner established by the agreement with the client (Part 4 of Article 9 of the Law of June 27, 2011 N 161-FZ). The methods of sending notifications used by banks are different - these can be SMS notifications, e-mail, and information via Internet banking. At the same time, at least one of the methods of information must be free for the client.
If you find transactions on a bank card that you did not make, you must adhere to the following algorithm.
Step 1. Make sure that you really did not perform this operation.
There can be many reasons for questions about debiting money from a card.
For example, when making a purchase using a bank card, the money is sometimes not immediately debited, but only blocked in the account. The actual write-off occurs within a few days. But there are cases when a longer period of time passes from the date of purchase to the date of write-off, sometimes up to two to three weeks. Accordingly, it is not always possible to immediately remember that money was written off for a previously made purchase.
There are also cases when SMS messages about completed transactions arrive with a delay of several hours due to technical reasons, which may also raise fears of misuse of your card by third parties.
Step 2. Immediately call the bank's contact center.
The contact center phone number is always indicated on the back of the card.
You must immediately notify the operator about unauthorized transactions on your card, and also ask to block the card. Perhaps the contact center operator will ask you to perform some other actions.
We strongly recommend that you do everything the operator asks you to do, and also do not refuse to block your bank card, as this will eliminate the risk of further unauthorized transactions.
Step 3. Contact the nearest bank branch with a written statement of disagreement with the transactions performed (claim) and other documents, and, if necessary, also with a statement to the police department.
If there are suspicions that fraudulent transactions have been committed with your card, you should contact any police department and write a statement with a request to initiate a criminal case regarding the commission of fraudulent actions (Part 2 of Article 141, Part 1 of Article 144 of the Code of Criminal Procedure of the Russian Federation).
An application to the bank can be drawn up in the form provided by the bank or in free form. The statement must describe the details of the discovery of the unauthorized transaction.
Additional documents must be attached to the application at the request of the bank. The list of such documents may vary, depending on the nature of the operation.
For example, these could be:
– a resolution to initiate (refuse to initiate) a criminal case regarding the commission of fraudulent transactions, if the disputed transaction was carried out on the territory of the Russian Federation;
– a foreign passport to confirm your absence from the country in which the fraudulent transaction was committed, if the disputed transaction was carried out outside the Russian Federation.
Sometimes unauthorized transactions occur not due to fraudulent activities, but due to technical glitches. For example, the operation may be doubled. That is, you made the purchase yourself, but at the same time two identical amounts were debited from the card to the same seller. Or, for example, a technical failure occurred when making a purchase, the terminal issued a receipt indicating an error/cancellation of the transaction, but the money was still debited. In this case, it is advisable to attach the receipts you have to the statement of disagreement with the operation.
Step 4. Wait for the results of the bank's review of your claim.
The legally established period for the bank to consider a claim is no more than 30 days from the date of receipt of the claim, and when carrying out international transactions - no more than 60 days from the date of receipt of the claim. An agreement between you and the bank may establish a shorter period (Part 8, Article 9 of Law No. 161-FZ).
If the decision is positive, the funds will be returned to the bank card account or another account specified by you in the application.
If the decision is negative, you must be provided with a reasoned refusal.
At your request, the result of the consideration of the claim can be provided to you in writing.
Step 5. Go to court.
If the funds were written off due to the fault of the bank, you have the right to go to court with a claim against the bank from whose card the funds were written off for compensation for losses, as well as interest for the unlawful withholding of funds (Clause 1, Article 11, Art. 395 of the Civil Code of the Russian Federation; clause 1 of article 17 of the Law of the Russian Federation dated 02/07/1992 N 2300-1).
Note. There is no need to neglect security rules when using bank cards. Such rules are published by banks on their websites and issued when issuing a card. The most common reason for fraudulent transactions on bank cards is the failure to comply with these rules by the clients themselves. At the same time, it will be extremely difficult to return money written off by fraudsters due to failure to comply with basic security requirements.
In particular:
1. Never give your PIN to third parties, including relatives, friends, employees of a credit institution, cashiers and people helping you use your bank card.
2. The PIN must be remembered or, if this is difficult, stored separately from the bank card in an inconspicuous form and inaccessible to third parties, including relatives, in a place.
3. Never under any circumstances give your bank card for use to third parties, including relatives. If a bank card bears the surname and first name of an individual, then only this individual has the right to use the bank card.
4. When you receive a bank card, sign on the back of it in the place intended for the signature of the bank card holder, if so provided. This will reduce the risk of using a bank card without your consent in case of its loss (Letter of the Bank of Russia dated October 2, 2009 N 120-T).
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