Article drafted on 28 January 2025, by practising lawyer No. 8254 ICAMALAGA, D. Jesús Picossi Ávila
In our professional office, we can obtain for you, an extrajudicial or judicial declaration of civil liability of the bank, for bank fraud. By virtue of which you will be compensated for the damages, both economic and moral in your case, that you may have suffered as a result of having been a victim of bank fraud, together with the legal interest accrued from the date of the undue payment of the said amount of money. We will now go on to explain the claim for bank fraud.
What are bank frauds?
Bank frauds are those criminal actions carried out by third parties with a profit motive, in order to illegitimately subtract money funds from individuals or companies deposited in financial institutions. They are currently normally carried out by computer, through the use of malicious software or complex fraud strategies, which steal our personal and financial information, and can even usurp our identity for this purpose.
What are the most common bank frauds?
Without wishing to be exhaustive, we will now proceed to list and define the most common banking frauds that occur nowadays:
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Phishing:
- It is a fraud that is usually committed online, in order to violate the banking security measures of consumers. The aim is to obtain sensitive banking information, such as the bank accounts and/or bank cards of a cardholder, and the passwords or authorisation codes for banking operations, in order to be able to make fraudulent withdrawals of funds.
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Key Logger:
- These are malicious software, which we download onto our electronic device usually by mistake, and which find out what the keys and passwords of our banking platforms are, by typing them into our device.
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Pharming:
- In this fraud, criminals replicate a bank’s website. In order for the customer to enter by mistake, inserting their data into it, with the fraudsters taking over our banking information, with the aim of committing embezzlement in our finances.
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Vishing:
- This is a fraud in which the fraudsters contact the victim by telephone, impersonating the identity of the employees of the corresponding bank, in order to request sensitive banking information from the client.
What is the evolution of the incidence of bank fraud in Spain?
In Spain, unfortunately, the incidence of bank fraud is growing by leaps and bounds, with fraudsters using increasingly sophisticated techniques.
According to the business newspaper Cinco Días, bank fraud claims to the Bank of Spain from bank customers in 2022 doubled in just one year, from 4,955 to 10,361 claims.
It is a fact that criminal organisations involved in bank fraud are increasingly sophisticated in their methods of fraud, causing damage to banking consumers, which can sometimes be quite serious.
How can we act when faced with bank fraud?
Consumers of banking products should be aware of the serious current problems caused by bank fraud. We should act by adopting the security measures for our data that our bank or even our IT specialist advises us to take.
But in the event that we have already been victims of bank fraud, our course of action should be to immediately contact the bank through the app, in person or by calling the customer service telephone number. Communicating to the bank as soon as possible that we have been the victim of fraud, in order to take urgent measures to try to reverse the economic damage caused, or to prevent this situation from happening again in the future, for example by blocking bank cards.
If even so, the financial loss suffered by the bank consumer could not be reversed by the bank. In this professional office we can help you to make a claim for bank fraud.
And this, with the aim of claiming the return of these defrauded sums of money, by making a claim to the bank, in order to assume its civil liability in this regard. For not having adopted sufficient security measures on the online platform to prevent the commission of the corresponding fraud or embezzlement. The bank may take legal action to defend the interests of our clients.
What is the responsibility of the bank in the event of bank fraud against a client?
Royal Legislative Decree 1/2007, of 16 November, which approves the revised text of the General Law for the Defence of Consumers and Users and Royal Decree-Law 19/2018, of 23 November, on payment services and other urgent measures in financial matters.
They attribute a civil liability of the businessmen with respect to the clients, as a consequence of the damages suffered by the same, when these businessmen have not adopted the due diligence of a good father of a family, in the provision of their services, and this in order to protect their clients.
There is a quasi-subjective civil liability of the banking entity, which must demonstrate that it acted diligently in the provision of the banking service to the client, adopting all the necessary security measures in order to protect the banking data of its clients. Being civilly liable for the damages caused, as a consequence of not demonstrating such diligence in its actions. The customer is only liable if he/she is guilty of gross negligence or if the fraud is attributable to him/her.
Case law on bank liability for bank fraud:
There are a multitude of judgments in the civil sphere that attribute liability to the acting bank, as a consequence of the production of economic damage to its clients, and this derived from the bank’s failure to adopt sufficient protection measures with respect to their bank details, and specifically, I will cite the following:
Judgment of the 8th Section of the Provincial Court of Alicante no. 107/2018, 12 March:
‘The payment service provider (the bank) must implement the necessary measures to ensure the authentication and identity of the payer when giving consent.
For this reason and for its execution, the bank must in all cases check the authenticity of the order’; ’the responsibility in these cases cannot be attributed directly to the supposed originator of the transfer as it is understood to have been authorised as it has been carried out in accordance with the bank’s authentication systems.
The authentication systems are set up by the payment service providers and if a bank has not been able to limit access to the electronic banking channel it cannot claim that the alleged payer who is the victim of this fraudulent practice is solely responsible, since it is the bank that is responsible for the proper functioning and security of the channel….
The security measures are not only intended to protect the security of payment orders issued by customers but their effectiveness exonerates credit institutions from their responsibilities for payment orders not issued by their customers in such a way that failure to comply with this specific duty of vigilance would give rise to liability for ‘ culpa in vigilando ’ or strict liability for the malfunctioning of electronic banking services. ’
Judgment of the Provincial Court of Granada, 20/06/2022:
‘…, in accordance with the legal framework in which the activity of payment services through online banking is carried out, the liability regime of the service provider must be considered quasi-objective, insofar as it is only excluded in some cases due to the serious fault of the customer and in others solely due to fraud attributable to the customer, which also implies that the burden of proof of these exonerating circumstances and the parallel inexigibility of other conduct on the entity in question falls on the latter in any case.’
Judgment of the Provincial Court of Badajoz, 16/06/2022:
‘… there is no gross negligence on the part of the plaintiff in the use of the payment instrument and in going to a simulated link and, consequently, it will have to be the defendant entity as the provider of the payment services used fraudulently by a third party, thereby gaining access to the plaintiff’s bank account, who will have to respond for the losses suffered by the plaintiff with such operations’.
How to claim for bank fraud?
In our professional office, we study the feasibility of your case, free of charge and without obligation. And if the claim is feasible, upon the client’s request, we will ask you for the necessary documentation to be able to claim, and we will charge you when the client is paid.