Last week, in one of the district courts in Poznań, a verdict was issued that fully upheld the lawsuit of the Law Firm’s client in a case concerning the recovery of funds stolen from a credit card as a result of an unauthorized payment transaction within the meaning of the Payment Services Act.
The dispute focused on several key issues: Can transactions made with a stolen credit card, but each time the card’s PIN code is used correctly, be considered unauthorized transactions? Can the exhaustion of the limit on the credit card be considered as damage within the meaning of the provisions of civil law? In such a situation, is the bank obliged to return the stolen funds to the payer?
The Court of First Instance fully shared the arguments of the plaintiff’s attorneys. In the oral reasons for the decision, it was indicated that the conditions for the refund of the amount of the unauthorized payment transaction pursuant to Art. 46 of the Payment Services Act. In the behavior of the plaintiff, the Court did not find gross negligence in complying with the obligations incumbent on him as a user of a payment card, which the defendant bank accused the plaintiff of. In particular, the Court emphasized that having one PIN number for several payment cards cannot in itself be considered as gross negligence. It was also noted that it is impossible to require the card holder to cover the device each time when entering the PIN on the terminal in a way that prevents other people from seeing it, as this is unnatural behavior. According to the Court, the lack of possibility of assigning gross negligence to the Plaintiff was also evidenced by the fact that immediately after receiving information about unauthorized transactions, he reported the case to the Bank and law enforcement authorities.
Although in the course of the complaint process the bank successively refused to accept the complaint, the Financial Ombudsman also took the side of the plaintiff. However, this did not stop the bank from further actions aimed at repaying the loan taken by the perpetrator of the theft, consisting among others in constantly calling the plaintiff for payment, arbitrarily deducting the credit installments, despite the pending trial, and even – bringing a claim for payment against the plaintiff in electronic writ of payment proceedings.
With regard to the plea of no damage on the part of the plaintiff, the Court examining the case pointed out that the case was not a traditional compensation process, and the obligation to return the stolen funds resulted directly from Art. 46 of the Payment Services Act. It was emphasized that the damage is not always real, but it can also take the form of damage that the injured party will have to make up in the future.
Due to the impossibility of reaching an agreement with the defendant and the increasingly decisive steps taken by the bank, the plaintiff was forced to seek professional help. In a clash with one of the largest entities of the financial market in Poland, the claimant, as an individual, was completely defenseless. Also, the criminal proceedings conducted in connection with the theft were discontinued due to the failure to identify the perpetrators of the crime.
On behalf of DSK, under the direction of attorney Łukasz Lewandowski, the client was represented by: attorney at law Justyna Rydzewska and attorney trainee Katarzyna Holik.
