This decision* by a higher court reveals the most banal scam that telephone scammers have been perpetrating almost daily lately. The dispute was noted by the Pravo.ru portal.
So, in the summer, a citizen’s phone was stolen, and while he was missing, fraudsters took half a million rubles on credit in his name through the bank’s mobile application. The scammers immediately transferred this money to third-party accounts.
As soon as the deceived citizen realized what had happened, he ran to the police, where he wrote a statement about the deception. A process was opened there under section 3 of article 158 of the Penal Code. The article talks about theft. And a case was opened against, as the police said, “an unidentified person.” Therefore, the man was recognized as a victim in this case. But investigating these types of scams is itself a long process. The deceived citizen also went to court to invalidate the loan contract. The main argument he referred to was that he did not reach an agreement and that the money was transferred to an unknown person.
But the district court refused to accept the fraud victim’s request. The court referred to the fact that the agreement was concluded through a mobile bank. And this could have been done by the bank’s own customer, or “someone else with her consent, or someone due to the disclosure of access to the app.” The court also stated that the argument that the citizen was recognized as a victim in a criminal robbery process is not a basis to satisfy the claim.
Overall, the court said the agreement was valid and the bank fully complied with its obligations. The court noted that the man can, of course, bring claims for damages, but only against the fraudster. The appeal and the cassation appeal agreed with this conclusion.
The citizen went to file a complaint with the Supreme Court, which annulled all decisions and sent the case for review. The Supreme Court noted that the courts did not doubt what the person said about the circumstances of the conclusion of the contract in his name, but without his participation. And the district court said he could file lawsuits against the person who stole the phone.
The Supreme Court noted that this contradicts article 153 of the Civil Code on the transaction as a volitional act. That is, the court determined that the loan was not granted to our hero, but to an unidentified person who acted on his behalf.
“Referring to the fact that the loan agreement was concluded and is in force, the court did not know how the terms of this agreement were formulated,” the Supreme Court emphasized. He also referred to the ruling of the Constitutional Court (dated October 13, 2022 N 2669-O). It says that when applying for a loan remotely, banks should take greater precautions if the customer requested the transaction and then ordered the money to be transferred to third parties. The Supreme Court emphasized that the court did not appreciate the bank’s actions when it entered into an agreement remotely with the client and immediately transferred the money to other accounts.
In this case, it is obvious that it was not the bank’s own client who entered into the agreement.
As lawyers highlight, thanks to the decision of the Constitutional Court, to which the Supreme Court referred, the negative practice began to change. The experts highlighted an important point that must be paid attention to: in this case, it is clear that it was not the bank’s own client who entered into the agreement. Lawyers are confident the practice will spread to similar disputes. In particular, in situations where defrauded borrowers, under the influence of telephone scammers, acted independently to obtain a loan and transfer money to the criminals’ accounts.
*Definition of the Supreme Court of the Russian Federation No. 5-KG22-127-K2.
