HASndré X will have had to wait five years for his bank, LCL (ex-Crédit lyonnais), to reimburse him for the 900 euros that a criminal had stolen from him at an ATM. On February 5, 2018, when he had just inserted his bank card into the device and dialed his secret code, an individual intervened, typed a sum on the keyboard, and fled with the money taken out of the hatch.
Two days later, Mr. X notes on his account statement that the man has withdrawn 900 euros. He asks the bank to return them to him, but it refuses, considering that he was the victim of a “cash theft” (qualification given by the judicial police officer on his complaint). Mr. X replies that he never held these cash in hand, and he asks LCL to verify this, by viewing the scene, filmed by the video surveillance system. He will never get satisfaction.
Mr. X then seized the Paris court, by Internet and without a lawyer, invoking in particular thearticle L133-19 of the monetary and financial code, according to which “the payer’s liability is not engaged if the unauthorized payment transaction was carried out by misappropriating the payment instrument without the payer’s knowledge”.
LCL replies that it has ” allowed “ the operation, as soon as the customer has typed in his secret code. The interbank regulations for card withdrawals in fact state that the card holder need only have typed in this code on the keyboard for him to have “given his consent” to the withdrawal operation. Thesis validated by the Paris court on May 7, 2021.
Damages and interests
Mr. X then appealed in cassation, arguing that the disputed transaction constituted a fraudulent withdrawal, which should, according to the monetary and financial code, give rise to reimbursement. On November 30, 2022 (21-17.614), the Court agrees with him : she interprets the articles L133-3 And L133-6 of the monetary and financial code, to say that“a payment transaction initiated by the payer” (thanks to the composition of its code) is “deemed authorized only if the payer has also consented to the amount of the transaction”. It breaks the judgment and sends the parties to another formation of the judicial court.
Mr. X takes a lawyer this time, Mr.e Bertrand Gatellier, and the hearing is set for April 14, 2023. After having attempted to settle, LCL proceeds, three days before, on April 11, 2023, to transfer the amount claimed, i.e. 5,466.96 euros, broken down as follows: 900 euros for the disputed withdrawal, 1,066.96 euros in interest from February 8, 2018 to April 14, 2023, 1,000 euros in damages in recognition of his abusive resistance, and 2,500 euros under Article 700 (attorney fees).
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