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When studying a Findeter lawsuit against BBVA and the Caja Agraria, the Court did not grant the appeal with which the defendants sought to overturn a sentence that forced them to pay Findeter more than 7,000 million pesos for the theft, made by a third party, of silver that Findeter had in a BBVA account.
To resolve the lawsuit, the high court recalled that the raising of resources from the public, the main source of financing for the banks, implies that the client gives the bank a sum of money and the latter undertakes to guard it and ensure the availability of the funds. balances.
He added that jurisprudence has recognized that the breach of the commitments in charge of the bank compromises its civil responsibility, Unless the so-called “sole fault of the victim” is proven.
The Court also pointed out that when entering into a savings or checking account deposit agreement, the bank undertakes to allow its clients to dispose of the balances of those accounts through money orders, transfers, among others. All these channels require an authentication protocol –for example, passwords, biometrics, among others– that allow the bank to establish, with certainty, the origin of each order issued.
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“When a third party circumvents these authentication protocols and, posing as the account holder, disposes by any means of the resources deposited in savings or checking accounts, the verification obligation is breached, since the burden that has been talked about cannot be understood satisfied simply with the good offices of the bank, but with the effective confirmation of the identity of its client “, the sentence reads.
And the text adds that not observing that verification commits the bank’s civil liability, unless it shows the occurrence of a strange cause that prevents it from being charged that charge. That is to say, “The financial institution cannot exonerate itself from the duty to compensate with the simple proof of having acted diligently.”
The file that the Court studied
The case dates back to events that occurred in 1997, when Findeter opened a checking account at BBVA to manage funds and agreed that, upon his instruction, the bank would disperse a number of the resources to provide liquidity to regional infrastructure projects. That money ended up in the pockets of an individual.
On October 9, 1997, Findeter filed two transfer orders to send resources to San Andrés y Providencia, Atlántico, and the municipalities of Villavicencio, Cúcuta and El Espinal. In total, the orders were for resources of $ 1,080,000,000, but being held by the bank, the instructions to send the money to various territorial entities were replaced by others in which it was ordered to be transferred to a bank account of the Caja Agraria, Soledad branch, whose owner was the municipality of Malambo, Atlántico.
In the criminal investigations it was established that Emiro Adolfo Reyes del Valle, who was director of the office of the Caja Agraria de Soledad, had forged the scam, taking advantage of the fact that the bank account was not frequently used, For this reason, he illegally disposed of the resources by writing several cashiers checks.
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The case was decided in first and second instance in favor of the plaintiff and with decisions that obliged the banks to pay him a large sum of money, but BBVA and the Caja Agraria filed an appeal, which was analyzed by the Supreme Court of Justice.
For the high court, the bank fraud of which Findeter was a victim originated in the conjunction of infractions attributable to BBVA (allowing the alteration of the draft orders filed by its client) and the Caja Agraria (facilitating the management of its accounts for the disposition of the stolen resources).
Without BBVA’s infringement of contract, says the ruling, the money would never have left Findeter’s accounts, “nor fallen into the hands of the officials of the extinct Agrarian Fund, who participated in the embezzlement. ” For this reason, the judgment of November 23, 2018 of the Civil Chamber of the Superior Court of Bogotá did not marry.
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When it is not the bank’s responsibility
The cases in which the charge would not be from the banks are, for example, citing the judgment, when the account holder loses his debit card and has his transactional code written on it, facilitating that whoever finds it makes a withdrawal through the ATM network.
In this situation, the authentication controls provided by the bank would have been violated by factors attributable to the account holder, since it was he who lost the card and the password and the custody of those elements corresponded to him, which prevents any charge from arising for the bank compensation.
But In the event that whoever found the card goes to a bank branch to make a millionaire withdrawal, the crime would have as a precedent conduct
attributable to bank and customer, as the loss of the card and the password would end up being added the absence of identity verification protocols, typical of the bank’s face-to-face channels.
In this scenario, the Court pointed out, the judge in charge of studying the case would have to weigh the legal relevance of these causes, being able to conclude that both parties contributed to the harmful result, so that its effects would have to be distributed among them, in a proportional manner. to your participation; or that only one of those antecedents was decisive in the production of the damage, case in which whoever produced it will have to assume the loss in full.
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JUSTICE
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