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5th Chamber of TJCE Confirms Responsibility of Banks in PIX Fraud, Maintains Compensation of R$ 16 Thousand and Moral Compensation of R$ 6 Thousand to Musician Victim of Online Scam
The 5th Chamber of Private Law of the Court of Justice of Ceará condemned Banco Santander and Banco de Brasília to compensate a musician who was a victim of a PIX scam involving R$ 16 thousand, in a decision dated 12/09/2024 that upheld material reimbursements and moral damages.
The case analyzed involves a negotiation that started on November 30, 2023, when the musician found an advertisement for a laser cutting machine on Facebook for R$ 18,500.00 and began contact with the supposed seller the next day.
After negotiations, the sale was agreed at R$ 16 thousand, paid through four PIX transfers to accounts linked to two different banks, as stated in the records examined by the 5th Chamber of Private Law.
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On December 9, 2023, when arriving at the agreed location to pick up the equipment, the buyer discovered that he had fallen for a scam, informed by the real owner that he was the second victim to seek the machine.
Upon realizing this, the musician immediately contacted the financial institution where he had an account, requesting the cancellation or blocking of the transaction to try to recover the amounts transferred in the payment made via PIX.
According to the process, the client was informed that there had been communication with the receiving banks to check the possibility of returning the amounts; however, it was not possible to reverse the amounts involved.
After filing a Police Report, the musician formalized complaints with the Central Bank against the two receiving institutions and then filed a lawsuit seeking compensation for the damages suffered.
In the lawsuit, the claimant requested material compensation of R$ 11 thousand against Banco de Brasília and R$ 5 thousand against Banco Santander, amounts corresponding to the transfers intended for each institution.
In addition to financial reparation, the musician also sought compensation for moral damages, arguing failures in banking security and the opening of accounts used by third-party fraudsters to receive the funds.
In its defense, Banco Santander alleged passive illegitimacy, stated that it blocks amounts when available, and argued that the client failed to act in time to prevent the consummation of the scam.
The institution also defended the impropriety of the requests, arguing the absence of fault in the service provided and non-responsibility for the damages alleged in the ongoing proceedings in the Ceará Court.
Banco de Brasília, on the other hand, did not present a defense in the records, a circumstance noted in the first instance judgment and considered in the review of the case by the competent judicial bodies.
First Instance Ruling
On June 12 of this year, the Court of the 29th Civil Court of Fortaleza ruled in favor of the musician’s requests, condemning Santander and BRB to proportionate reimbursement of material damages and to pay R$ 6 thousand for moral damages.
Banco Santander appealed the decision, arguing regularity in the opening of the account used in the scam, lack of fault in the service, absence of responsibility, and non-existence of moral and material damages that can be compensated.
The victim, in turn, requested the maintenance of the first instance ruling, arguing that the financial institution failed to prevent the opening of accounts by fraudsters without effective security and verification mechanisms.
Appeal Judgment
When judging appeal no. 0206725-39.2024.8.06.0001, the 5th Chamber of Private Law upheld the decision of the 29th Civil Court of Fortaleza in its entirety, confirming the amounts set in the first instance.
The rapporteur, Judge Maria Regina Oliveira Camara, stated that “Banco Santander did not fulfill the burden of demonstrating the regularity and minimum diligence in the opening and management of the account used by the fraudster.”
According to the magistrate, there was a clear “defect in the provision of banking service,” noting that the material damages were evidenced by records of the four transfers made via PIX by the injured client.
Regarding the moral damages, Maria Regina Oliveira Camara stated that “the amount set in the First Instance, R$ 6,000.00, is moderate and proportional when compared to the jurisprudence of this Court in cases of banking fraud via PIX.”
In the same session on 12/09/2024, the 5th Chamber of Private Law judged 156 cases. The panel comprises Maria Regina Oliveira Camara, Francisco Lucídio Queiroz Júnior, Mantovanni Colares Cavalcante, and José Krentel Ferreira Filho, with the secretariat of Lais Cabral Bacha Queiroz.
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