Myriam X., 30 years old, unemployed, registered on a casting site. On February 19, 2016, she is contacted by a Raymond Taylor, who offers him to take photos in London. They exchange a number of emails, after which he tells him that he will send him a check for 10,000 euros, which must be deposited on his account.
He adds that she will then have to make a transfer of 7900 euros to a third party, supposed to take care of her airfare, hotel, make-up or clothes …. This is a great classic of the scam, the first check is, in general, not supplied, but Myriam ignores it.
On March 10, 2016, the young woman receives the check of 10,000 euros, from the Wells Fargo Bank. On March 15, 2016, she goes to her branch of the Savings Bank, and talks with her advisor, Bruno Y. According to her version of events, she tells him the whole story, gives him a copy of the contract sent by Raymond Taylor, and asks him if the check is falsified. He replies that the check appears to him to be in order, and proceeds to its collection. The amount of € 10,000 is immediately credited to his account, "Subject to collection".
On March 18, 2016, Raymond Taylor asked Myriam to make a transfer of € 7,900 to the third party, a Mr. Sopkewo. On March 22, 2016, she tries to make the transfer from her account online, but she can not. She calls Bruno Y, who indicates that, for security reasons, transfers abroad are limited to 5,000 euros, and she must go to the agency. She goes there, but the counter employee does not want to take on this responsibility. So it is Bruno Y who takes care of it, after having confirmed to Myriam, according to this one, that the check of 10 000 euros is well "Stocked".
Myriam transmits to Raymond Taylor the proof of the transfer, and asks him to specify the date of the photo shoot. He does not answer anymore. On March 24th, when she raises him for the umpteenth time, he answers by e-mail that there are "complications »EHe will send him another check for 12,000 euros.
Suspicions of scam
She begins to worry, and conducts research on the Internet. She discovers that the name of Raymond Taylor is mixed with «Scams to the president ". On March 25, 2016, she calls Bruno Y to ask him to stop the transfer of 7,900 euros. She informed him of her suspicions, concerning a possible scam of which she would have been victim.
Bruno Y sends him on his answering machine the following message, which she will make note by bailiff: " Miss X, hello, Bruno Y at the Savings Bank … I am allowed to contact you because I just had your message. So I will take things in order, concerning the check for 10,000 euros that you had cashed, this one is well cashed, no worries it is cashed since March 16 the check is not returned to us, there was the provision that's good.
Regarding the transfer of 7,900 euros that you made me do, it is already gone, it is debited from your account so it must be credited also to that of the beneficiary. […] Otherwise, it would have been necessary to give me more explanations on what you think is a scam […] "
On March 26, 2016, Bruno Y left him a new message, stating: " At the moment the check is still not rejected, we are touching wood so that it remains like this ", and asks her if she has left a handrail, as she intended.
On March 29, 2016, Bruno Y recalls that the check was rejected. Myriam X finds herself debtor of some 9,000 euros. On April 15, 2016, she asks that the Savings Bank refund the 7,900 euros sent abroad. She explains that without the misinformation she was given about the check, she would not have made the transfer. The Savings Bank refuses him.
On June 13, 2016, Myriam X receives a summons to pay the sum of 9,395 euros. As it does not run, the savings bank obtains from the magistrate court of Rochefort (Charente-Maritime) that it is condemned to pay it. On October 25, 2017, Myriam X takes a lawyer and opposes the payment order.
Myriam considers that the Savings Bank should have informed her of the collection deadlines, when she deposited the check for 10,000 euros, and that she should have opposed the transfer of 7 900 euros, 7 days later. She submits that the counselor should not have told her on several occasions that the check was not rejected, prompting her to think that she was definitively in possession of the funds. And all the more because she had fully informed him of the context.
Caisse d'épargne replied that the adviser knew nothing of the context; that he was required to refuse only checks showing apparent anomalies or irregularities, which was not the case.
She assures that the client could not be unaware that the entries of the checks to the credit are made subject to effective collection, that is to say, pending the payment by the bank of the shooter, since this principle is included in the conditions of the account agreement and the back of the check deposit slip.
It states that "The rejection period, recommended by the interbank standards, which runs from the cashing of the check, is:
– 8 days in case of default of provision
– 60 days for other reason (ex: theft) »
She argues that in this case the check was rejected "14 days after filing, within 60 days" – However, the reason for rejection of the check being the non-supply, the 8 days delay was exceeded.
"Neglect" of the client
Caisse d'Epargne added that the principle of non-interference prevented it from making a judgment on its transfer order.
It involves the "negligence " the client, who would not have been alerted by the " movements of funds »obviously "Unrelated to the London photo shoot "which was imposed on him by his interlocutor. The fact that the client was scammed exonerated her from any liability.
The court of Rochefort, which ruled on April 26 (2018), considers that Ms. X does not prove that his adviser "Had knowledge" circumstances in which the check was delivered to him. The proof of this is the message of March 25, 2016, in which Bruno Y indicates that it would have been necessary "Give more explanations" on what she thought was a scam.
The court still considers that Myriam does not prove that her advisor had repeatedly told her that she was finally disposing of the funds, "The only document evoking the existence of the provision being the minutes of the bailiff's report" on the message of March 25: "Concerning the check of 10,000 euros that you had cashed, this one is well cashed, no worries it is cashed since March 16 the check is not returned to us, there was the provision that's good. "
Now, judge the court, "This message is after the establishment of the transfer order, and therefore can not demonstrate that the behavior of the bank officer could cause his alleged error".
Fault of the client
The court finds that the client could not ignore the collection deadlines. He adds that by virtue of his " duty of non-interference in the affairs of his client ", the bank did not have to prevent it from making the transfer, " Ms. X lacked foresight and vigilance in agreeing to cash a check drawn on the account of a third party that she had never met physically, and did not know, by performing on the expiry of a delay of 4 days only a transfer to the benefit of a third party she did not know more, hoping in the process make a profit, without object or any consideration and without questioning the interest of the operation for the donors of 'order'.
He says that the bank has committed no fault and that it has the right to obtain payment of the sum; she refuses any payment deadline to Myriam X. This one indicates that she did not appeal, for lack of money.
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