Anatoly Loginov comments on article "Why it is easy to lose million from bank account by false power of attorney". "Fontanka.ru", 31 July 2018
Banks are not obliged to check their clients' powers of attorney and are not responsible for their clients' money given to rogues. Such a decision was passed by the Saint-Petersburg City Court on the claim to the PJSC "Baltic Bank". Representatives of other credit organizations promise to protect their clients from that kind of incidents.
The current legislation binds banks to identify their clients in a formal way only. Clients happen to be losers in disputed situations; they are actually offered to find criminals and try to get the stolen money from them themselves.
Was their a boy?
A lawsuit against one of the oldest banks of the Northern capital was brought by veteran Karina Shestakova. Back in 2012 she trusted the Baltic Bank almost 37 million roubles inherited from her son-businessman after his death.
Four months later the savings disappeared from her account. A certain Anna Apsh acted on behalf of the client. She produced the power of attorney witnessed by a notary. Then she terminated the contract and withdrew the balance of the deposit with accrued interest in the amount of ₽39.5 million. A clerk of the central department of the bank in Sadovaya street assured that she had properly compared the signature of Karina Shestakova with the specimen signature in the card. An additional verification of the power of attorney was carried out by a deputy manager.
Having discovered the loss the depositor declared that she didn't know any Apsh and hadn't given her the power of attorney. It was found out in the course of the criminal investigation instituted on the application of the client that the power of attorney had been falsified. Moreover, rogues used the scan of the bank the original of which contained permission for a child to go abroad witnessed by a notary. The rogues inserted a new text, photocopy of the client's signature, invented a notary's registration number, and so on. The form had no watermarks, i.e. in order to reveal the forgery the clerk only had to put the document against the light and look through it.
Anna Apsh herself didn't deny that she had received money of unknown to her Karina Shestakova. She was supposedly asked to do that by her acquaintance Slava by name who gave her the power of attorney and later took all millions and the original document. Anna claimed that Slava had promised to pay her 200 thousand roubles, but the money received was fake.
The depositor appealed to the Kuybyshevsky District Court claiming to exact the money from her deposit which had been given to the unauthorized person. The plaintiff asserted, in particular, that the bank had to verify the authenticity of the power of attorney by sending a corresponding request to the notary, and also to the client. However, the court considered that such obligations were provided neither by the law, nor by the contract or bank regulations, whereas the clerks of the credit organization had carried out all the supposed procedures for the client's identification: the power of attorney had been duly drawn up, contained all necessary requisites, client's signatures, notary's signature and seal, information about the depositor agreed with that presented during the conclusion of the contract. "At the moment of giving money the bank supposed that the power of attorney given to Shestakova K.I. for Apsh A.S. was genuine. The defender fulfilled its duties for verification of authenticity in a proper way. Thus, the bank had no legal grounds to refuse Apsh A.S. to receive the money from the deposit of Shestakova K.I.", – reads the decision of the court.
The Board of Appeal also did not find the credit organization guilty, because it "acted in accordance with the requirements of the current legislation and local normative acts": "Authenticity verification of documents presented by a client is not in the competence of a bank", – stated the City Court of Saint-Petersburg.
The plaintiff instituted a new lawsuit demanding to recognize the transaction on issuing the deposit to Anna Apsh invalid. Since the power of attorney was false, the Vyborgsky District Court came to a conclusion that the deal was null and void. The appellate instance upheld these conclusions, and thus a chance for reconsidering the case also on exacting deposit money appeared.
However, presidium of the Saint-Petersburg City Court found a substantial processual infringement in the new decision. For, according to the law, the circumstances established by the servants of Themis are ultimate and cannot be reconsidered in the course of resolving any other dispute between the same parties. Earlier the court had already confirmed the absence of infringement of the rights of Karina Shestakova in the actions of the Baltic Bank. Therefore, all claims of the consumer were rejected during already the third consideration of the case. The decision in favour of the credit organization came into legal force 30 July.
Life without standard
Lawyers who were asked about the matter consider the situation complicated. According to the Civil Code of the RF, a participant of legal relations is found not guilty if he/she has taken all the necessary measures to the proper execution of his/her obligations "showing the level of solicitude and circumspection required by the nature of obligations and turnover conditions".
Head of the analytic division of the advocatory bureau "Prime Advice Saint-Petersburg" Tatiana Tereschenko says that banks are in charge of the proper clients' identification in accordance with the requirements of the profile legislation, instructions of the Bank of Russia, and their own interior rules: "But such identification has a standardized character and does not allow to reveal a forgery. Certainly, a bank clerk must verify signatures against each other, make sure that submitted documents are authentic and the power of attorney was really issued by a notary. But, to be honest, there are no specialists and equipment to reveal well-made forgeries. According to the instruction, a clerk should make an additional request only if suspicions occur, and that is rather subjective in each situation. So, if a bank presents proof that identification has been carried out in accordance with the established rules a client is responsible for the risk of giving money to the unidentified and unauthorized person, since there is no formal infringement on the part of the bank", – states Tatiana Tereschenko.
Anatoly Loginov from attorneys at law Pen & Paper also reminds that there are no special norms in the current legislation which bind banks to recover the money withdrawn from a client's deposit by counterfeit documents: "Recovery is possible only if the fault of a bank is proved. For instance, if a clerk hasn't verified documents. But, as a matter of fact, such a verification consists of a visual examination of that very power of attorney. If obvious signs of forgery are not found a bank is considered not guilty. Credit organizations do not have other, more efficient powers", – concludes the advocate.
President of the Notarial Chamber of Saint-Petersburg Piotr Gerasimenko clarifies that forms with nine degrees of protection have been used in Saint-Petersburg to draw up powers of attorney since 1997. Among other peculiarities they have special watermarks. It has been possible to check whether the power of attorney was issued and is valid on the website of the Federal Notarial Chamber online and free of charge since 2017. But this system does not inform who drew up the power of attorney and who received it.
Check and trust
A check-up in the Baltic Bank established in 1989 by the Oktyabrskaya Railway and other structures of the Railway Ministry started almost four years ago. The Alfa-Bank whose lawyers were actively trying to prove the legitimity of the clerks' actions of giving out the money of Karina Shestakova, acts as a "guardian" of the credit organization.
"The results of the present case show that after thorough examination of all the circumstances the courts came to a definite conclusion that there was no fault of the Baltic Bank in this particular case", – claimed the Alfa-Bank press service.
Competitors of the Alfa-Back point out that there are numerous doubtful circumstances in the Shestakova case. In particular, if an early deposit withdrawal takes place, usually the required sum must be ordered. Clients with such deposits belong to the VIP-category and that provides individual service, a personal manager, direct mobile phone contacts and other privileges.
Senior vice-president of the bank "Otkrytiye" Michael Ioffe says that a telephone call to a client is a standard practice during a transaction by power of attorney regardless of its amount. "Big banks practice on a regular basis teaching their clerks who work with clients to distinguish counterfeit passports and powers of attorneys, detect rogues by psychological nuances in their behaviour, act in extreme situations. If a swindler somehow manages to steal the client's money by means of false documents banks usually resolve the situation out of court. But in this case a number of juridical aspects and requirements of the regulator has to be taken into consideration: it is necessary to institute a criminal case, recognize a client as a victim and carry out an independent handwriting expert examination, in order to recover losses", – explains Michael Ioffe.
Incident with Karina Shestakova is not the first attempt of a bank to make a consumer responsible for stealing their own money by rogues. Client of the Petersburg branch of the MBW-Bank (Moscow Business World Bank) Tamara Kostomarova found herself in a similar situation. ₽11.4 million were withdrawn from her account also by a counterfeit power of attorney. Initially, financiers tried to initiate a criminal case of fraud against the depositor herself. Apart from the incident with Karina Shestakova, a swindler produced the power of attorney on the authentic form which had been witnessed by a notary who hadn't verified the principal's identity. The Saint-Petersburg City Court didn't find the credit organization guilty, but the bank decided not to wait until the Supreme Court of Russia had passed its decision, reached an amicable agreement and paid the depositor all the stolen money with accrued interest.