HSBC refuse to refund debit card fraud

liam8282

jamesd - The FOS precedents that you posted, to me, all imply that, each time one of these "frauds" has taken place, the card holder has at least reported the "theft" of the card to the police and taken it as far as possible. Thus leaving some evidence of an attempt to make the culprits accountable.

In the OPs case, they apparently went to the police for advice only and left it at that. Straight away that should get alarm bells ringing.

Given the time, 6am, the OP had been drinking all night with "friends". There is no proof the phone went anywhere, or that the bank card and pin code wasn't just given to the friends to go and get more drinks.

The card issuer will simply ask "why didn't you take this further with the police" and IMO the FOS will too.

Agree or disagree, what is actually happening is the OP is not getting the money back.

jamesd

The problem for HSBC is that they have to prove gross negligence when the means to contact them about it was also removed during the short time window when the theft happened and when he had no reason to believe that the PIN was compromised. I don't think they can get that to the gross negligence level, so I think that there is a significant chance that the FOS will follow the precedents I gave earlier and rule in his favour.

Just him knowing the card wasn't in his possession isn't sufficient to prove gross negligence. Particularly not when the phone he could have used to contact them was also taken for long enough for the theft to happen.

For him this discussion makes little difference. The FOS precedents provide sufficient reason for him to appeal then go to the FOS if the appeal is rejected, because any chance of a refund beats none. Hopefully he'll tell us how it went.

Now in general if someone so much as even opens a new card envelope and passes it to you with a sorry note, you should report that to the card issuer so they can cancel the card. Did that myself recently. That's because the person had the chance to note the number, dates and CVV2 and some places will allow orders with that much information. So philD did need to report it once he knew that the card was used fraudulently and also should have done, IMO, given the circumstances he was in, as soon as he got his phone back. But me thinking should have is not the same as the gross negligence standard.

liam8282

Another scenario, I am at work, I have just given my colleague my bank and pin.

He has gone to the bank and taken out £500. I give him £100, pocket the other £400.

I am now ringing my bank to tell them this thieving swine has just taken my card and pin, took my money, but gave me my card back when he was finished.

I have been to the police too, but I won't take it any further, because I work with this guy.

I rang my bank and they won't give me £500 back, are they being unreasonable?

What is the difference between that scam and what the OP is attempting?

BTW I am not saying the OP is a scammer, if this has happened to them, it is a hard lesson to learn, but not the banks fault at all.

jamesd

liam8282, no requirement to do that. But as you can see from my earlier post I do think that he should assist with prosecution, because otherwise there surely will be future offenses. They clearly were not friends and he has no reason to protect them and let them harm others later.

The drinking with friends strengthens his case, since stupid games when drunk are not surprising - increasing the reason he had to believe that they had simply thought better of the silly game and returned the items.

I don't see, say, anyone saying he should have reported the absence of the phone (how during the short time window?) in case they made calls to an expensive place with it. Maybe it's not as obvious as it is with the card now we know in retrospect that a crime did happen with that?

jamesd

liam8282 wrote: »

What is the difference between that scam and what the OP is attempting?

You effectively accepted the liability when you freely provided the card and PIN without duress. The bank will not and should not pay.

See for example case 46/1, last paragraph: "In any event, he had given his mother the card and PIN voluntarily. If she had then used them for purposes which he had not intended, that was a matter between them". Not even the Consumer Credit Act is enough to protect you in that situation.

In philD's case the card and PIN were not voluntarily handed over. Very different case.

Of course, people can lie, but the burden of proof is on the issuer, not their customer. Someone may get away with it once. Maybe even twice, but when it starts to become a pattern, life is not going to be so easy.

liam8282

jamesd wrote: »

You effectively accepted the liability when you freely provided the card and PIN without duress. The bank will not and should not pay.

I would use the same story as the OP, obviously.

jamesd wrote: »

In philD's case the card and PIN were not voluntarily handed over. Very different case.

I don't believe it is.

jamesd wrote: »

Of course, people can lie, but the burden of proof is on the issuer, not their customer. Someone may get away with it once. Maybe even twice, but when it starts to become a pattern, life is not going to be so easy.

Yes people can and do lie, as could the OP be lieing in this case.

The burden of proof IMO would rest on the fact that the OP went to the police and took it no further. There is no crime reported, no crime committed, no evidence of a crime, no record of a crime. IMO that would be enough evidence for the bank and also the FOS.

You disagree, fair enough. :T

callum9999

jamesd wrote: »

The problem for HSBC is that they have to prove gross negligence when the means to contact them about it was also removed during the short time window when the theft happened and when he had no reason to believe that the PIN was compromised. I don't think they can get that to the gross negligence level, so I think that there is a significant chance that the FOS will follow the precedents I gave earlier and rule in his favour.

Just him knowing the card wasn't in his possession isn't sufficient to prove gross negligence. Particularly not when the phone he could have used to contact them was also taken for long enough for the theft to happen.

For him this discussion makes little difference. The FOS precedents provide sufficient reason for him to appeal then go to the FOS if the appeal is rejected, because any chance of a refund beats none. Hopefully he'll tell us how it went.

Now in general if someone so much as even opens a new card envelope and passes it to you with a sorry note, you should report that to the card issuer so they can cancel the card. Did that myself recently. That's because the person had the chance to note the number, dates and CVV2 and some places will allow orders with that much information. So philD did need to report it once he knew that the card was used fraudulently and also should have done, IMO, given the circumstances he was in, as soon as he got his phone back. But me thinking should have is not the same as the gross negligence standard.

From HSBC's perspective, the phone was never taken though surely? If it was stolen it should have been reported to the police - the fact that he not only didn't do so, but is refusing to do so, suggests that it never happened.

I can't speak for how the FOS would see it, but in my book if you actively and continuously refuse to report a crime, and provide zero evidence of it taking place, then the crime never happened.

I know if I call up my insurer and go "someone just broke into my house and stole a brand new £1k TV - I haven't got a receipt, refuse to give details of where/when I purchased it and won't tell the police about it" I would get laughed off the phone!

Le_Pip

jamesd wrote: »

In philD's case the card and PIN were not voluntarily handed over. Very different case.

Of course, people can lie, but the burden of proof is on the issuer, not their customer. Someone may get away with it once. Maybe even twice, but when it starts to become a pattern, life is not going to be so easy.

They may not have been voluntarily handed over however he knew they had taken his taken card.

philD wrote: »

3. Later, friend E became very flirty but I felt my wallet being removed from my pocket. Confronted friend E and asked for my wallet back. Friend E pointed out that my wallet was on the floor. I picked the wallet up and looked at the cards in my wallet. My HSBC debit card was missing.

4. Confronted friend E again, said I would count to ten and if she didn't return the card I would throw them out. Counted to 10, no card so threw them out. Approx time 06:40 on 15/06.

Now if some new friend of mine tried to lift my wallet, pretending that they had not tried to steal it by saying it was on the floor. Then upon checking I saw my card had been taken I would know they were up to no good. I would argue that this is gross negligence. He knew someone took your card and did nothing about. Indeed continues to do nothing about it.

I would have more sympathy if he referred this matter to the police and got them arrested. However as it stands he seems content in letting someone else get away with theft but expects his bank, and ultimately all its customers, to cover his losses.

Jog on.

marleyboy

Must admit as soon as the card slid itself back through my letter box, a complete removal of their arms with a rusty knife would follow......just for a laugh of course

ihateyes

Phil read HSBC's t&c's..... learn it as a lesson. i have copied and pasted the specific points:

http://www.hsbc.co.uk/1/PA_1_1_S5/content/uk/pdfs/en/General_Current_Accounts_Aprl1.pdf

26.5.3. You will be responsible for all losses arising
from unauthorised transactions on your account as
result of:

• you acting fraudulently, or
• you intentionally or with gross negligence failing

to use your card, TBS and/or PIB in accordance with
the Terms (including keeping safe your card, PIN or

any other security or personalised details), or

• you intentionally or with gross negligence failing

to notify us in accordance with clause 9.3 of the
loss or theft of any card, PIN, or other security or

personalised details.

9.3. If any card, PIN, security device or security

details are lost or stolen, or you suspect that
someone has used or tried to use them, you
must tell us without delay by calling us on the

applicable number set out in the table overleaf.

So even once he got his phone back, he failed to inform the bank.