Misuse of credit cards, giro cards etc. after card and PIN have been intercepted or stolen from the mailbox
It is becoming increasingly common that when a credit card or giro card is sent and the corresponding PIN is subsequently sent by post, either the card and PIN do not even get into the bank customer’s letterbox or the card and PIN are systematically stolen from the letterbox. The card and PIN are then used. The bank customer only notices this when he receives the monthly credit card statements or bank statements of account. It is of course very annoying if the credit card company or the house bank demands 10,000 € from you within 10 days.
According to a survey conducted by Stiftung Warentest in February 2018, up to 2,000 cards are “lost” each year in Berlin alone.
What is the legal situation regarding credit card fraud? It is important who takes the responsibility for the card loss
According to Attorney Fürstenow, the facts described above are to be divided into two categories:
- Credit card/giro card and PIN do not get into the bank customer’s letterbox at all, or
- both are placed in the bank client’s letterbox, but are illegally stolen from it.
In fact, it is difficult to prove whether one or the other was true, unless the letterbox was obviously opened by a violent objection. Ultimately, the bank customer only finds out that he has not received a credit card or giro card or a PIN.
1. credit card or giro card and PIN do not get into the bank customer’s letterbox at all
As long as the credit card or giro card and/or PIN has not entered the customer’s sphere of control, the credit institution or bank shall bear the so‐called transmission risk pursuant to § 675 m Para. 2 German Civil Code (BGB). The bank shall be responsible for ensuring that all necessary and economically reasonable measures are taken to ensure that the payment authentication instrument is sent securely, is not misused and that any damage is kept to a minimum. Therefore, as a rule, the bank must prove that the credit card and/or PIN have actually been received by the bank customer by placing them in his letterbox. Attorney Fürstenow believes that as long as such proof is not provided by the bank, it remains to be argued that the credit card or giro card and PIN were not thrown into the bank customers letterbox, but rather that they had already been lost during the mailing.
The theft of a credit card or giro card by a “post robber” together with the corresponding PIN sent later by post is made possible and promoted by the fact that credit institutions sometimes send the PIN quite promptly after the credit card or giro card has been sent, whereby in recent years the post office delivers mail generally with delay and keeps letters for several days. This makes it possible for the credit card or giro card and PIN to be placed in the same “postbag”, which is then stolen, or for the card and PIN to be placed in the letterbox at the same time.
For example, there are cases where Consors Finanz has already sent the PIN three days or Postbank only five days after the credit card was supposedly sent. According to Fürstenow’s legal opinion, this constitutes a violation of the statutory obligation under § 675 m German Civil Code (BGB).
2. credit card or giro card and PIN are transferred to the control area, i.e. letterbox, of the bank customer
If a credit card or giro card and/or PIN has come into the control of the bank customer, i.e. has been dropped into the letterbox, the bank customer also has certain obligations pursuant to § 675 l German Civil Code (BGB). In principle, the bank customer is responsible for the security of his area of control, i.e. his own letterbox. Attorney Fürstenow believes, however, that such an obligation cannot lead to the bank customer having to take further precautions via the usual precautions of a lockable and difficult to access letterbox. In particular, the bank customer does not need to ensure the complete security of his letterbox. According to Mr Fürstenow, this would be disproportionate in view of the fact that credit institutions have other options for making credit cards or giro cards and PINs available to their bank customers. The bank customer cannot take any action against the systematic spying on his letterbox. After all, clients cannot lie in wait 24 hours a day. Bank customers cannot and do not need such all‐round protection.
What should bank customers do in any case if their unused credit card or giro card has been misused?
In any case, Attorney Fürstenow advises to inform the bank immediately upon becoming aware of such card misuse. The bank decides whether the bank customer or the bank itself files the criminal complaint against the unknown person.
In any case, bank customers should not put up with it if the bank refuses to compensate the loss incurred and refuses to compensate the bank customer’s negative balance resulting from card misuse.
What could credit institutions and banks do to prevent such credit card fraud?
Credit institutions have a number of more secure ways of making credit cards and PINs available to their bank customers. For example, a credit card or giro card can be sent using the so‐called PostIdent method, whereby the bank customer has to identify himself with his identity card in a post office in order to receive the card; or the bank can have the bank customer confirm that he has received the card before the PIN is sent; or the banks could offer the bank customer to collect his credit card or giro card in a post office branch of his bank. Despite these possibilities and despite the continuing abuse by theft from the post office or the letterbox, the credit institutions, such as the Berliner Sparkasse, or Postbank, continue with this risky postal, albeit inexpensive dispatch. According to Attorney Fürstenow, this cost saving must not, however, be at the expense of the bank customer.
If you, too, have been harmed by such card misuse, Attorney Sascha C. Fürstenow will be happy to advise you on this and will offer a free and non‐binding initial assessment of your circumstances in advance.