Misuse of credit cards, giro cards etc. after card and PIN have been inter­cepted or stolen from the post office / mailbox

Unfor­tu­nately, it seems to be becoming increas­ingly common that when a credit card or giro card is sent by post and the bank subse­quently sends the corre­sponding PIN, the bank card and PIN either do not reach the bank customer’s mailbox at all or that the card and PIN are system­at­i­cally stolen from the mailbox. With the card and PIN, thieves can then use the credit card or current account to withdraw money or go on a shopping spree. Bank customers sometimes only notice any of this when they receive their monthly credit card statement. It is then of course very annoying if the credit card company suddenly demands 9,000 € from one within 10 days.
According to a survey by Stiftung Warentest in February 2018, up to 2,000 cards are “lost” annually in Berlin alone.

Often the banks or credit insti­tu­tions refuse to refund unautho­rised debits on the grounds that, according to the appli­cation to open an account, the bank customer is obliged to contact his bank if the credit card has not arrived after 14 days and the bank customer has let these 14 days pass, so that the necessary notifi­cation and associated card blocking could not be made in time.

 

What is the legal situation regarding credit card misuse? It depends on who is at fault!

The facts described above have to be divided into two facts, explains lawyer Sascha C. Fürstenow: Either the credit card and PIN do not reach the bank customer’s mailbox at all or both reach the bank customer’s mailbox but are illegally stolen from it. In fact, it will be difficult to prove whether one or the other has been carried out, unless the mailbox has obviously been opened by force. In the end, the bank client will only find out that he has not received a credit card or giro card, nor a PIN.

 

Credit card or giro card and PIN do not enter the bank customer’s area of control (mailbox) at all

As long as the credit card and/or giro card and/or PIN have not come under the control of the customer, the bank or credit insti­tution shall bear the trans­mission risk, § 675m para. 2 BGB. The bank shall be respon­sible for doing every­thing necessary and econom­i­cally reasonable to ensure that the payment authen­ti­cation instrument is sent securely, is not misused and possible damage is kept to a minimum. As a rule, the bank shall be required to prove that the credit card and/or PIN have actually been delivered to the bank customer (by placing them in the customer’s mailbox). If such proof is not provided, it remains to be objected that the credit card and/or giro card and PIN were not dropped in the bank’s own mailbox, according to attorney Fürstenow.

The fact that a credit card or giro card with the corre­sponding PIN sent at a later date was both stolen by a “mail robber” in the post is made possible by the fact that, on the one hand, the credit insti­tu­tions sometimes send the PIN very soon after the credit card or giro card was sent, and on the other hand, that in recent years it has become increas­ingly common for the post to be collected for several days instead of being delivered promptly. It is therefore quite possible that the credit card or giro card and the PIN end up in the same “mailbag”, which is then stolen, or that the card and PIN end up in the mailbox at the same time.

For example, there is one case where Consors Finanz wanted the PIN to be sent three days after the credit card was supposed to have been sent, even during the pre-Christmas period. According to the opinion here, this repre­sents a violation of the legal oblig­ation under § 675m BGB.

 

Credit card or giro card and PIN reach the bank client’s area of control (mailbox)

If credit card or giro card and/or PIN have come into the bank client’s sphere of control, i.e. have been thrown into the mailbox, the bank client is also subject to certain oblig­a­tions pursuant to § 675l BGB. In principle, the bank client is respon­sible for the security of his area of control, i.e. his own mailbox. However, according to the view here, this cannot lead to the bank client taking further precau­tions beyond the usual precau­tions of a lockable letterbox, in particular not guaran­teeing the complete security of his letterbox. This would be dispro­por­tionate in view of the fact that the credit insti­tu­tions have other possi­bil­ities to provide their bank client with a credit card or giro card and PIN, argues SCF. More on this below. For example, the bank client cannot do anything against systematic spying on his mailbox. He cannot lie in wait for 24 hours. The bank customer cannot and does not need to guarantee an all-round protection.

 

How should bank customers behave in any case if their credit card or giro card that was not received was misused? Lawyer Fürstenow advises:

In any case, the bank should be informed immedi­ately upon becoming aware of such card misuse. It would then have to be agreed with the bank whether the bank client or the bank itself would file criminal charges against unknown persons or whether the bank considers a criminal charge unnecessary.

In any case, bank customers should not put up with the fact that their bank or credit insti­tution refuses to compensate for the loss incurred and to balance the bank customer’s negative balance resulting from card misuse.

 

What could the credit insti­tu­tions and banks do to prevent such credit card misuse?

Banks have far more secure methods available to them to provide their bank customers with credit cards or giro cards and PINs. For example, a credit card or giro card could be sent using the so-called “Postident” procedure, according to which the bank customer has to identify himself with his identity card at a post office branch in order to receive the card. Or the bank could have the bank client confirm that he has received the card before the PIN is sent. Or the banks could offer the bank customer to pick up his credit card or giro card at a branch of his bank. Even direct banks often cooperate with stationary banks and could offer such a service for the security of their bank customer. Never­theless, banks, such as Berliner Sparkasse, still stick to the insecure, but most cost-effective, simple postal route. However, this cost saving must not be at the expense of the bank customer.

 

Victims of credit card misuse — What you can do

 

If your credit card or giro card has also been misused and the credit card company or the bank where your account is held does not credit the amount charged, you are welcome to contact Lawyer Sascha C. Fürstenow.

 

The following questions and infor­ma­tions are important:

  • Is your case involving a credit card or a giro card?
  • How much is a negative balance due to unautho­rized use of your credit card or giro card (amount debited)?
  • Was the abuse caused by the fact that you never received your (new) credit card or giro card?
  • When did you become aware of the misuse of your credit card or giro card?
  • When did you report the misuse to your credit card company or bank, file a complaint and have your credit card or giro card blocked?
  • the letter of complaint with the relevant bank state­ments or credit card statements;
  • the negative reply from your credit card company or your bank and in case there were special features that struck you as strange after­wards (e.g. in corre­spon­dence with the bank).