taking a bank to court

[KCQ]

What is the name of your state? California

I need to take Bank of America to court for not following provisions of the Electronic Funds Transfer Act.

Someone fraudulently accessed my bank account via the ATM. I always had my card in my possession and did not give out my PIN number. After doing research, I found that fraudsters have a way of copying card & PIN Information. I did notify the bank immediatley.

The bank did not do a proper investigation under the ACT. The bank claims that since I did not lose my card or compomise my PIN, the transactions were authorized. Banks, however, have the burden to prove that I did not receive benefit from the transactions.

My questions:

1) Who do I serve the summons to..The bank officer at my local branch?

2)Do small claims courts recoginze Federal regulations(i.e. Reg E and the EFTA.

3) The act provides for Treble damages. Can I sue for treble damages in small claims

4) If I can sue for treble, my ATM loss is $1,420 . Is treble 3 times $1,420, plus the original amount, or just the $4,260.

Thanks in advance!

 

[JETX]

Based solely on the information provided in your post, I doubt that you have a case...... however,

"Who do I serve the summons to..The bank officer at my local branch?"
*** Neither. You would serve notice of your suit on the registered Agent for Service of the bank.

"Do small claims courts recoginze Federal regulations(i.e. Reg E and the EFTA."
*** They can, but are often reluctant since they are not familiar with US Code.

"The act provides for Treble damages. Can I sue for treble damages in small claims"
*** If applicable (again, which I doubt from your post), yes. But only up to the jurisdictional limit of that court.

"If I can sue for treble, my ATM loss is $1,420 . Is treble 3 times $1,420, plus the original amount, or just the $4,260."
*** Only three times the amount of claimed damages.


However, just curious:
"The bank did not do a proper investigation under the ACT."
*** How EXACTLY did the bank fail in their investigation??

"The bank claims that since I did not lose my card or compomise my PIN, the transactions were authorized."
*** And that is a reasonable assumption.

"Banks, however, have the burden to prove that I did not receive benefit from the transactions."
*** Uh..... where did you get that from?? The bank met their burden (15 USC 1693(g) when they were able to show that your card and your PIN was used.

 

[KCQ]

Thanks JETX...please see below...

However, just curious:
"The bank did not do a proper investigation under the ACT."
*** How EXACTLY did the bank fail in their investigation??

the research I have done shows that fraudsters have methods of obainiing pin#s and copying cards.

please see the following:

From American Banker, 11-20-01

"...In the early days of card skimming, Mr. Berry said, fraudsters would place a false card reader over the normal slot. They would also use a camera to record the cardholder's PIN. But this technique was far from perfect, because they would have to match each card's information with the correct PIN.

And the technology was cumbersome, Mr. Berry said. For example, when a card was ejected from a machine, the customer might have noticed that the card was more difficult to remove.

More recently, Mr. Berry said, thieves have developed skimming devices that are more "elegant in terms of design, so they look like they belong on the ATM."

Fraudsters can now place exact-duplicate PIN pad overlays over actual PIN pads. "This device is made very thin," Mr. Berry said. "And within it is a transmitter and a chip to record the PIN." So when the cardholder presses down on the PIN pad, both the overlay and the actual PIN pad record the PIN. The transaction goes through, but the cardholder's information is recorded on the false PIN pad and immediately transmitted to the thieves.

The fraudsters then fabricate duplicate cards with the cardholder's
information and use the copied PINs to withdraw cash at other ATMs, Mr. Berry said."

The customers do not know they've been hit until checks bounce, they review their account or receive a statement."


And look to at OCC Advisory 2001-9,

http://www.occ.treas.gov/ftp/advisory/2001-9.txt

In part, it says,

"The OCC is concerned that some banks may be rejecting claims of unauthorized transactions solely because the customer's Automated Teller Machine (ATM) card or debit card and personal identification number (PIN) were used in the transaction, and the customer supplied no information indicating that the card or PIN was misappropriated. These facts alone may be insufficient to establish that a transaction was authorized because fraudulent means may have been used to obtain the customer's
account number, card, or PIN. For instance, the customer may have been a victim of "shoulder surfing," a practice used by criminals to obtain account or card numbers or PINs by observing customer transactions.

Therefore, banks cannot assume that they have satisfied their duty to investigate simply by concluding that the customer's debit card and PIN were used in the transaction at issue. Rather, banks must take steps to investigate whether there are indications that unauthorized use occurred."


http://www.occ.treas.gov/ftp/advisory/2001-9.txt


"Banks, however, have the burden to prove that I did not receive benefit from the transactions."
*** Uh..... where did you get that from?? The bank met their burden (15 USC 1693(g) when they were able to show that your card and your PIN was used.

please see above.

 

[JETX]

I know of the ways to 'scam' an ATM. But the availability of those methods does nothing to show that the bank failed in their diligence or investigation.

One other thing to consider.... unless there was a mechanical malfunction, the bank should have a picture of the person accessing your account at that time. Kind of embarassing if that were a picture of you..... with your claims that it wasn't your card. Have you asked about the photo??

 

[KCQ]

one of the reasons i believe the bank did not do a proper investigation is that they did not review photos. according to the bank all three withdrawals took place at their own atms. i requested photos immediatley after i filed the claim and police report. the bank originally told me they would have the photos available before 30 days. this time came and passed. now i have requested photos a second time and the fraud investigater told me i may have to wait an additional 3-6 weeks.

if the bank did a proper investigation, they would compare these atm photos with undisputed withdrawals.

 

[JETX]

Okay, if you really want to try to proceed with legal action against them...... here is what you need to do:

Sell everything you own. Gonna' need that money to hire an attorney. Not for your proposed small claims action, but for the attorney you will need when the bank moves the case to a higher court. Also, you will need an attorney in that higher court since the bank will obviously have one. And be sure to set aside a year or so for this matter to be heard (depending on local dockets). And after all this, you will be able to offer your case.... that the bank was in violation of federal laws. But, in my opinion, based solely on the information in your post, I doubt it will get that far. I see a Summary Judgment in your future....... for dismissal of the case.

 

[KCQ]

well, JETX, i guess that is why this is the free advice forum. actually, after reading your responses, i feel as though someone should be paying me.

do you really think the bank would want to waste their resources by taking this out of small claims for $5,000? get real.

 

[JETX]

Obviously, you simply don't understand the issue of litigation.
There are LOTS of reasons that a bank (or any other defendant with available resources) will move a case from small claims.... the least of which is having representation by an attorney.
For example:
1) a simple motion to move the case costs very little to make.... and in a lot of cases brings a closure to the issue since the plaintiff (you) is usually not willing to spend the money on an attorney.... which puts you at a HUGE disadvantage when fighting against one.
2) the bank simply can't risk that you would win..... and possibly open themselves to other nuisance claims and possible public comment.

In any case, go ahead and file your suit. No 'skin' off my nose. You never know what might happen.....

 

[KCQ]

Well JETX, at least you are writing a more reasonable, and less accusatory, response. I can appreciate that... thank you.

With regards to the claim, the point has just become irrelevant as the bank today reversed its decision, which i believe is based on a threat of pending media exposure. I e-mailed all local tv stations and newspapers. One local paper responded. That was all I needed.

A point that may or may not be of interest to you. I contacted several class action attorneys and at least one notable firm found it of interest. I believe, based on my research, that the bank's unjust denial of my claim may be just one of many.

 

[JETX]

Congratulations on your resolution to this matter.

However, it is important to realize that their reversing their decision was very likely not based on any legal issues, but was done either as a recognition of an error on their part... or was done as a gesture of 'good customer relations'.

I might add, my earlier posts were not 'accusatory', but only offered a different view of the possible facts.