Reminder of the strictness of the foreclosure period applicable to unauthorized payment transactions

 

It follows from Article L. 133-24 of the Monetary and Financial Code that the user of payment services must notify his payment service provider of an unauthorized or incorrectly executed payment transaction at the latest within 13 months of the debit date under penalty of foreclosure, unless the payment service provider has not provided him with the information relating to this payment transaction.

Moreover, the bank's contractual liability can only be incurred if the appellant demonstrates not only a fault on the part of the bank, but also that this fault would have directly caused it certain prejudice.

The right to payment services derives, in our country, from Ordinance No. 2009-866 of July 15, 20091which itself finds its source in Directive No. 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market (known as DSP 1)2. The state of the applicable law, which has undergone some changes due to the transposition of the provisions of Directive (EU) No. 2015/2366 of 25 November 2015 on payment services in the internal market (known as DSP 2)3by order no. 2017-1252 of August 9, 20174, is very favorable to users of payment services.

Be careful though: it still has some stricter provisions, and in particular a fairly short foreclosure period of 13 months5, which can sometimes be problematic for bank customers. A decision of the Metz Court of Appeal of July 7, 2022 bears witness to this.

In the instant case, on 1 March  2010, a housing savings plan (PEL) had been subscribed with Bank X by Mr and Mrs I.  on behalf of their daughter, who was a minor at the time. However, on November 7, 2011, the funds appearing on this PEL, ie €32,689.39, had been transferred to the current account opened in the name of the person concerned. Then, the next day, a transfer in the amount of €32,800 was made, debited from this same current account, in favor of the company GCS.

Having become of age from March 1 ,  2012, Miss I.  had, by letters dated January 8, 2015 and March 11, 2015 then by registered letter with acknowledgment of receipt dated July 3, 2015, requested the restitution by the bank of sum of €32,800 plus interest at the legal rate. As the bank did not respond to these requests, the applicant had summoned her to the commercial chamber of the Metz court.

By judgment delivered on March 16, 2021, the commercial division of the Metz judicial court had declared inadmissible due to foreclosure the action of Miss I.  against bank X and had ordered her to pay to this last the sum of €1,500 pursuant to the provisions of Article 700 of the Code of Civil Procedure .

To determine this, the court noted that under the terms of the provisions of Article L. 314-1 of the Monetary and Financial Code , the transfer constitutes a payment transaction and that, therefore, the foreclosure period provided for in article L. 133-24, the same code is applicable to debit transfers made on 7 and 8 November 2011 to the accounts of Miss I.  when the latter was a minor and did not have the legal capacity to give payment. The applicant then appealed.

His criticisms were manifold. First, it maintained that its request was admissible, and considered that the foreclosure provided for in Article L. 133-24 of the Monetary and Financial Code was not applicable, insofar as the payment service provider, the bank X, did not demonstrate that it had provided it with the information relating to the payment transaction. Miss her I. further considered that the monthly statements of the PEL and the account opened in his name produced by the credit institution were insufficient to demonstrate the transmission of information relating to the payment transaction to the account holder or his legal representatives. She specified that the bank did not justify either the actual sending or their receipt by herself or by her legal representatives when she was a minor.

Furthermore, Ms. I. argued that Bank X had breached its contractual obligations by making two transfers, one from the savings account to its current account and the other from its current account to that of a third-party entity, without order, before close the account. She observed, on this subject, that the bank did not justify the identity of the originator, and that assuming that it was the company CGS, it was not its legal administrator. She also argued that the bank did not justify having complied with the rules relating to the release of funds present on a PEL, for a reason which would be related to the financing of an acquisition, a construction, or works. It further maintained that the transfer had been made on the sole initiative of bank X to the company CGS which held the accounts,

The Metz Court of Appeal then rules in a decision of July 7, 2022. The latter is rich in information both about the admissibility of the challenge to the transfer of €32,800 (I), and to the regarding the contestation of the closure of the PEL and the transfer of the balance to the credit of the current account (II).