The client became a victim of a perfidious scam, which was increasingly observed in the reporting year. The unknown perpetrators specifically look for people of advanced age, contact them by telephone and pretend to be police officers. The false police officers claim that a close relative of the victim is in an extraordinary emergency situation, e.g. because he has culpably caused a car accident, and urgently needs cash, otherwise he will suffer substantial disadvantages. In the present case, the perpetrators claimed that the daughter needed CHF 55 000 for a deposit. In the background, the client heard the alleged daughter sobbing without being able to speak to her. The perpetrators built up massive pressure so that the client was finally persuaded to go to the bank immediately, where she could only withdraw CHF 40 000 from her savings account due to an existing withdrawal limit. She handed this amount over to the alleged policemen together with jewelry. The jewelry was insured, but the cash was lost.
The client’s son severely reproached the bank in connection with the withdrawal of the money. In his opinion, the bank should not have paid out such a large amount of money to his elderly mother without asking her about the purpose of the withdrawal and whether she needed advice or support. The withdrawal of money by his mother, who regularly withdrew only much smaller amounts, had been completely unusual for her, which should have been noticed by the bank. Since the bank had acted carelessly, he demanded compensation for his mother.
The bank rejected the accusations and refused to make any concessions. It explained that the client was unaccompanied when she visited the bank. No one had been waiting for her either. She had been informed of the withdrawal conditions and asked whether she really needed such a large amount in cash immediately. She had denied this and had stated that she would look into it with her daughters. Contrary to the bank’s recommendation to discuss the cash withdrawal with her daughters first, she had insisted on the payment of CHF 40 000 within the withdrawal limit. She did not seem nervous, stressed or confused during the whole conversation.
The son then contacted the Ombudsman. His mother denied that she had told the bank that she wanted to consult with her daughters. She only had one daughter, who had been the trigger for the sudden procurement of funds, as suggested by the fraudsters. In addition, the son was of the opinion that the bank had violated the Agreement on the Swiss banks’ code of conduct with regard to the exercise of due diligence (CDB) with the disbursement, as it had known his mother’s client profile and could have easily determined that the withdrawal of money was unusual for his mother.
The Ombudsman explained to the client’s son that, in his view, it would be desirable for bank staff in such a case to explicitly address the issue of fraud in its known forms (grandson trick, false craftsmen or policemen) in order to find out whether there was such a reason for an unusually high cash withdrawal. In connection with a cash withdrawal, a bank does, however, not act in an advisory capacity and is in principle obliged to make a payment requested by the client if there were no signs of an incapacity to judge. It was not obliged to check whether the use of the money withdrawn was sensible and in the interest of the client.
Of course, one can ask whether a bank has to assume a supervisory and control function with elderly clients. It is also understandable if victims of fraud and their relatives hold such views. However, in the Ombudsman’s view, legal doctrine and court practice do not impose such a responsibility on banks. He is also aware from a number of cases submitted to him that many clients do not appreciate and react very indignantly when they are asked about the reasons for a cash withdrawal or when even their ability to judge is questioned.
In the present case, the problem also arose that the content of the conversation was presented differently by the bank and the client. This could not be clarified in the ombudsman proceedings, as the ombudsman is not allowed to question the credibility of the parties and does not take evidence.
As the Ombudsman understands it, the CDB and money laundering regulations mentioned by the client’s son as a basis for a claim do not have the purpose of imposing an obligation on banks to question clients’ decisions and to check whether they may have been made on the basis of incorrect assumptions. They do not contain any regulations to this effect.
The Ombudsman could well understand that the incident was very stressful for the client and her relatives and that the son was looking for ways to help his mother get compensation for the damage. However, he did not see any valid arguments in this case for placing the responsibility for the incident on the bank and persuading it to make concessions.
The case was subsequently picked up by various media. They used the opportunity to warn against such fraud methods with the help of experts. Unfortunately, such warnings cannot be given often enough. In addition, possibilities to avoid such incidents were discussed, such as the introduction of withdrawal limits at the counter or systematic inquiries with relatives when elderly clients request larger amounts of cash. Such measures, which require the cooperation of bank clients and their relatives, would certainly have advantages. However, without the consent of the bank clients, such a major encroachment on their autonomy could not be justified. In the case of persons capable of acting, there is also the problem that they could independently revoke such instructions without the involvement of their relatives. It therefore remains very challenging to find satisfactory solutions in this field of tension.