O Itaú opened a lawsuit against the Nubank, Banco Inter, Bradesco, Santander, Banco do Brasil, Original, Sicredi and Bancoob: financial institutions are accused of not returning almost R $ 1 million received in double via Pix due to a system error. BB states, however, that the Central Bank only allows its own customers to reverse this type of transfer.
Itaú’s initial complaint and Banco do Brasil’s appeal were obtained by the Cointelegraph Brazil; the lawsuits run in secret at the TJSP (São Paulo Court of Justice).
Itaú accuses Nubank and others of “omission”
In the lawsuit, Itaú explains that it suffered a “systemic error” when making transfers via Pix in November 2020, when this new payment method started to work. Basically, the money went to other banks twice: if the customer sent R $ 1,000, the recipient would receive R $ 2,000.
The total amount of undue transfers was R $ 966,392.86. The company contacted some of its account holders to ask the recipients to return the duplicate amount; remember that Pix has a chargeback feature, which can be either partial or total.
In addition, Itaú sent an email to Nubank, Bradesco and other financial institutions notifying them of the failure and asking for an immediate reversal of the amounts. The bank claims that “the operational issue could be resolved if the defendants had not been silent”, and says that they promoted “unjust enrichment” of their clients.
For Itaú, this alleged omission would subject banks to the terms of the Civil Code, which says: “whoever, by voluntary action or omission, negligence or imprudence, violates the right and causes harm to others, even if exclusively moral, commits an illegal act” .
Itaú receives favorable decision …
In December, the judge Carlos Eduardo Borges Fantacini of the 26th Civil Court granted emergency relief. That is, after being notified, banks would have a period of 48 hours to block the amounts received twice, if they were still available in the customers’ account.
In his decision, the magistrate affirms that the systemic error is evident, and that the obligation of restitution is “inevitable”. As defendants of the amounts in question, the defendants could “make a chargeback and / or debit the respective amounts from their clients who have been unduly benefited”.
Double transfer failures occur “with some frequency”, says Itaú, and have already happened with banks that are now being sued. Justice often authorizes financial institutions to block and reverse values.
… But BB wins appeal in court
However, this would be different at Pix, according to the appeal filed by Banco do Brasil. This form of transfer has its own Central Bank regulation, with a specific section for the reversal of values - and only the person who receives the money has the power to return it.
“The return of a Pix must be initiated by the receiving user”, says the regulation. This request must be initiated no later than 90 days after the original transaction.
As BB notes, “there is no provision for the return to be made by the financial institution in which you maintain your account”. For this reason, the decision of emergency relief would be illegal.
BB also argues that it cannot be accused of interference in this case because the transferred amount is credited immediately to the recipient’s account. “If the credit is instant, it cannot be attributed to Banco Agravante [BB] any undue credit, but rather to the aggravated bank itself [Itaú]”, Says the resource.
BB’s administrative area manually processed the locks on accounts that had a balance and received twice the Pix. But, for the state-owned bank, Itaú should request double returns directly from the recipients of Pix, not from the institutions of which they are clients.
On January 11, the rapporteur Cauduro Padin of the 13th Chamber of Private Law granted an injunction to reverse the decision that benefited Itaú, suspending the 48-hour period for blocking amounts.
In a statement to the Tecnoblog, Itaú says:
Itaú Unibanco does not comment on lawsuits that are secret to justice. The bank clarifies, however, that customers who had double debts due to an occasional operational failure were reimbursed immediately. The bank also points out that judicial action is a usual measure among institutions in this type of situation, as it brings legal certainty for them to reverse the accounts wrongly credited.
The case is pending at the TJSP under the numbers 1117873-97.2020.8.26.0100 (1st degree) and 2302919-54.2020.8.26.0000 (2nd degree).