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In Brazil, it's not uncommon for criminals to kidnap someone and coerce them to give them money from their bank accounts. This can be done by taking the victims to ATMs or even demanding a transfer via the victim's bank app, all at gunpoint!

In many cases, after the victims sued, Brazilian courts ordered banks to cover all the victims' losses. The rationale is that the technology that makes this kind of crime easier is not just a convenience to bank clients, but also plays in favor of banks (for example, by reducing their staff), so banks cannot claim they are not liable.

My question is: how is this matter treated in American courts?

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At least for the "ATM at gunpoint" case, the bank is required to reimburse all but $50, provided that you report the incident promptly.

Regulation E of the Consumer Finance Protection Bureau (12 CFR Part 1005) governs electronic fund transfers. Section 1005.2 defines "unauthorized electronic fund transfer" as "an electronic fund transfer from a consumer's account initiated by a person other than the consumer without actual authority to initiate the transfer and from which the consumer receives no benefit". And there is an official interpretation that this includes:

  1. Access device obtained through robbery or fraud. An unauthorized EFT includes a transfer initiated by a person who obtained the access device from the consumer through fraud or robbery.

  2. Forced initiation. An EFT at an ATM is an unauthorized transfer if the consumer has been induced by force to initiate the transfer.

Although it's not quite in keeping with everyday usage, the context of the regulation makes it appear that "transfer" includes cash withdrawals.

Liability rules for unauthorized transfers are in Section 1005.6. In summary, if the "loss or theft of the access device" (which I assume would be read to include a forced usage) is reported to the bank within two business days, the consumer is only liable for the first $50 of the loss; the bank must reimburse the rest. If it is not reported within two business days, then the consumer is liable for the first $500. The bank must credit the consumer's account, at least provisionally, within 10 business days (Section 1005.11).

This rule doesn't directly address the case of forced use of a bank's online services or mobile app. I don't know if it would be treated the same.

Many banks offer "zero liability" fraud policies that go beyond what the law requires. Those may or may not apply to the situations you describe; you'd have to read the policy of the specific bank to know for sure.

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  • Good catch! This regulation was first enacted on November 14, 2016 (although it has been revised twice since then). The fraud prohibition is longstanding. I believe that the forced initiation provision is new.
    – ohwilleke
    Commented Nov 7, 2022 at 6:21
  • @ohwilleke: Regulation E is much older than that; I believe it is the implementing regulation for the Electronic Fund Transfer Act of 1978. It was a Federal Reserve regulation before the CFPB took over this regulatory role. And the "forced initiation" interpretation goes back at least to 1996; it appears at 61 FR 19687.
    – Nate Eldredge
    Commented Nov 7, 2022 at 6:34
  • Any relevant case law?
    – sourcream
    Commented Nov 7, 2022 at 18:00
  • @sourcream: I don't know of any. In the vast majority of cases, the bank would be complying with the regulation and so there would be no dispute for a court to address. And cases of non-compliance are usually settled directly between the bank and the regulator without going to court. I wouldn't be too surprised if this provision has never been tested in court.
    – Nate Eldredge
    Commented Nov 7, 2022 at 18:41
  • @NateEldredge Thanks. I stand corrected.
    – ohwilleke
    Commented Nov 7, 2022 at 18:46

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