Bessinger vs FNB

Me and my wife went to Barcelona Spain for our 25th wedding anniversery. We have been the victim of card cloning. As follows refusal of FNB to re inburse the money, despite proof that we were not negligant and did not compromise the pin I cannot understand how I can be held responsible, because of negligence. All the necessary procedures were followed. Everything was reported on the 31st of March plus the card was cancelled on the 31st of March and not on the 01st of April as mentioned by attached letter. You can contact my personal FNB Wealth Banker, Leigh-Ann Illenberger to confirm this. When the card was used all necessary precautions were taken to protect the pin number, hand was over numbers, checking around that no one was looking, it is not the first time my husband used my card with a pin. Card is still in my possession. Have ***** never heard of card cloning? Did ***** not think it is strange that so many duplicate transactions with the same amounts went through my account? Refer to Conditions of use: 7.1 All reasonable steps were taken to prevent any unauthorised use of the Credit Card and or pin details 7.2 FNB was notified immediately via Leigh-Ann Illenberger when faulty transactions were identified 7.3 I was not negligent in safeguarding the card 7.7 Unauthorised transactions was not solely with pin functionality, signed slips need to be proof thereof As was explained in my Whatsapp to Leigh-Ann Illenberger on the morning of the 31st of March, all my husbands cash, 155 Euro’s and 305 US Dollars as well as all slips were ****** out of his wallet I also believe my husband’s drinks were spiked, he cannot remember a lot of that evening and he was going the wrong way on the Trem back to the hotel. I was fully aware that he was going to a club, because I fell ill and had to stay in the hotel. I also gave him permission to use my credit card and are prepared to give an affidavit thereof, if need be OMBUDSMAN CORRESPONDENCE Good morning Tamaren, trust you are well. I wish I got better news, but I want to thank you sincerely for looking into this matter thoroughly

They are still hammering on the fact that the pin had to be compromised. As discussed with my husband, if a card gets cloned, ALL the information gets cloned the first time, including the PIN. That is all that is needed for the ********* to continue using the card, because they obtained all information including the most important PIN. How can we be held responsible for something like that, if we were not part of it? We have made ourselves available for lie detecting tests as per my previous email, to proof that we were not negligent in using the Pin, which will proof the card was cloned. Also in FNB’s terms and conditions it is mentioned that the customer ultimately will be responsible for ********** transactions, please fight for me

Also refer to your Bulletin-12 Card Cloning Evidence of cloning

XIMUM AMOUNTS WERE WITHDRAWN OUT OF MY ACCOUNT UNTIL IT WAS DEPLETED) FNB KEEPS SAYING THAT THE CARD WAS ONLY REPORTED AFTER THE TRANSACTIONS WENT THROUGH HOW CAN ANY TRANSACTIONS GO THROUGH IF AN ACCOUNT HAS BEEN FROZEN? IT IS NOT POSSIBLE)

The card holder is still in possession of his original card. • The pattern of withdrawals and the amounts withdrawn are very different to the normal pattern on the account. • The withdrawals or purchases take place at locations never used by the card holder before. (I AM STILL IN POSSESSION OF THE ORIGINAL CARD. THE PATTERN OF WITHDRAWALS AND AMOUNTS WITHDRAWN WERE VERY DIFFERENT TO THE NORMAL PATTERN ON THE ACCOUNT. PURCHASES TOOK PLACE AT LOCATION NEVER USED BEFORE. DID THE BANK NOT FIND IT STRANGE THAT SUCH BIG AMOUNTS, SOME OF WHICH WAS THE SAME, WAS WITHDRAWN UNTIL THE FUNDS WERE DEPLETED)

The chip and pin implamentation mentions a reduction in *****ulant cases, but it is still possible for cards to be cloned and this is what we have been stating. FNB refuse to accept this fact and are addament that the pin were compramised. There is no reasonable basis for arguing that a customer can be expected to diligently search the ATM or teller area for hidden cameras, skimming devices etc. before making a withdrawal or tendering a card for payment.

(I BELIEVE THIS IS A VERY IMPORTANT PARAGRAPH) It will therefore be important for the bank to determine how the card was cloned and the PIN observed as this may be the only way it can show that the card holder was negligent in disclosing their PIN. Only if the card holder was negligent can a conclusion can be drawn that the bank is possibly not liable for the ********** withdrawals.

Tamaren, thank you once again for your help, it is greatly appreciated

Dear Mr and Mrs Bessinger

Your below email refers. I apologise for the long awaited response.

Kindly be advised that writer hereof has fully investigated your complaint and has requested all the necessary info from the Bank. Upon re-evaluating all the evidence at hand and going back and forth with the requested info our office would like to state as follows:

As per your query, the transactions were still pending on the system; however, they had already been authorized and an authorization code was issued (the Bank provided our office with the Auth Code on the Visa Logs- this is unfortunately private and confidential information and our office may not distribute same).

▪ The transactions were flagged (including transactions declined due to insufficient funds, as the amounts were more that the available funds) by the Banks ***** Detection system due to the amounts but were considered secure as the Original Card and PIN were used. It is furthermore evident that you advised the Bank that you will be travelling to Spain where the transactions took place.

▪ You stated that you and your husband had the Card and Pin in possession. As the Bank confirmed previously, and as per system codes provided, unfortunately the Original Card and PIN were used for all the disputed transactions. There is unfortunately no evidence of a cloned card.

▪ kindly be advised that all the new cards issued by the bank are EMV (Europay, MasterCard and Visa) compliant.

▪ The attachment you forwarded to our office below, regarding the cloned cards unfortunately does not relate to this case.

As per our investigation, it was unfortunately determined that the card was not cloned. The bank has supp**** proof that the Original Card and Pin were used for all the disputed transactions.

Our office would like to refer you to First National Bank’s Conditions of Use: 9. Authority to debit your Credit Card Account and/or Credit facility 9.1 Each time you use the Credit Card or the Credit Card details to access your Credit Card Account and/or your Credit facility to transact, we will debit your Credit Card Account and/or Credit facility with the amount of the purchase, cash withdrawal or transfer(s). 9.2 All payments we or you have made to a merchant for any transaction are final and irreversible, unless a reversal is allowed by the Visa rules and regulations as published by Visa from time to time. 9.3 A dispute between you and any merchant will not affect our right to debit your Credit Card Account and/or Credit facility and receive payment (if applicable).

Please be advised that writer hereof is sympathetic towards your situation and the ********** crime that was committed againST you.(WHY IS IT ACKNOWLEDGED THAT IT IS A CRIME, IF IT IS ALLEGED THAT NO PROOF OF CLONINIG COULD BE FOUND?)

Unfortunately after a thorough evaluation of all the evidence and taking into account our offices process when dealing with sensitive matters of this nature, we regret to advise you that we can unfortunately not make a finding in your favour.

Kindly note that although the evidence may be regarded not to be conclusive, it surely supports the probabilities and this office makes findings on a balance of probabilities.

Please be advised that should you request the private and confidential material our office used for the investigation, you will have to obtain a s205 Subpoena from court or from an investigating officer at the SAPS, where you have opened up a ******** case. Without a s205 subpoena the Bank will not provide you with their private and confidential information and the intricate workings of the Banks system.

We apologise again that we could not make a finding in your favour. Our office suggests that you obtain legal advice in order to determine any/further recourse regarding this terrible crime committed against you.

Kind regards We feel that we have been bul**** into just accepting what FNB and the Ombudsman have decided, FNB is big with all the resources to dragg any case for years that could cost millions. it is very very unfair that we have to pay back this money with interest