Bank Fraud: Both Sending and Receiving Banks Held Liable for Breach of the Duty of Vigilance (TJ Clermont-Ferrand, First Civil Chamber, 3 April 2026, No. RG 23/03531)

Court of First Instance of Clermont-Ferrand, First Civil Chamber, 3 April 2026, No. RG 23/03531

What happened? The facts behind the dispute

A sophisticated fake bank adviser scam

In January and February 2022, a couple living within the jurisdiction of the Court of First Instance of Clermont-Ferrand were approached by a person presenting himself as a wealth management adviser at a German banking institution, the company NURI GMBG. Buoyed by this appearance of legitimacy, the individual convinced the spouses to invest a significant share of their savings.

On his advice, the couple made several successive transfers from their accounts held at the Caisse d’Épargne et de Prévoyance d’Auvergne et du Limousin (hereinafter CEP d’Auvergne) and at the Banque Cantonale de Genève. Between 25 January and 14 February 2022, in under a month, the spouses thus transferred a total of €85,000. Of that sum, €60,000 was sent to accounts opened with Banca Monte dei Paschi di Siena (hereinafter BMPS), a bank whose registered office is in Siena, Italy.

This is a classic but formidably effective scam: by posing as a trusted professional attached to an existing institution, the fraudster exploits his victims’ natural credulity and overcomes their wariness. This type of fraud, sometimes referred to as “fake adviser fraud” (fraude au faux conseiller), relies on well-tried psychological mechanisms and affects victims of all profiles.

Realising they had been deceived, the spouses filed a criminal complaint for fraud on 29 March 2022. An investigation was opened before the national jurisdiction responsible for combating organised crime, which shows the serious and structured nature of the fraud.

The court proceedings: two banks sued, one objection raised

As early as 29 April 2022, one month after the complaint was filed, the spouses’ counsel served formal notice on CEP d’Auvergne to return the full €85,000 invested, and on BMPS to return the €60,000 it had received. Neither institution acted on these demands.

It was in this context that the victims had the two banks summoned before the Court of First Instance of Clermont-Ferrand by a notarised deed (acte authentique) of 4 September 2023, relying mainly on breaches of their duties of vigilance arising under the Monetary and Financial Code (code monétaire et financier), in particular under the anti-money laundering and counter-terrorist financing regime (AML/CFT).

The proceedings took a notable procedural turn: by interlocutory submissions of 30 April 2024, BMPS challenged the jurisdiction of the French court and raised a plea of lack of jurisdiction in favour of the Italian courts. This attempt failed: by an order of 15 November 2025, the pre-trial judge (juge de la mise en état) rejected the plea, paving the way for a judgment on the merits delivered on 3 April 2026.

Which law applies when the receiving bank is foreign?

The presence of an Italian bank in this dispute raised a preliminary question of capital importance: which national law governs BMPS’s liability? The Italian bank argued that Italian law should apply, which would have made the French anti-money laundering provisions unenforceable against it. The court firmly rejects this argument.

Applying Article 4(1) of the Rome II Regulation, the court holds that where the alleged loss is financial in nature, the applicable law is that of the country of the victim’s domicile, since the damage occurs directly in a bank account opened in that country. In this case, the damage suffered by the spouses materialised as soon as their French bank executed the transfer orders: it was in France, on their accounts held at CEP d’Auvergne, that they parted with their funds for the benefit of the perpetrators of the scam.

It follows that French law applies to the whole dispute, including BMPS’s liability. This solution has considerable practical significance for victims of cross-border fraud: it allows them to rely before the French courts on the obligations imposed by the Monetary and Financial Code on all banks receiving funds of French origin, whatever their nationality.

What are banks’ duties of vigilance in the face of fraud?

The heart of the debate concerns the obligations that the law imposes on banking institutions to detect and prevent fraudulent transactions. These obligations are of two kinds: some arise from the legislation on anti-money laundering and counter-terrorist financing (AML/CFT), while others derive from the banking contract itself or from the general law of civil liability.

The court recalls that, beyond this specific statutory regime, the general contractual duty of vigilance requires every bank to detect obvious anomalies on its customers’ accounts and to act to protect their funds. A breach of these obligations engages the bank’s civil liability where the loss suffered is directly linked to that failure.

The sending bank’s failings: CEP d’Auvergne et du Limousin

The Caisse d’Épargne d’Auvergne et du Limousin was bound to the spouses by a banking contract. As the account-holding bank, it had precise knowledge of how its customers’ account normally operated. It was therefore, in the court’s words, “in a position to detect the anomalies affecting the disputed transfers”.

The court notes a body of converging indications that should have alerted the institution:

The court concludes that “the disputed transfers displayed apparent anomalies, relating to their high amount, their repetition over a short period and their destination to foreign accounts unknown to the customers.” By failing to carry out checks or to alert its customers, the bank breached its contractual duty of vigilance and thereby incurred liability.

CEP d’Auvergne argued in particular that the transfers had been authorised by the customers themselves, and that, as a payment service provider, its only obligation was to execute the orders received. The argument is swept aside: the status of payment service provider does not relieve the bank of its duty of vigilance where the transactions display obvious anomalies.

The receiving bank’s failings: Banca Monte dei Paschi di Siena

BMPS’s situation is legally different: it was not bound by any contractual obligation towards the victims. But the court recalls that it is a principle that “the receipt and making available of fraudulent funds by a bank, without any checks, constitutes a wrongful breach engaging civil liability” on the basis of the general law of liability in tort, now codified in Article 1240 of the Civil Code (code civil).

The court characterises BMPS’s failings through three distinct and complementary elements. First, the failure to verify the origin of the funds: no enhanced check was put in place to detect the fraud, even though the amounts received and the speed of the transfers should have aroused suspicion. Second, the breach of the duty of vigilance: the bank received and made the funds available without flagging any anomaly, despite the unusual repetition and amount of the transfers. Third, the contribution to the loss: by allowing the fraudulent funds to actually be made available to the fraudsters, BMPS allowed the victims’ material and non-material loss to “materialise fully.”

The court stresses the differentiated causal role of the two institutions: “the fault of the issuing bank (CEP) allowed the initial occurrence of the damage and the fault of the receiving bank (BMPS) allowed its final and irreversible occurrence.” It was BMPS’s making the funds available that completed the fraud and made the loss impossible to undo.

Can the victims’ own fault exonerate the banks?

The banks, and CEP d’Auvergne in particular, sought to escape liability by invoking the victims’ own fault. They argued that the spouses had made high-value transfers to an unknown third party, on the strength of the statements alone of a person who was not identified with certainty, without carrying out any verification of the reality of the proposed investment.

The court partially accepts this argument. It acknowledges that the spouses “made several high-value transfers, acted on the basis of exchanges with a person who was not identified with certainty and did not carry out sufficient checks on the reality of the proposed investment.” These elements amount to “a negligent imprudence, constituting a breach of their duty of prudence in the management of their financial interests.”

However, the court sets a clear limit on the exonerating effect of this fault. It recalls a firmly established principle: the victim’s fault can fully exonerate the professional only if it is unforeseeable and irresistible. That is not the case here, since the banks were themselves subject to an enhanced duty of vigilance and the transactions displayed apparent anomalies that they were in a position to detect.

The spouses’ fault therefore “contributed to the occurrence of the damage, without being its exclusive cause.” It justifies a reduction in compensation but not a total exoneration of the banks. This is a balanced solution that faithfully reflects the state of the law: a professional subject to an enhanced duty of vigilance cannot rely on its customer’s naivety to escape its own failings.

What compensation for victims of bank fraud?

The court carries out a rigorous and methodical assessment of the losses suffered by the couple, carefully distinguishing material loss from non-material loss and loss of enjoyment.

As to material loss, the court holds that the loss corresponds to the entirety of the funds fraudulently transferred, that is €85,000. The causal link between the banks’ failings and this damage is directly established: CEP d’Auvergne failed to check the unusual transfers and BMPS made the funds available without verification, thereby enabling the scam to be carried through in full. This loss is certain, direct and quantifiable. In accordance with the principle of full compensation, it is compensated at 70% (taking into account the victims’ share of liability), that is €59,500.

As to non-material loss and loss of enjoyment, the court recognises that the loss of the funds caused the victims “the anguish and stress generated by the scam, the inability to freely dispose of their assets and the prolonged legal proceedings necessary to obtain redress.” This mental suffering justifies separate compensation, assessed at €6,000, reduced to €4,200 after applying the 70% coefficient attributable to shared fault.

The two banks are ordered in solidum to pay all of these sums, which means that the victims may claim the whole amount from either bank, leaving the one that pays to bring a contribution claim against the other.

How is the burden split between the two banks held liable?

The in solidum order against the two banks does not mean that each bears half of the debt. As between themselves, the court apportions the debt according to the respective seriousness of their faults, in accordance with Articles 1240 and 1317 of the Civil Code.

The court distinguishes precisely the roles played by each bank in bringing about the damage. CEP d’Auvergne, as the account-holding bank, was in a direct contractual relationship with the victims and had precise knowledge of how their accounts normally operated. Its failing consists of “a lack of vigilance upstream, when the funds were issued.” BMPS, the beneficiary’s bank, for its part enabled “the final and irreversible occurrence” of the damage by making the funds available to the fraudsters without carrying out the necessary checks. Its intervention was “decisive in the completion of the fraud.”

BMPS’s preponderant liability is explained by simple but convincing reasoning: without the effective making available of the funds by the receiving bank, the fraud could not have been completed. It is BMPS that made the damage final and irreversible. CEP d’Auvergne’s claim for an indemnity against BMPS is, however, rejected: the court considers that the contribution claim mechanism is sufficient to rebalance the burden between the two institutions.

What practical lessons can be drawn from this decision?

This decision of the Court of First Instance of Clermont-Ferrand is rich in lessons at several levels: for victims of bank fraud who wish to take legal action, for banking institutions that must understand the extent of their obligations, and more generally for anyone wishing to protect their savings.

For victims, the decision confirms that it is possible to take action against both banks involved in a fraudulent transfer, even where one of them is foreign. Bringing proceedings before the French courts and the application of French law are possible provided the debited account is held in France. It is essential to act quickly: prior formal notice is a recommended step before any summons, and preserving all evidence (exchanges with the supposed adviser, transfer confirmations, account statements) is indispensable to establish the banks’ failings.

The decision also recalls that the victim’s fault, although it reduces compensation, is not exonerating where the banks were subject to an enhanced duty of vigilance. In other words, even if you acted with a degree of naivety, you retain the right to seek redress from your bank for its own failing.

For banking institutions, the lesson is clear: the mere fact that the transfers were authorised by the customer is not enough to discharge the bank of its liability. Where transactions display apparent anomalies (unusual amounts, closely spaced frequency, unknown foreign destination), the bank is under an obligation to ask questions, request supporting documents and, if necessary, block the transactions and alert its customers. This obligation applies to the sending bank as well as to the receiving bank.

Finally, this case perfectly illustrates the risks of fake financial adviser fraud. Before investing a significant sum on a third party’s advice, it is imperative to verify their identity and authorisation with the competent authorities (AMF, ACPR), to consult the official registers of authorised professionals, and never to make large transfers to accounts whose beneficiary you do not know precisely.

A Decision That Strengthens Bank Liability Across Fraud Chains

The judgment of 3 April 2026 of the Court of First Instance of Clermont-Ferrand forms part of a consistent line of case law tending to reinforce the duties of vigilance of banking institutions in the face of financial scams. It makes several notable contributions to this growing body of litigation.

First, it confirms the application of French law to foreign receiving banks that have received fraudulent funds from French accounts, relying on the Rome II Regulation. This solution is particularly important in a context where frauds are increasingly organised on a European or international scale, with fraudsters deliberately using accounts in other countries to complicate victims’ recourse.

Second, it establishes the cumulative liability of the sending bank and the receiving bank, each having contributed to the occurrence of the damage at a different stage: one by allowing suspect funds to be issued, the other by allowing their definitive appropriation by the fraudsters. This two-pronged approach to the fraud chain is an important step forward for the protection of victims.

Finally, it clearly recalls that the victim’s fault, however real, cannot be the exclusive cause of damage that professionals bound by enhanced duties of vigilance could have prevented. If you have been the victim of such a fraud and your bank took no precautions in the face of manifestly abnormal transactions, you have real and concrete avenues of redress. Do not hesitate to seek the assistance of a lawyer specialising in banking law to assess your chances of success and defend your interests effectively.

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