Background
Helide Aparecida Fullan and other plaintiffs challenged loans and transfers exceeding R$180,000 that were made during a “fake customer-service center” scam. A fraudster telephoned Fullan while posing as a representative of the financial institution, and she followed the caller’s instructions. The plaintiffs sought declarations that the disputed obligations were unenforceable, repayment of the transferred amounts, and moral damages.
The trial court rejected the claims, finding that the victim’s conduct and the acts of a third party exclusively caused the loss and broke the causal connection necessary to hold the financial institution liable. The São Paulo Court of Justice affirmed. It found no evidence of a data leak or security-system defect, noted that the transactions were performed from a registered mobile device using a password and personal token, and concluded that the amounts were consistent with the accounts’ history of substantial transactions. The plaintiffs then filed a special appeal invoking Article 14 of the Consumer Defense Code, STJ Precedent Statement 479, and alleged conflicts with other decisions.
The Court’s Holding
The Fourth Panel unanimously declined to hear the special appeal. It did not decide as a matter of substantive law that financial institutions are never liable for fake-call fraud. Instead, it held that overturning the state court’s decision would require reassessing the evidence concerning how the scam occurred, the authentication methods used, whether the transactions fit the customers’ financial profile, and whether the victim’s and third party’s conduct broke the causal chain. That factual reexamination is barred in a special appeal under STJ Precedent Statement 7.
The court also held that an alleged violation of a precedent statement cannot itself support a special appeal under Article 105(III)(a) of the Constitution, as reflected in STJ Precedent Statement 518. The appeal’s asserted decisional conflict under Article 105(III)(c) was independently inadequate because the appellants did not provide the required analytical comparison demonstrating factual similarity between the cited cases. The court increased the attorney-fee award against the appellants by 10% of the amount previously fixed, subject to statutory limits and any applicable legal-aid protection.
Key Takeaways
- A special appeal cannot be based solely on an alleged violation of an STJ precedent statement.
- STJ will not revisit bank-fraud liability when doing so requires reweighing evidence already assessed by the lower courts.
- A party alleging conflicting case law must make a specific analytical comparison showing factual similarity; merely citing or reproducing other decisions is insufficient.
Why It Matters
The decision underscores that the outcome of fake-customer-service-center cases may turn on the factual findings made below, including transaction authentication, account history, possible data leakage, and the customer’s role in carrying out the transfers. Those findings generally cannot be relitigated through a special appeal.
For appellate practitioners, the ruling also highlights two threshold requirements: frame alleged error as a violation of federal law rather than of a precedent statement itself, and substantiate any claimed jurisprudential conflict with a detailed comparison of materially similar facts.