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Download This Article The Fidelity Law Journal published by The Fidelity Law Association Volume XIII, October 2007 Cite as XIII Fid. L.J. ___ (2007) WWW.FIDELITYLAW.ORG The Fidelity Law Journal is published annually. Additional copies may be purchased by writing to: The Fidelity Law Association, c/o Wolff & Samson PC, One Boland Drive, West Orange, New Jersey 07052. The opinions and views expressed in the articles in this Journal are solely of the authors and do not necessarily reflect the views of the Fidelity Law Association or its members, nor of the authors’ firms or companies. Publication should not be deemed an endorsement by the Fidelity Law Association or its members, or the authors’ firms or companies, of any views or positions contained herein. The articles herein are for general informational purposes only. None of the information in the articles constitutes legal advice, nor is it intended to create any attorney-client relationship between the reader and any of the authors. The reader should not act or rely upon the information in this Journal concerning the meaning, interpretation, or effect of any particular contractual language or the resolution of any particular demand, claim, or suit without seeking the advice of your own attorney. The information in this Journal does not amend, or otherwise affect, the terms, conditions or coverages of any insurance policy or bond issued by any of the authors’ companies or any other insurance company. The information in this Journal is not a representation that coverage does or does not exist for any particular claim or loss under any such policy or bond. Coverage depends upon the facts and circumstances involved in the claim or loss, all applicable policy or bond provisions, and any applicable law. Copyright © 2007 Fidelity Law Association. All rights reserved. Printed in the USA. For additional information concerning the Fidelity Law Association or the Journal, please visit our website at http://www.fidelitylaw.org. Information which is copyrighted by and proprietary to Insurance Services Office, Inc. (“ISO Material”) may be included in this publication. Use of the ISO Material is limited to ISO Participating Insurers and their Authorized Representatives. Use by ISO Participating Insurers is limited to use in those jurisdictions for which the insurer has an appropriate participation with ISO. Use of the ISO Material by Authorized Representatives is limited to use solely on behalf of one or more ISO Participating Insurers. WWW.FIDELITYLAW.ORG CHECK EXPOSURES IN TODAY’S ELECTRONIC BANKING AGE: IS THE FINANCIAL INSTITUTION BOND KEEPING STRIDE WITH A LOOMING PAPERLESS SOCIETY? Melissa L. Gardner Jason Glasgow I. INTRODUCTION Sweeping advancements in computer and internet technology are radically altering every aspect of life, from personal banking to the way multinational corporations operate, and nowhere more so than in the financial services sector. Clients expect a greater breadth of services from their banks and financial institutions,1 demanding access to information twenty-four hours a day, seven days a week, from around the world, through a variety of secure channels at a relatively low cost. Given today’s intensely competitive financial services marketplace, meeting and exceeding clients’ expectations is understandably the prime objective of financial institutions. Thus, financial institutions are offering a wider range of increasingly sophisticated and complex products and services. One such development that has completely transformed the banking industry is the method by which our country now collects and 1 Section 4-105 of the Uniform Commercial Code defines a “bank” as a person engaged in the business of banking, including a savings bank, savings and loan association, credit union, or trust company. This article utilizes the terms “bank” and “financial institution” interchangeably to refer to all such entities. Melissa Gardner is an associate in the Dallas, Texas office of Strasburger & Price, LLP. Jason W. Glasgow is Claim Counsel with Travelers Bond and Financial Products in Hartford, Connecticut. 1 WWW.FIDELITYLAW.ORG 2 Fidelity Law Association Journal, Vol. XIII, October 2007 processes checks. The Check Clearing for the 21st Century Act,2 a federal law that went into effect on October 28, 2004, ushered in a new era of check imaging and check processing by revising the rules governing the exchange of checks between financial institutions. While the intent behind the enactment of Check 21 was to reduce check processing costs, to clear checks more efficiently, and, most importantly, to discontinue the nation’s dependence on the physical transportation of checks, opinions vary widely regarding the law’s future implications. For instance, although some commentators believed that a decline in check fraud losses due to the significant reduction in the time needed to process checks would emerge as another benefit of Check 21, check fraud has become an increasing problem, due in part to Check 21.3 Although Check 21 went into effect nearly three years ago, the American Bankers Association estimates that check fraud continues to grow at a rate of twenty-five percent annually.4 In fact, with approximately 1.2 million fraudulent checks written every day, check forgery alone cost our nation $20.6 billion last year.5 Thus, while “streamlining” the check processing system, Check 21 has presented a new challenge in fraud detection and prevention.6 With the advent of new technologies, coupled with the passage of Check 21, criminals are creating new check fraud techniques, making check fraud one of the most prevalent obstacles confronting today’s 2 12 U.S.C. §§ 5001-5018 (2007) [hereinafter Check 21]. 3 Karen M. Kroll, Electronic Payments: More Choices, Rewards and Risks, 11 BUSINESS FINANCE, at 26 n.12 (Dec. 2005). 4 Frank Abagnale, Jr., Ways To Prevent Identity Theft, KANSAS CITY STAR, July 1, 2007, at D2. 5 Id.; Samantha Stainburn, Advice from an Old, and Notorious Pro; You Know You’re Good When Leo Plays You, CRAIN’S CHICAGO BUSINESS, Feb. 26, 2007, at 18; see also FEDERAL RESERVE FINANCIAL SERVICES, CHECK FRAUD FEDERAL RESERVE SYSTEM, available at http://www.checkcomposer. com/Downloads/CheckFraud.pdf. 6 BITS FINANCIAL SERVICES ROUNDTABLE, STRATEGIES FOR MITIGATING FRAUD RISKS ASSOCIATED WITH THE CHECK CLEARING IN THE 21ST CENTURY ACT (2004). WWW.FIDELITYLAW.ORG Check Exposures in Today’s Electronic Banking Age 3 financial institutions.7 Three payment methods that are governed by Check 21—desktop published checks, remotely created checks, and remote deposit capture services—have become prime targets for check fraud losses. Fraudulent desktop published checks can be created fairly easily using desktop publishing programs/software and can be submitted and cleared through the banking system virtually undetected. Remotely created checks, created by the payee with the apparent authority of the drawer, do not bear the drawer’s signature; hence, there is absolutely no way to differentiate a valid remotely created check from an unauthorized one, making it nearly impossible to detect fraudulent activity in a timely manner. Lastly, remote deposit capture services, a fairly recent innovation, allow businesses to scan and deposit checks from their business locations to their financial institutions. Here, the potential for fraud is evident, in that the original checks, which are retained by the businesses, can easily end up in the wrong hands. When a financial institution suffers the above types of check fraud losses, it naturally analyzes whether other financial institutions involved in the checking transaction or customers might be responsible for the loss; if not, it will turn to its insurers. Financial institutions that seek relief for such losses through their insurers typically file claims under Insuring Agreement (D) of the Standard Form No. 24 Financial Institutions Bond.8 Given that the language of Insuring Agreement (D) was written at a time when society was wholly dependent on paper, before the advent of computers or even fax machines and when no one ever dreamed of these types of technological advancements, analyzing whether coverage exists for losses resulting from desktop published checks, remotely created checks, or remote deposit capture services is a 7 Kurt Summers, Comment, Remotely-Created Checks: Legislative Reluctance, Reciprocity Requirements, and the Federal Rule that Changes Everything, 38 TEX. TECH L. REV. 1179, 1183 (2006). 8 FINANCIAL INSTITUTION BOND, Standard Form No. 24 (revised Jan. 1986), reprinted in STANDARD FORMS OF THE SURETY ASSOCIATION OF AMERICA (SURETY ASS’N OF AMERICA) [hereinafter 1986 Bond]; FINANCIAL INSTITUTION BOND, Standard Form No. 24 (revised April 2004), reprinted in STANDARD FORMS OF THE SURETY ASS’N OF AMERICA [hereinafter 2004 Bond]. The 1986 Bond and the 2004 Bond will be referred to collectively herein as Financial Institution Bond. WWW.FIDELITYLAW.ORG 4 Fidelity Law Association Journal, Vol. XIII, October 2007 bit like trying to fit a square peg into a round hole.9 But, one thing is clear—the intent was never to cover such losses. This article provides an in-depth analysis of the new forms of check payment and examines how liability for fraudulent check losses is allocated amongst the parties involved in the checking transactions under the Uniform Commercial Code.10 In addition, this article discusses whether coverage for such losses is available to the financial institutions under Insuring Agreement (D) of the Financial Institution Bond.11 Section II provides a brief discussion of the development of the check payments system in the United States, covering a historical overview of the check, from conception to the implementation of electronic check processing. In order to understand how liability for check fraud losses is allocated, section III discusses the mechanics of articles 3 and 4 of the UCC and certain applicable federal regulations. In addition, this section explains how and why the Financial Institution Bond fits into the picture. Sections IV, V, and VI offer a detailed overview of desktop published checks, remotely created checks, and remote deposit capture services, respectively.
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