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What Reference Tool Answers All Your Questions About Check Disputes 2010 THE CHECK GUIDE What reference tool answers all your Q. questions about check disputes, forgeries, and banking law? A. Manatt’s Check Guide. Gene Elerding, a partner in Manatt, Phelps & Phillips’ Los Angeles office, has created The Check Guide, describing the rules that apply to check disputes (e.g., forgeries, alterations, counterfeit items, stop payment orders, and many other subjects). The 2010 Check Guide contains helpful forms, sample contract terms, investigation checklists, and dispute resolution procedures that can be used by bank attorneys, operations officers, security staff and risk managers to resolve check disputes. Mr. Elerding’s practice focuses on banking law, with an emphasis in regulatory and operational issues affecting financial institutions and advertisers. He represents a growing number of companies in connection with e-commerce, online banking, check disputes, deposit agreements, information management and payment system issues. He advises clients on a wide variety of legal issues affecting product development, privacy, vendor services, cash management, consumer disclosures and compliance. Prior to joining the firm, Gene was an Assistant Secretary and Assistant General Counsel for First Interstate Bank of California, where he practiced for 13 years. General rules are set out at the beginning of each chapter, footnotes identify or explain each rule, and an index is provided at the end to locate the applicable sections of the Commercial Code. Note: The Check Guide is not intended as legal advice; please consult an attorney. GENE ELERDING 310.312.4158 [email protected] Note to Readers Not Legal Advice. This Guide is not intended to express any legal opinions or to provide legal advice. You should consult an attorney for legal advice. Code Interpretations. You should refer to the actual code provisions that are cited in the text, as I have employed a degree of poetic license in summarizing and describing the law. Since the actual wording may be slightly different, I have added an index at the end to help you find your way. California’s UCC. This Guide is based primarily on California’s version of the Uniform Commercial Code. California’s UCC varies in a few respects from the “Official Text” of the uniform law employed by other states. For example, the words “substantially contributes” are changed to “contributes” in California’s version of Section 3406 (“Failure to Exercise Ordinary Care”). Note also: New York has not adopted the 1990 version of the UCC. Case Code Citations. Readers should bear in mind that pre-1991 cases often refer to sections of the UCC that were relocated with the revised code in the 1990s (e.g., the warranty sections). Unless you keep this in mind, reading older cases can be a confusing experience. Note also that some states use a different UCC numbering system (e.g., in Virginia § 4208 warranties are found at § 4207). Copies of This Guide. With appropriate attribution, please feel free to copy, use, and distribute this Guide as you wish to others. Online, Searchable Copy. You can search this Guide by going to www.manatt.com, clicking on “White Papers,” clicking on “2010 Check Guide,” and using the “Search” button. Regards, Gene Elerding April 2010 -ii- TABLE OF CONTENTS 1. FORGED MAKER CHECKS........................................................................................ 1 A. General Rule.......................................................................................................... 1 B. Payor Bank Defenses ............................................................................................. 2 C. Depositary Bank Defenses................................................................................... 13 2. FORGED PAYEE CHECKS........................................................................................ 14 A. General Rule........................................................................................................ 14 B. Depositary Bank Defenses................................................................................... 17 3. ALTERATIONS ............................................................................................................ 29 A. General Rule........................................................................................................ 29 B. Material v. Immaterial Alterations....................................................................... 29 C. Right to Enforce Altered Check........................................................................... 31 D. Payor Bank Defenses ........................................................................................... 31 E. Depositary and Collecting Bank Liability ........................................................... 36 4. FORGED/ALTERED CHECK CLAIM PROCEDURE ........................................... 38 A. Obtain an Affidavit of Forgery/Alteration........................................................... 38 B. Obtain Copies of the Forged/Altered Checks ...................................................... 42 C. Determine the Circumstances of the Loss ........................................................... 42 D. File a Suspicious Activity Report and Report Suspected Elder Financial Abuse. .................................................................................................................. 43 E. Provisional Crediting, Suspension and/or Closure; Tolling Agreements ............ 43 F. Taking Action...................................................................................................... 47 G. Adverse Claims and Disputes .............................................................................. 60 5. TIMING ISSUES........................................................................................................... 68 A. Midnight Deadline ............................................................................................... 68 B. Stop Payment Orders, Knowledge, Setoff and Legal Process............................. 76 C. Chargeback .......................................................................................................... 77 D. Federal Reserve Challenge Procedure ................................................................. 78 6. CHECK KITES.............................................................................................................. 80 A. Definition ............................................................................................................. 80 B. Elements............................................................................................................... 80 C. General Rule........................................................................................................ 80 D. Discovering the Kite ............................................................................................ 81 -i- TABLE OF CONTENTS (continued) E. Interrupting the Kite............................................................................................. 81 F. The Aftermath of a Kite....................................................................................... 82 7. STOP PAYMENT ORDERS ........................................................................................ 84 A. General Rule........................................................................................................ 84 B. Proof of Damage.................................................................................................. 84 C. Subrogation.......................................................................................................... 84 D. Holder in Due Course .......................................................................................... 85 8. MISENCODED CHECKS............................................................................................ 89 A. General Rule........................................................................................................ 89 B. Damages............................................................................................................... 89 C. Defenses............................................................................................................... 89 9. DEATH/INCOMPETENCE OF CUSTOMER .......................................................... 90 A. Death.................................................................................................................... 90 B. Incompetence ....................................................................................................... 90 C. Knowledge of Death/Incompetence..................................................................... 90 D. Bankruptcy........................................................................................................... 90 10. SUBSTITUTE CHECKS.............................................................................................. 92 A. General Rule........................................................................................................ 92 B. Bank Warranties................................................................................................... 92 C. Bank Indemnity.................................................................................................... 93 D. Consumer Rights.................................................................................................. 93 11. “FULL PAYMENT” CHECKS.................................................................................... 96 A. General Rule.......................................................................................................
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