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Regulations – Regulation CC 2013-2014

Copyright © 2013 by ECCHO (Certain contributed content subject to third party copyrights) 1

National Check Payments Certification

Regulations – Regulation CC

Copyright© 2013 by the Electronic Check Clearing House Organization

NCP 2014 ExamECCHO Training Series

Session 3

March 5, 20142:00 pm ET (1:00 pm CT; 11:00 am PT)

All sessions 90‐min.

NOTICES

This training course may provide an introduction to or summary of various aspects of checkpayments and the legal and rules framework for check image exchange. Responsibility forcompliance with image exchange rules, and/or the legal, operational and regulatoryrequirements applicable to check image exchange, remains at all times with the financialinstitution participating in check image exchange and/or the individual or company using acheck image exchange service.

This presentation and the information contained herein is not intended as legal or complianceadvice or recommendation to any person or company. This document could include technicalinaccuracies or typographical errors and individual users are responsible for verifying anyinformation found in this presentation and related “live” webinar or webinar playback.

Financial institutions should consult with their legal counsel regarding legal and operationalrequirements applicable to any check image exchange program they may offer or in which theyparticipate.

These program training materials may not be reproduced or published, in whole or in part, without the express permission of ECCHO.

Copyright© 2013 by the Electronic Check Clearing House Organization(Certain contributed content subject to third party copyrights)

2National Check Payments Certification



Session Overview

• Review–Warranty and Indemnity in Payments

• Regulation CC–Availability and Disclosure Requirements–Collection and Return Requirements–Check 21 and Substitute Check

• Scenarios


Warranty and Indemnity in Payments

• Inter‐bank exchange of checks subject to state/federal law• Rules and agreements important in assigning liability

– Address exchange issues in uniform mannerRules may be applied to exchanges across multiple financial institutions and exchange networks

• Check Image Rules ‐ Establish legal rights and obligations of financial institutions in exchanging check images– Address operational and technical requirements– Reduce risk to exchange participants

• Financial institutions exchanging check images without rules /agreements– Potentially expose both sending and receiving banks to increased payment /operational risks




Warranty and Indemnity in Payments

• Role of Uniform Commercial Code (UCC)– Model state laws as adopted by each stateExample: Transfer and presentment warranties

• Role of Regulation CC – Federal law implementing regulations for:– Expedited Funds Availability Act (“EFAA”)– Check Clearing for the 21st Century Act (“Check 21 Act”)Example: Substitute check warranties

• Clearinghouse Rules (ECCHO Rules)– Agreement covering clearinghouse members for images exchanged under uniform rulesExample: “Chain of warranties” and forged and counterfeit check warranty

• Federal Reserve Operating Circulars– Rules governing all exchanges to /from FRBExample: Defines liability of the FRB vs. presenting or returning bank


Indemnification Example

• Bank A warrants it will not ask Paying Bank to pay an item it has already paid(“no double debit” warranty)

• Bank A sends duplicate image resulting in breach of warranty

• Paying Bank is indemnified from loss

– Can make a claim back to Bank A that breached warranty

Bank A

Paying Bank

Paying Bank’s

Customer

StatementIMAGE

DUPLICATE IMAGE

Breach of Warranty Claim




Overview of Check Regulations

• Uniform Commercial Code–Article 3: Negotiable Instruments–Article 4: Bank Deposits and Collections

• Regulation CC–Availability of Funds and Collection of Checks

• Regulation J–Collection of Checks and Other Items by Federal Reserve Banks and Funds Transfers through Fedwire


Regulation CC



Purpose of Reg CC

• Issued by the Board of Governors of the Federal Reserve System–Subpart B joint jurisdiction with CFPB

• Implements following Federal legislation:–Expedited Funds Availability Act (EFA Act)–Check Clearing for the 21st Century Act (Check 21 Act)


Reg CC Overview

• Divided Into Four Subparts–General / Definitions – Subpart A–Availability of Funds and Disclosure of Funds Availability Policy – Subpart B

–Collection of Checks – Subpart C–Substitute Checks – Subpart D–Appendices A – FCommentary




Definitions

• Availability: Time period from the day of deposit until the funds are available to the account holder for withdrawal or other use–May include funds from an overdraft/line of credit product as well as funds classified as available balance such as from cleared and existing deposits

• Available for Withdrawal: Funds deposited available for all uses generally permitted to customer under the bank’s account agreement or policies


Definitions

• Bank includes:–Insured bank–Mutual savings bank and Savings bank–Insured credit union –MemberAs defined in § 2 of FHLB Act

–Savings association–Agency or a branch of a foreign bank as defined in section l(b) of the International Banking Act




Definitions

• Banking day–Business day on which office of bank is open to public for substantially all banking functions

• Business day–Calendar day other than a Saturday or a Sunday, or Federal Reserve legal holidays


Definitions

• Check– Negotiable demand draft:Drawn on or payable through or at office of bankDrawn on Federal Reserve Bank or Federal Home Loan BankDrawn on the Treasury of the United States

– Demand draft drawn on a state government or unit of general local government not payable through or at a bank

– United States Postal Service money order; or – Traveler's check drawn on or payable through or at a bank– Includes original check and substitute check– Note: Does not include:Noncash itemItem not payable in US funds




Definitions

• Indorsement (Reg CC)– Can be physical or electronic– Apply identification of depositary bankIn a clear and precise mannerRequires all other parties to stay clear of that areaEssential for expeditious returns processing

– Apply identification of subsequent collecting bank(s) indorsements– Location of payee indorsement– Specification of substitute check indorsements

• BOFD Indorsement must include:– ABA routing number offset by inward pointing arrows at each end– Bank’s name and location– Indorsement date

• Subsequent collecting bank(s) indorsements– Must include ABA routing number without inward pointing arrows– May include trace/sequence number


Physical Indorsements

ENDORSE H

ERE:

X

DO NOT SIG

N / W

RITE / ST

AMP BELO

W THIS LIN

EFO

R FIN

ANCIAL IN

STITUTIO

N USA

GE O

NLY

>031000011<

01/02/20027815830233

FOR

DEPO

SIT ON

LYFIR

ST UN

ION

NATIO

NAL B

ANK

ACC

OU

NT 1

23

45

67

89

01

23

NO

RTH

POLE, IN

C.

BOFD

Payee Indorsement

Su

bse

qu

ent

colle

ctin

g b

ank

Subsequent collecting bank




Definitions

• Local Check–Check payable by or at a local paying bank or–Check payable by a nonbank payor and payable through a local paying bankAll checks considered “Local” today based on Fed office consolidationsAtlanta remaining FRB check processing location


Federal Reserve Districts

• Restructuring of Federal Reserve Banks’ check processing operations resulted in all items now considered “Local” items




Definitions

• Noncash item: Item that would otherwise be a check, except that—–Passbook, certificate, or other document is attached;

–Accompanied by special instructions, such as request for special advice of payment or dishonor;

–Consists of more than a single thickness of paper, except a check that qualifies for handling by automated check processing equipment; or

–Not preprinted or post‐encoded in magnetic ink with the routing number of the paying bank


Definitions

• Paying Bank– Bank by which a check is payable, and– To which it is sent for payment or collection; – Federal Reserve Bank or Federal Home Loan Bank by which a check is payable;

– Bank through which a check is payable, if the check is not payable by a bank; or

– State or unit of general local government on which a check is drawn and to which it is sent for payment or collection

• Returning Bank– Bank (other than paying or depositary bank) handling a returned check or notice in lieu of returnAlso a collecting bank for purposes of UCC 4–202(b)




Definitions

• Remotely Created Check–Check not created by the paying bank–Does not bear a signature applied, or purported to be applied, by the person on whose account the check is drawn


Reg CC ‐ Availability of Funds

• Next‐Day Availability–Depositary bank shall make funds available for withdrawal no later than the business day after the banking day on which depositedCheck drawn on the Treasury of the United StatesUS Postal Service money orderCheck drawn on a Federal Reserve Bank or Federal Home Loan BankCheck drawn by a state or a unit of general local governmentCashier's, certified, or teller's check




Availability of Funds

• Next‐Day Availability–All other checks deposited at same depositary bank and lesser of:(A) $200 (Dodd‐Frank Act July 21, 2011), or(B) Aggregate amount deposited on one banking day to all accounts by check

• Two‐Day Availability–Depositary bank shall make funds available for withdrawal no later than second business day after the banking day on which checks deposited in person


Availability of Funds

• Extension of Schedule–Deposits at nonproprietary ATMsDepositary bank shall make funds available for withdrawal no later than fifth business day after the banking day on which checks deposited




Reg CC ‐ General Disclosure

• Form of disclosures–Be clear and conspicuous in writing–Be in a form that the customer may keepOther than those posted at locations where employees accept consumer deposits and ATMs and the notice on preprinted deposit slips

–Grouped together and not contain any information not related to disclosures required by regulation


Reg CC ‐ Paying Bank Responsibility

• Return of checks–Paying Bank determines not to pay a check, return the check in an expeditious manner

–Two‐day testReturns check such that the check would normally be received by the depositary bank not later than 4:00 p.m. (local time of the depositary bank)

o Second business day following the banking day on which the check was presented to the paying bank




Thursday

Returns Received

Friday

Reg CC Notifications

>$2500

Balances Reduced

Post

Returns Posted

Post

Monday

Checks Deposited

Tuesday

Checks Presented

Wednesday

Return Decisions

Return CandidatesIdentified

Returns

Post

Returns Initiated

Presenting Bank Paying Bank Paying Bank

Paying Bank

Presenting BankPresenting Bank

Monday

Reverse Customer Credit & Mail

Checks to Collections

Tuesday WednesdayDepositor

Checks Posted

Post

Presenting Bank

FundsAvailability

under Reg CC

Returns Backto Depositor

Customer Notice

If substitute check, include Consumer Awareness notice

Collections Receives

Notification of Debit

Depositor Depositor

Collections Receives Returns;

Customer Is Notified

Local Paper Exchange

Return Item Risk



• Unidentifiable Depositary Bank–Paying Bank unable to identify depositary bankMay send returned check to any bank that handled check for forward collection

–Expeditious return requirements do not apply to Paying Bank's return of a check under this paragraph

• Identification of Returned Check–Clearly indicate on the front of check or in return image file that it is a return; and

–Reason for return





• Notice in lieu of return–Check unavailable for return, Paying Bank may:Send copy of front and back of returned checkWritten notice of nonpayment containing the information

oCopy or notice must clearly state it constitutes notice in lieu of return

–Considered a returned check subject to the expeditious return requirements

• Reliance on routing number–May return a check based on any routing number designating the depositary bank


Reg CC ‐ Returning Bank Responsibility

• Same requirements for expeditious return• Same requirements / process for unidentifiable depositary bank

• May return to:–Any collecting bank that handled check for forward collection if returning bank not collecting bank for returned check; or

–To a prior collecting bank, if the returning bank was a collecting bank with respect to returned check




Reg CC ‐ Depositary Bank Responsibility

• Acceptance of returned checks and written notices of nonpayment–At location which presentment of checks for forward collection is requested by depositary bank

–At branch, head office, or other location consistent with name and address of depositary bank indorsement on the check

–Depositary bank may require returned checks be separated from forward collection checks being presented



• Payment–Pay returning or paying bank for amount of check prior to close of business on the banking day on which check was received

–Debit settlement account of depositary bank by:CashWire transferAny other form of payment acceptable to returning or paying bank

–Payments are final when made





• Misrouted returned checks –Receives returned check or written notice of nonpayment in error“Expeditiously” send the returned check or notice to:

o Depositary bank directlyo Returning bank agreeing to handle returned checko Bank from which it was received

• Charges–A depositary bank may not impose a charge for accepting and paying checks being returned to it


Reg CC ‐ Notice of Nonpayment

• Paying bank determines not to pay a check $2,500 or more–Provide notice of nonpayment to depositary bank by 4:00 p.m. (local time) on second business day following the banking day on which check was presented

–Notice may be provided by any reasonable meansReturned check can be the notice




Reg CC ‐Warranties

• Warranties ‐ Returns–Each paying bank or returning bank warrants:Returned within UCC midnight deadlineAuthorized to return checkCheck not materially alteredFor notice in lieu of return, original check has not and will not be returned

• Warranty ‐ Notice of nonpayment–Paying bank warrantsCheck is returned or will be returned within the UCCmidnight deadline Authorized to send the notice; andCheck has not been materially altered


Reg CC ‐Warranties

• Warranty of settlement amount, encoding, and offset –Each bank warrantsTotal amount of checks presented is equal to total amount of settlement demanded Accompanying information accurately indicates total amount of settlement demandedInformation encoded after issue in magnetic ink is correct

o Includes any information placed in the MICR line of substitute check

–Banks that:Settle amounts exceeding total amount of checks, the settling bank may offset excess settlement amount against subsequent settlements




Remotely Created Check Warranty

• Reg CC Section 229.34–Bank that transfers or presents a remotely created check warrants that the person on whose account the check is drawn:Authorized issuance of the check;In amount stated on check; andTo payee stated on check

–Warranties given only by banks and only to subsequent banks


Reg CC ‐ Other Provisions

• Damages – Shall not exceed amount of item plus interest compensation and expenses

• Tender of defense–May give prior bank in collection or return chain written notice of litigation

• Notice of claim–Must be made within 30 days after claimant has reason to know of breach and identity of warranting bank

–Warranting bank discharged to the extent of any loss caused by the delay in giving notice of the claim




Reg CC ‐ Indorsements

• Indorsement–Bank (other than a paying bank) that handles a check during forward collection or a returned check shall indorse the check

• Liability of bank handling check–Is liable to any bank that subsequently handles check to the extent that subsequent bank does not receive payment for the checkParagraph applies whether or not a bank has placed its indorsement on the check


Reg CC ‐ Indorsements

• Indorsement–After check indorsed by bank, only bank may acquire the rights of a holder—(1) Until the check has been returned to person initiating collection(2) Until the check has been indorsed by the bank to a person who is not a bank

• Depositary Bank Indorsement–May arrange with another bank to apply other bank's indorsement as depositary bank indorsementUsed in a centralized return environment




Reg CC ‐ Same‐Day Settlement

• Check is considered presented, and a paying bank must settle for or return the check – If presenting bank delivers the check under delivery requirements established by the paying bank and demands payment –At a location designated by the paying bank for receipt of checks

–By 8 a.m. on a business day (local time)

• Paying bank may require that checks presented for settlement be separated from other forward‐collection checks or returned checks


Reg CC ‐ Same‐Day Settlement

• If presentment of a check meets these requirements –Paying bank is accountable to presenting bank for amount of the check unless, by the close of Fedwire on the business day it receives the check:Settles with the presenting bank for the amount of the check by credit to an account at a Federal Reserve Bank designated by the presenting bankReturns the check




Definitions

• Reconverting Bank–Bank that creates a substitute check; or–For substitute check created by a non‐bankFirst bank that transfers, presents, or returns that substitute check

• Truncating Bank –Bank that removes the original check from the check collection process; or

–Non‐bank that removes original check from the check collection process, thenFirst bank that transfers, presents, or returns, in lieu of original check, substitute check or, by agreement information relating to original check


Definitions

• Sufficient Copy and Copy is‐–Sufficient copy: Copy of an original check that accurately represents all information on front and back of the original checkSufficient to determine whether a claim is valid

–Copy of original check: Paper reproduction of an original check, includingPaper printout of electronic image of original checkPhotocopy of original checkSubstitute check




Forward Substitute Check - Front

Notes:Creating, truncating and BOFD Institution is not necessarily the same.Truncating Institution is not necessarily the BOFD or Return Location. Look at Endorsement on back for Return Location.Date & Sequence numbers may not be available for Truncating Institution.

1800

5394

46

[053

0001

83] 0

1/03

/200

2

Substitute Check

Legal Legend

Creating Institution Routing Number, Creation Date & Sequence Number

Original Truncating Institution Routing Number, Date & Sequence

Original Scanned Front Image

Optional Area

No branding or marketing

Substitute Check Identifier

MICR Line from Original Check

Clipped Area

45

Substitute Check

• Definition–Contains image of front and back of check–Conforms to industry standards–Designed to be processed exactly as if it were the original paper check

–Suitable for automated processing• Provisions

–Legal equivalent of original check for all purposes–Accurately represent all information on original check

–Bears legend–Must Includes all indorsements– Identifies reconverting and truncating bank




Substitute Check Warranties / Indemnities

• Warranties apply to all substitute checks • Financial institution that creates substitute checks warrants:–Meets all requirements for legal equivalency–No double debit

• Bank that creates substitute check indemnifies all parties for loss, if loss is due to receipt of substitute check –Consequential damages rests with financial institution that creates Substitute Check

–Financial institution can limit liability, if it produces original check or copy on request


Check 21 Expedited Recredit

PAYING BANK

RECONVERTING BANKSub Ck

CLAIM CLAIM

40 Calendar Days

$$$10 Business

Days

10 DAYS

ConsumerStatement

1) Paying bank must provide consumer with original check, copy of original check or recredit within 10 days of claim up to $2,500 per check

2) Amounts > $2,500 must be recredited to consumer within 45 days3) Paying bank must make claim to reconverting bank within 120 days of

transaction that gave rise to claim4) Reconverting bank must provide recredit, original check or copy within 10 days

of paying bank claim

120 DAYS

Check, Copy

or $$$




Consumer Awareness – Disclosures

• Describe substitute check is legal equivalent of original check and recredit rights / how they apply if consumer believes substitute check not properly charged to account

• Disclosure required to consumers who:– Receive paid checks with periodic statements or on an occasional basis

– Provide disclosure to consumer customer who requests original or copy or when receives a substitute check at the time of requestExample: Financial institution returns a substitute check to depositing customer (return item for NSF item)


Statute of Limitations

• Designed to prevent fraudulent / stale claims from arising after all evidence lost or after facts have become obscure through passage of time–Defense ordinarily asserted by defendant to defeat an action brought after appropriate time has elapsed

–Enacted by the legislature, which may either extend or reduce time limits, subject to certain restrictions

• Statute of Limitations:–Under Reg CC = 1 yearRecall in prior session, under UCC = 3 years




Questions


Quiz Questions

• Available online with session handouts• Review each question carefully

–Answer based on what’s been presented–Use additional recommended resources as neededP.R.E.P. GuideQuestion of the DayOther online exam resources

–Answer Key included–Will review at start of next session

• Save weekly Quiz Handouts–Review Questions and answers–Will reference in Series Review sessions

National Check Payments Certification 52



Recommended Resources

• Regulation CC (12 CFR – Part 229): http://www.ecfr.gov/cgi‐bin/text‐idx?SID=0ed75d38896a339d9b5189ceb4ebe8b9&node=12:3.0.1.1.10&rgn=div5

• Regulation J – Collection of Checks and Other Items by Federal Reserve Banks and Funds Transfers Through Fedwire (12 CFR – Part 210): http://www.ecfr.gov/cgi‐bin/text‐idx?SID=0ed75d38896a339d9b5189ceb4ebe8b9&node=12:2.0.1.1.11&rgn=div5

• Federal Reserve website: http://www.frbservices.org/regulations/operating_circulars.html

• ECCHO website: www.eccho.org/rules


Next Session

• Session #4: March 6– 2:00 pm ET (1:00 pm CT / 11:00 am PT)–All sessions – 90‐minutes

• Topic: “Image Exchange: Rules and Agreements”–Will discuss:Rules and Agreements including:

o Private Sector – ECCHO Ruleso Federal Reserve Rules: Operating Circular 3 (OC3) and Reg J

ECCHO/Fed Rules ComparisonWarranties and Indemnification Summary

National Check Payments Certification 54



Thank You!

Electronic Check Clearing House Organization3710 Rawlins Street; Suite 1075

Dallas, Texas 75219

Regulations – Regulation CC

NOTICEThis NCPC Program document contains copyrighted materials of its publisher.

These program training materials may not be reproduced or published, in whole or in part, without the express permission of ECCHO.

Ellen Heffner, NCPDirector and Education Manager [email protected]‐273‐3211

Phyllis Meyerson, AAP, CCMExecutive Vice President

pmeyerson@ eccho.org214‐273‐3202

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