Payment Systems. ACH Payments. Basic Concepts ACH Payments. Governing Law EFTA applies to natural persons with consumer accounts. Common Law of Contracts NACHA Rules (Incorporating Article 4??). Basic Concepts ACH Payments. The Players
Originator: The one who makes the entry that initiates the transaction (not necessarily the payor)
Originating Depositary Financial Institution (ODFI): Financial Institution of the Originator
ACH Operator: Party that carries communication and funds from ODFI to RDFI (usually a Federal Reserve Bank)
Receiving Depositary Financial Institution (RDFI): Financial Institution of the Receivor
Receiver: Party to which an entry is directed
Types of Entries
Credit Entry: Pay money
Debit Entry: Withdraw money
Note two ways to pay money:
Payor initiates a credit entry
Payee initiates a debit entry
Payments settled at Federal Reserve Accounts of the participating banks
Debit Transaction must be entered the day before the specified Settlement Date
Credit Transaction must be entered one or two days before the specified settlement date
Return of Entries (Debit or Credit) must be made by RDFI to its ACH Operator by the second business day after the Settlement Date
Stopping Debit Entries
Consumers can stop if they notify RDFI three banking days before the settlement date
ODFI’s have five banking days to retract duplicate or erroneous entries (but must act in 24 hours of discovery)
Originators can retract if they notify Receiver by the settlement date (No right to retract after the settlement date for dissatisfaction with underlying transaction)
Consumer Receivers of an erroneous or fraudulant debit entry must notify RDFI within 15 days of a statement showing the entry.
RDFI must recredit “promptly” probably meaning one day.
Risk of Loss for Unauthorized Items
ODFI warrants that the entry accords with proper authorization.
O sends fraud entry
RDFI debits R account
RDFI sends statement
R notifies RDFI of error
RDFI gets funds from ODFI for breach of warranty
ODFI pursues O for funds
§4-402(a) gives customers a right to consequential damages for wrongful dishonor of an “item”
An ACH debit is not an “item”
But NACHA 14.1.28 says “item” shall include an entry and Article 4 will apply
What does that mean?
NACHA 14.1.28 says “item” shall include an entry and Article 4 will apply
What does that mean?
Unless contrary NACHA Rule Article 4 rules apply. Probably, as a matter of private contract banks agree to be liable for wrongfully dishonored debits as if they were items and Article 4 applied!
Cliff pays by POS conversion at his grocery store
Recently a double entry was put through for groceries
What should he do?
Under EFTA 908(c) if he reports this error to his bank they must recredit within the earlier of their investigation being complete or 10 business days
NACHA requires a “prompt” recredit which is probably 1 business day NACHA 8.6
Instead of POS this was a telecheck where telemarketer despite not being authorized created a paper tele check.
Article 4 applies so check was not properly payable
Under new tele check presentment warranty, depositary bank warrants the tele check was authorized so it bears the loss
Telemarketer instead creates a TEL entry
This is now governed by EFTA rules and NACHA as per problem 6.a
Who bears the loss?
Who bears the loss?
No person may--
(1) condition the extension of credit to a consumer on such consumer's repayment by means of preauthorized electronic fund transfers; or
(2) require a consumer to establish an account for receipt of electronic fund transfers with a particular financial institution as a condition of employment or receipt of a government benefit.
ONB informed Electra that she could pay all her bills by phone and that many creditors would be willing to set up an automatic monthly payment plan whereby ONB would pay routine bills unless she instructed otherwise. Electra signed such a contract with her landlord, to whom ONB agreed to transfer $300 on the first day of each month as rent. What details does ONB have to explain to her? See Regulation E §205.7.
Is the computer’s deduction an ‘‘electronic fund transfer’’ under Regulation E §205.3(b)? If so, is it also an ‘‘unauthorized electronic fund transfer’’ under §205.2(m)? Is the bank liable under §910?
(11) the term “unauthorized electronic fund transfer” means an electronic fund transfer from a consumer's account initiated by a person other than the consumer without actual authority to initiate such transfer and from which the consumer receives no benefit, but the term does not include any electronic fund transfer . . . or (C) which constitutes an error committed by a financial institution.
(b) ONB failed to pay Electra’s rent on the first of January because the computer got backlogged with the huge Christmas volume. Can her landlord evict her? When she is evicted and sues ONB over §910, can the bank defend using §910(b)(1)?
If a system malfunction prevents . . . an electronic fund transfer initiated by a consumer to another person. . . [who] has agreed to accept payment by such means, the consumer's obligation to the other person shall be suspended until the malfunction is corrected and the electronic fund transfer may be completed, unless such other person has subsequently, by written request, demanded payment by means other than an electronic fund transfer.
Subject to subsections (b) and (c) of this section, a financial institution shall be liable to a consumer for all damages proximately caused by--
(1) the financial institution's failure to make an electronic fund transfer, in accordance with the terms and conditions of an account, in the correct amount or in a timely manner when properly instructed to do so by the consumer, except where--
A financial institution shall not be liable under subsection (a)(1) or (2) of this section if the financial institution shows by a preponderance of the evidence that its action or failure to act resulted from--
(1) an act of God or other circumstance beyond its control, that it exercised reasonable care to prevent such an occurrence, and that it exercised such diligence as the circumstances required; or
(c) One month Electra had a dispute with her landlord, so she phoned ONB and told them not to pay the next month’s rent due to be transferred four days later. Is oral notice sufficient? Is her notice timely?
. . . A consumer may stop payment of a preauthorized electronic fund transfer by notifying the financial institution orally or in writing at any time up to three business days preceding the scheduled date of such transfer. The financial institution may require written confirmation to be provided to it within fourteen days of an oral notification if, when the oral notification is made, the consumer is advised of such requirement and the address to which such confirmation should be sent.
In the case of a failure described in subsection (a) of this section which was not intentional and which resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adapted to avoid any such error, the financial institution shall be liable for actual damages proved.
(d) If Linda Liable in Problem 8-2 had made purchases with point of sale (POS) EFTs, would she be able to assert her defenses against her bank under the EFTA?
Jane Austen owned a bookstore and handled the store’s financial affairs through a checking account with Octopus National Bank (ONB). If ONB grants the store an ability to pay its debts by EFTs, does the EFTA apply? See §903(2); Regulation E §205.2(b).
(2) the term “account” means a demand deposit, savings deposit, or other asset account (other than an occasional or incidental credit balance in an open end credit plan as defined in section 1602(i) of this title), as described in regulations of the Board, established primarily for personal, family, or household purposes, but such term does not include an account held by a financial institution pursuant to a bona fide trust agreement;