I. WHAT WARRANTIES DOES A COLLECTING BANK (OR CUSTOMER) MAKE TO A DRAWEE BANK OR OTHER DRAWEE WHO IN GOOD FAITH PAYS OR ACCEPTS A DRAFT?
“Presentment Warranties” are addressed in U.C.C. § 4-208. If the drawee pays or accepts the draft, the person obtaining payment or acceptance, at the time of presentment, and a previous transferor of the draft, at the time of transfer, warrant to the drawee that pays or accepts the draft in good faith that:
Certain exceptions exist as to the above-stated warranties and when faced with this issue, it is advisable to consult with bank counsel.
A drawee bank is strictly liable to the drawer for payment of a forged check or a check bearing a forged indorsement. In the case of a forged indorsement, the drawee bank may sue and recover against the party who took the check from the forger; but in the case of a forged check, liability generally rests with the drawee bank, unless certain warranties are broken. A drawee making payment may recover from a warrantor damages for breach of warranty equal to the amount paid by the drawee less the amount the drawee received or is entitled to receive from the drawer because of the payment. In addition, the drawee is entitled to compensation for expenses and loss of interest resulting from the breach.
The right of the drawee to recover damages is not affected by any failure of the drawee to exercise ordinary care in making payment. If the drawee accepts the draft (i) breach of warranty is a defense to the obligation of the acceptor, and (ii) if the acceptor makes payment with respect to the draft, the acceptor is entitled to recover from a warrantor for breach of warranty the amounts stated above.
The warranties cannot be disclaimed with respect to checks. Unless notice of a claim for breach of warranty is given to the warrantor within thirty days after the claimant has reason to know of the breach and the identity of the warrantor, the warrantor is discharged to the extent of any loss caused by the delay in giving notice of the claim.
II. WHAT WARRANTIES DOES A COLLECTING BANK (AND CUSTOMER) MAKE TO ITS TRANSFEREE AND TO ANY SUBSEQUENT COLLECTING BANK WHICH TAKES AN ITEM IN GOOD FAITH?
“Transfer Warranties” are addressed in U.C.C. § 4-207. The rule is that a customer or collecting bank that transfers an item and receives a settlement or other consideration warrants to the transferee and to any subsequent collecting bank that:
If an item is dishonored, a customer or collecting bank transferring the item and receiving settlement or other consideration is obliged to pay the amount due on the item according to its terms when completed. The obligation of a transferor is owed to the transferee and to any subsequent collecting bank that takes the item in good faith. A transferor cannot disclaim its obligation by an indorsement stating that it is made “without recourse” or other wise disclaiming liability.
A person to whom the warranties are made and who took the item in good faith may recover from the warrantor as damages for breach of warranty an amount equal to the loss suffered as a result of the breach, but not more than the amount of the item plus expenses and loss of interest incurred as a result of the breach.
III. WHAT ARE THE RULES REGARDING ENCODING AND RETENTION WARRANTIES?
U.C.C. § 4-209 provides for “encoding and retention warranties.” The rule is that a person who encodes information on or with respect to an item after issue warrants to any subsequent collecting bank and to the payor bank or other payor that the information is correctly encoded. If the customer of a depositary bank encodes, that bank also makes the warranty.
A person who undertakes to retain an item pursuant to an agreement for electronic presentment warrants to any subsequent collecting bank and to the payor bank or other payor that retention and presentment of the item comply with the agreement. If a customer of a depositary bank undertakes to retain an item, that bank also makes this warranty.
A person to whom warranties are made and who took the item in good faith may recover from the warrantor as damages from breach of warranty an amount equal to the loss suffered as a result of the breach, plus expenses and loss of interest incurred as a result of the breach.
IV. WHAT IS A PAYOR BANK’S RESPONSIBILITY FOR THE LATE RETURN OF ITEMS?
According to U.C.C. § 4-302, if an item is presented to and received by a payor bank, the bank is accountable for the amount of:
The liability of a payor bank to pay an item is subject to defenses based on breach of a presentment warranty or proof that the person seeking enforcement of the liability presented or transferred the item for the purpose of defrauding the payor bank.
V. WHAT IS THE POTENTIAL LIABILITY OF COLLECTING BANK AS AGENT?
U.C.C. § 4-201 establishes the rule when a collecting bank is considered an agent or subagent of the owner of an item and provides that any settlement given is provisional. NOTE: This section also addresses items endorsed “pay any bank.” Responsibilities of collecting banks are spelled out in U.C.C. § 4-202.
A collecting bank must exercise ordinary care in:
When presenting an item or sending it for presentment, a bank is not liable for the insolvency, neglect, misconduct, mistake, or default of another bank or person or for loss or destruction of an item in the possession of others or in transit.