12 U.S.C. § 5011 — Consumer awareness

Page 1782 TITLE 12—BANKS AND BANKING § 5009 § 5009. Measure of damages (a) Liability (1) In general Except as provided in section 5005 of this title, any person who, in connection with a substitute check, breaches any warranty under this chapter or fails to comply with any requirement imposed by, or regulation pre- scribed pursuant to, this chapter with respect to any other person shall be liable to such per- son in an amount equal to the sum of— (A) the lesser of— (i) the amount of the loss suffered by the other person as a result of the breach or failure; or (ii) the amount of the substitute check; and (B) interest and expenses (including costs and reasonable attorney’s fees and other ex- penses of representation) related to the sub- stitute check. (2) Offset of recredits The amount of damages any person receives under paragraph (1), if any, shall be reduced by the amount, if any, that the claimant receives and retains as a recredit under section 5006 or 5007 of this title. (b) Comparative negligence (1) In general If a person incurs damages that resulted in whole or in part from the negligence or failure of that person to act in good faith, then the amount of any liability due to that person under subsection (a) shall be reduced in pro- portion to the amount of negligence or bad faith attributable to that person. (2) Rule of construction Nothing in this subsection reduces the rights of a consumer or any other person under the Uniform Commercial Code or other applicable provision of Federal or State law. (Pub. L. 108–100, § 10, Oct. 28, 2003, 117 Stat. 1188.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (a)(1), was in the original ‘‘this Act’’, meaning Pub. L. 108–100, Oct. 28, 2003, 117 Stat. 1177, which is classified generally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5001 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective at the end of the 12-month period beginning on Oct. 28, 2003, see section 20 of Pub. L. 108–100, set out as a note under section 5001 of this title. § 5010. Statute of limitations and notice of claim (a) Actions under this chapter (1) In general An action to enforce a claim under this chapter may be brought in any United States district court, or in any other court of com- petent jurisdiction, before the end of the 1- year period beginning on the date the cause of action accrues. (2) Accrual A cause of action accrues as of the date the injured party first learns, or by which such person reasonably should have learned, of the facts and circumstances giving rise to the cause of action. (b) Discharge of claims Except as provided in subsection (c), unless a person gives notice of a claim to the indem- nifying or warranting bank within 30 days after the person has reason to know of the claim and the identity of the indemnifying or warranting bank, the indemnifying or warranting bank is discharged from liability in an action to enforce a claim under this chapter to the extent of any loss caused by the delay in giving notice of the claim. (c) Notice of claim by consumer A timely claim by a consumer under section 5006 of this title for expedited recredit con- stitutes timely notice of a claim by the con- sumer for purposes of subsection (b). (Pub. L. 108–100, § 11, Oct. 28, 2003, 117 Stat. 1188.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a)(1), (b), was in the original ‘‘this Act’’, meaning Pub. L. 108–100, Oct. 28, 2003, 117 Stat. 1177, which is classified generally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5001 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective at the end of the 12-month period beginning on Oct. 28, 2003, see section 20 of Pub. L. 108–100, set out as a note under section 5001 of this title. § 5011. Consumer awareness (a) In general Each bank shall provide, in accordance with subsection (b), a brief notice about substitute checks that describes— (1) how a substitute check is the legal equiv- alent of an original check for all purposes, in- cluding any provision of any Federal or State law, and for all persons, if the substitute check— (A) accurately represents all of the infor- mation on the front and back of the original check as of the time at which the original check was truncated; and (B) bears the legend: ‘‘This is a legal copy of your check. You can use it in the same way you would use the original check.’’; and (2) the consumer recredit rights established under section 5006 of this title when a con- sumer believes in good faith that a substitute check was not properly charged to the account of the consumer. (b) Distribution (1) Existing customers With respect to consumers who are cus- tomers of a bank on the effective date of this Page 1783 TITLE 12—BANKS AND BANKING § 5014 chapter and who receive original checks or substitute checks, a bank shall provide the no- tice described in subsection (a) to each such consumer no later than the first regularly scheduled communication with the consumer after the effective date of this chapter. (2) New account holders A bank shall provide the notice described in subsection (a) to each consumer who will re- ceive original checks or substitute checks, other than existing customers referred to in paragraph (1), at the time at which the cus- tomer relationship is initiated. (3) Mode of delivery A bank may send the notices required by this subsection by United States mail or by any other means through which the consumer has agreed to receive account information. (4) Consumers who request copies of checks Notice shall be provided to each consumer of the bank that requests a copy of a check and receives a substitute check, at the time of the request. (c) Model language (1) In general Before the end of the 9-month period begin- ning on October 28, 2003, the Board shall pub- lish model forms and clauses that a bank may use to describe each of the elements required by subsection (a). (2) Safe harbor (A) In general A bank shall be treated as being in compli- ance with the requirements of subsection (a) if the bank’s substitute check notice uses a model form or clause published by the Board and such model form or clause accurately describes the bank’s policies and practices. (B) Deletion or rearrangement A bank may delete any information in the model form or clause that is not required by this chapter or rearrange the format. (3) Use of model language not required This section shall not be construed as re- quiring any bank to use a model form or clause that the Board prepares under this sub- section. (Pub. L. 108–100, § 12, Oct. 28, 2003, 117 Stat. 1189.) Editorial Notes REFERENCES IN TEXT The effective date of this chapter, referred to in sub- sec. (b)(1), is at the end of the 12-month period begin- ning on Oct. 28, 2003, except as otherwise specifically provided in this chapter, see section 20 of Pub. L. 108–100, set out as an Effective Date note under section 5001 of this title. This chapter, referred to in subsec. (c)(2)(B), was in the original ‘‘this Act’’, meaning Pub. L. 108–100, Oct. 28, 2003, 117 Stat. 1177, which is classified generally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5001 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective at the end of the 12-month period beginning on Oct. 28, 2003, see section 20 of Pub. L. 108–100, set out as a note under section 5001 of this title. § 5012. Effect on other law This chapter shall supersede any provision of Federal or State law, including the Uniform Commercial Code, that is inconsistent with this chapter, but only to the extent of the inconsist- ency. (Pub. L. 108–100, § 13, Oct. 28, 2003, 117 Stat. 1190.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning Pub. L. 108–100, Oct. 28, 2003, 117 Stat. 1177, which is classified generally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5001 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective at the end of the 12-month period beginning on Oct. 28, 2003, see section 20 of Pub. L. 108–100, set out as a note under section 5001 of this title. § 5013. Variation by agreement (a) Section 5007 Any provision of section 5007 of this title may be varied by agreement of the banks involved. (b) No other provisions may be varied Except as provided in subsection (a), no provi- sion of this chapter may be varied by agreement of any person or persons. (Pub. L. 108–100, § 14, Oct. 28, 2003, 117 Stat. 1190.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (b), was in the original ‘‘this Act’’, meaning Pub. L. 108–100, Oct. 28, 2003, 117 Stat. 1177, which is classified generally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5001 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective at the end of the 12-month period beginning on Oct. 28, 2003, see section 20 of Pub. L. 108–100, set out as a note under section 5001 of this title. § 5014. Regulations The Board may prescribe such regulations as the Board determines to be necessary to imple- ment, prevent circumvention or evasion of, or facilitate compliance with the provisions of this chapter. (Pub. L. 108–100, § 15, Oct. 28, 2003, 117 Stat. 1190.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning Pub. L. 108–100, Oct. 28, 2003, 117