12 U.S.C. § 5008 — Delays in an emergency

Page 1781 TITLE 12—BANKS AND BANKING § 5008 the consumer’s account under section 5006 of this title, together with an estimate of the amount of the loss or recredit; (C) the reason why production of the origi- nal check, another substitute check, or a better copy of the original check is nec- essary to determine the validity of the charge to the consumer account or the war- ranty claim; and (D) information sufficient for the indem- nifying bank to identify the substitute check and to investigate the claim. (2) Requirements relating to copies of sub- stitute checks If the information submitted by a claimant bank pursuant to paragraph (1) in connection with a claim for an expedited recredit includes a copy of any substitute check for which any such claim is made, the claimant bank shall take reasonable steps to ensure that any such copy cannot be— (A) mistaken for the legal equivalent of the check under section 5003(b) of this title; or (B) sent or handled by any bank, including the indemnifying bank, as a forward collec- tion or returned check. (3) Claim in writing (A) In general An indemnifying bank may, in the discre- tion of the bank, require the claimant bank to submit the information required by para- graph (1) in writing, including a copy of the written or electronically submitted claim, if any, that the consumer provided in accord- ance with section 5006(b) of this title. (B) Means of submission An indemnifying bank that requires a sub- mission of information under subparagraph (A) may permit the claimant bank to make the submission electronically, if the claim- ant bank has agreed to communicate with the indemnifying bank in that manner. (c) Recredit by indemnifying bank (1) Prompt action required No later than 10 business days after the busi- ness day on which an indemnifying bank re- ceives a claim under subsection (a) from a claimant bank with respect to a substitute check, the indemnifying bank shall— (A) provide, to the claimant bank, the original check (with respect to such sub- stitute check) or a copy of the original check (including an image or a substitute check) that— (i) accurately represents all of the infor- mation on the front and back of the origi- nal check (as of the time the original check was truncated); or (ii) is otherwise sufficient to determine the bank’s claim is not valid; and (B) recredit the claimant bank for the amount of the claim up to the amount of the substitute check, plus interest if applicable; or (C) provide information to the claimant bank as to why the indemnifying bank is not obligated to comply with subparagraph (A) or (B). (2) Recredit does not abrogate other liabilities Providing a recredit under this subsection to a claimant bank with respect to a substitute check shall not absolve the indemnifying bank from liability for claims brought under any other law or from additional damages under section 5005 or 5009 of this title with respect to such check. (3) Refund to indemnifying bank If a claimant bank reverses, in accordance with section 5006(e) of this title, a recredit pre- viously made to a consumer account under section 5006(c) of this title, or otherwise re- ceives a credit or recredit with regard to such substitute check, the claimant bank shall promptly refund to any indemnifying bank any amount previously advanced by the in- demnifying bank in connection with such sub- stitute check. (d) Production of original check or a sufficient copy governed by section 5005(d) If the indemnifying bank provides the claim- ant bank with the original check or a copy of the original check (including an image or a sub- stitute check) under subsection (c)(1)(A), section 5005(d) of this title shall govern any right of the indemnifying bank to any repayment of any funds the indemnifying bank has recredited to the claimant bank pursuant to subsection (c). (Pub. L. 108–100, § 8, Oct. 28, 2003, 117 Stat. 1186.) 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. § 5008. Delays in an emergency A delay by a bank beyond the time limits pre- scribed or permitted by this chapter shall be ex- cused if the delay is caused by interruption of communication or computer facilities, suspen- sion of payments by another bank, war, emer- gency conditions, failure of equipment, or other circumstances beyond the control of a bank and if the bank uses such diligence as the cir- cumstances require. (Pub. L. 108–100, § 9, Oct. 28, 2003, 117 Stat. 1188.) 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. 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