Question: Must the bank follow the E-Sign Act requirements if providing a notice of nonpayment to a customer electronically?
Answer: The commentary to § 229.33(h), clarifies that a notice can be provided by email or fax. However, only Regulation CC, Subpart B, requires conforming with the E-Sign Act requirements for any disclosures or notices provided to consumers (not commercial customers) in accordance with Subpart B. The notice of nonpayment under § 229.33(h), is set forth under Subpart C, which does not address electronic consent. However, in light of the Subpart B requirements and a general best practice, conforming with E-Sign requirements will protect the bank by creating a presumption that notice was provided. Therefore, we advise meeting E-Sign requirements for any Regulation CC notice or disclosures, to consumer and non-consumer customers.
This paragraph requires a depositary bank to notify its customer of nonpayment upon receipt of a returned check or notice of nonpayment. Notice also must be given if a depositary bank receives a notice of recovery under §229.35(b). A bank that chooses to provide the notice required by §229.33(h) in writing may send the notice by email or facsimile if the bank sends the notice to the email address or facsimile number specified by the customer for that purpose. The notice to the customer required under this paragraph also may satisfy the notice requirement of §229.13(g) if the depositary bank invokes the reasonable-cause exception of §229.13(e) due to the receipt of a notice of nonpayment, provided the notice meets all the requirements of §229.13(g). Commentary to § 229.33(h), https://www.ecfr.gov/cgi-bin/text-idx?SID=35b0b61237b153e41051d2fd905844bb&mc=true&node=ap12.3.229.0000_0nbspnbspnbsp.e&rgn=div9
For a customer who is a consumer, a depositary bank satisfies the written-notice requirement by sending an electronic notice in compliance with the requirements of the Electronic Signatures in Global and National Commerce Act (12 U.S.C. 7001 et seq.), which include obtaining the consumer’s affirmative consent to such means of notice. Commentary to § 229.15(a), https://www.ecfr.gov/cgi-bin/text-idx?SID=35b0b61237b153e41051d2fd905844bb&mc=true&node=ap12.3.229.0000_0nbspnbspnbsp.e&rgn=div9
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