12 U.S.C. § 5005 | Indemnity

(a)

Indemnity

A reconverting bank and each bank that subsequently transfers, presents, or returns a substitute check in any electronic or paper form, and receives consideration for such transfer, presentment, or return shall indemnify the transferee, any subsequent collecting or returning bank, the depositary bank, the drawee, the drawer, the payee, the depositor, and any endorser, up to the amount described in subsections (b) and (c), as applicable, to the extent of any loss incurred by any recipient of a substitute check if that loss occurred due to the receipt of a substitute check instead of the original check.

(b)

Indemnity amount

(1)

Amount in event of breach of warranty

section 5004 of this titleThe amount of the indemnity under subsection (a) shall be the amount of any loss (including costs and reasonable attorney’s fees and other expenses of representation) proximately caused by a breach of a warranty provided under .

(2)

Amount in absence of breach of warranty

section 5004 of this titleIn the absence of a breach of a warranty provided under , the amount of the indemnity under subsection (a) shall be the sum of—

(A)

the amount of any loss, up to the amount of the substitute check; and

(B)

interest and expenses (including costs and reasonable attorney’s fees and other expenses of representation).

(c)

Comparative negligence

(1)

In general

If a loss described in subsection (a) results in whole or in part from the negligence or failure to act in good faith on the part of an indemnified party, then that party’s indemnification under this section shall be reduced in proportion to the amount of negligence or bad faith attributable to that party.

(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.

(d)

Effect of producing original check or copy

(1)

In general

If the indemnifying bank produces the original check or a copy of the original check (including an image or a substitute check) that accurately represents all of the information on the front and back of the original check (as of the time the original check was truncated) or is otherwise sufficient to determine whether or not a claim is valid, the indemnifying bank shall—

(A)

be liable under this section only for losses covered by the indemnity that are incurred up to the time that the original check or copy is provided to the indemnified party; and

(B)

have a right to the return of any funds it has paid under the indemnity in excess of those losses.

(2)

Coordination of indemnity with implied warranty

The production of the original check, a substitute check, or a copy under paragraph (1) by an indemnifying bank shall not absolve the bank from any liability on a warranty established under this chapter or any other provision of law.

(e)

Subrogation of rights

(1)

In general

Each indemnifying bank shall be subrogated to the rights of any indemnified party to the extent of the indemnity.

(2)

Recovery under warranty

A bank that indemnifies a party under this section may attempt to recover from another party based on a warranty or other claim.

(3)

Duty of indemnified party

Each indemnified party shall have a duty to comply with all reasonable requests for assistance from an indemnifying bank in connection with any claim the indemnifying bank brings against a warrantor or other party related to a check that forms the basis for the indemnification.

Pub. L. 108–100, § 6Oct. 28, 2003117 Stat. 1181(, , .)

Editorial Notes

References in Text

Pub. L. 108–100Oct. 28, 2003117 Stat. 1177 section 5001 of this titleThis chapter, referred to in subsec. (d)(2), was in the original “this Act”, meaning , , , which is classified generally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under and Tables.

Statutory Notes and Related Subsidiaries

Effective Date

Oct. 28, 2003section 20 of Pub. L. 108–100 section 5001 of this titleSection effective at the end of the 12-month period beginning on , see , set out as a note under .