Reg E & ACH Disputes
Answer by John Burnett, BOL Guru Guru Bio
Question: Are financial institutions required to send provisional and/or final credit notices to customers with ACH disputes under Regulation E? I'm asking because I have noticed that several banks are merely just crediting the customer's account without sending any type of notice to the customer. Also, when a customer disputes an ACH transaction under Regulation E, is the customer required to fill out an Affidavit Under Penalty of Perjury or is just a letter from the customer okay to dispute the ACH transaction?
Answer: The fact that an EFT entered the bank's processing system via the ACH does not in any way affect a consumer's rights under Regulation E or limit the bank's responsibility to comply with that regulation.
Regulation E does not require that a customer's dispute of a transaction be supported with a writing. With the possible exception of providing provisional credit, you must follow all of the requirements of section 205.11 to research, correct and advise whether the customer provides a written claim or an oral one.
The ACH rules require that you obtain a written statement under penalties of perjury in order for you as the RDFI to use the ACH system's adjustments procedures to return the item. It must be written and it must be a statement under penalties of perjury. The NACHA Operating Guidelines suggest that you determine with advice from counsel whether your state requires that the statement be an affidavit (notarized) in order to be under the penalties of perjury.
Lest there be any misinterpretation, the NACHA rule deals with the relationship between your bank as RDFI and the other bank as ODFI. It does not affect in any way your Regulation E obligations. There is a good discussion of this concept that begins on page OG 114 in the 2009 edition of NACHA's ACH Rules book.
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