Could someone please validate my interpretation of next-day availability and the availability schedule from 229.10 and 229.12?

When a cashier's check is deposited via mobile banking, even though it's a next day item but because it wasn't deposited in person, would we be able to defer the availability of the funds until the 2nd business day after the banking day on which the funds were deposited?

I believe the guidance has been to treat mobile deposits the same as paper checks in regard to Reg CC holds but I'd appreciate validation on that as well. If not, then my first question is moot. Thank you!

An image is not a check. Availability should be outlined in your mobile deposit agreement.

If the Fed and the Bureau can ever reach agreement on a final Reg CC rule to clear out all the crud in the regulations subpart B left over from 2010 when the concept of non-local bank went away, update the disclosures and tweak the rules on funds availability (they've only had more than five years to do it), it looks like images captured in RDC and mobile deposit (mRDC) will become "electronic checks" and subject to Reg CC. So, while they aren't governed by the rule yet, it may be a sound idea to apply the same availability to them that you apply to paper checks you receive for deposit. Until then however, you should have availability addressed in your RDC and mobile banking agreements.

It's taken me some time to accept the fact that mobile and RDC items are not governed by Regulation CC, but they are not. I know of no "guidance" that says they should be treated similarly.

However, our industry "earned" Regulation CC by putting on holds of an unreasonable length and failing to tell inform customers both in advance or in arrears that their funds would not be made available. Your contract should tell your customers what you are going to do. Then, you need to stick to it.

On reflection, if you gave the customer an initial Regulation CC disclosure at account inception and later made mobile deposit or remote deposit capture available on the same account, you would need to include any different hold structure in your contract or disclosure for the new service. It would be prudent for you to specifically draw the change to your customer's attention as well. You cannot tell the customer one thing in writing and expect him to understand that the ability to deposit an image vs. a piece of paper would change what you previously said in your disclosure. (I cannot prove that, but in the event of a legal dispute it's the side of the argument I would want.)

Two questions I hope someone can help explain.

1. Under the Reg. CC amendments taking effect July 1, will a item deposited via RDC be considered an "electronic check"? (The new definition of that term says that it means "... an electronic image of, and electronic information derived from, a paper check or paper returned check, respectively, that (1) Is sent to a receiving bank pursuant to an agreement between the sender and the receiving bank; and (2) Conforms with ANS X9.100-187 ...") Since the RDC item was derived from a paper check, it seems like it would meet the new definition of an “electronic check.” That will mean it's legally equivalent to a paper check under Reg. CC.

2. Even if an RDC is an "electronic check" ) since Subpart B of the regulation isn’t changing, does that mean RDC items still won't be subject to the Reg. CC funds availability rules?

Thanks for any help on this confusing topic!

Bump^

#2

Thank you, RL, that is the conclusion I came to as well. None of the amendments seem to have anything to do with Subpart B.

If I have read the above correct, there have been no changes to subpart B so any check deposited through RDC does not fall under our normal availability policy and will follow what we outline in the agreement.

OK. You should have an availability policy for mobile-deposited checks. It should be in your mobile deposit agreement, because electronic checks, as defined finally by the Fed, aren't yet subject to Subpart B of Reg CC.

I'd advise mirroring your policy for real check deposits because sooner or later the two regulators -- FRB and CFPB/BCFP -- will geet their acts together and issue an update to subpart B and the model forms, and that will pull those electronic checks in under the tent flap.

Now that the Reg CC changes have been made (July 2018). Can we now place a hold on a remote deposit check the same as a paper check. i.e. - could we place an extended hold?

There were no changes in July to mobile deposits. They have never been covered under Reg. CC.

your contract with customers using your mobile deposit should cover the availability you place on mobile deposits