And we can't charge a fee for the one time transactions or if a transaction is forced through
If you are only planning to obtain an opt-in to enable the bank to charge a fee for those forced transactions, examiners (especially the FDIC) will consider a customer opting into a fee when you are not providing an actual overdraft service to be UDAAP. In other words, if you will continue as a matter of practice to deny my debit card authorizations that would overdraw my account, but charge me a fee for those that slip through and are forced, then you are not providing a service and should not be obtaining an opt-in from me for a service that does not exist.
The Reg E opt-in applies to formal overdraft programs where the bank offers a predetermined limit (or a variable limit based on account activity) up to which it will approve debit card transactions against that limit even if the customer does not have adequate funds at the time the authorization is obtained. Customers do not "apply" for these programs and they are not based on a credit decision. The Bank simply offers this as an add-on service to the checking account.
Opt-ins do not apply to overdraft lines of credit covered by Regulation Z. If I have a line of credit, you would advance against the line to cover overdrafts instead of charging me a overdraft fee. If I exceed my line of credit on a forced transaction, Reg E still prohibits you from charging an overdraft fee.
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