Answer:
Let's not throw around the word negligence for reasons that will be apparent in a minute. Let's assume that your customer is claiming that all of these charges were not authorized, and that the first of them occurred in December 2007. There are a couple of dates you need to establish. The first is the date on which you delivered the statement reflecting the first December 2007 transaction in dispute. The second date is 60 days after the first date. We need those dates to determine which transactions the customer is liable for. You also need to determine whether the customer's Checkcard was lost or stolen. I'm going to assume that it was not, since its doesn't sound like it was, and it makes things simpler.
Under Regulation E, the customer's liability when a lost or stolen access device is not involved starts at the end of the 60-day period counted from the delivery of the statement showing the first unauthorized transfer. So, if we assume that the December statement was delivered on 12/31/07, the customer would be liable for transfers occurring after 2/29/08. The customer would be entitled to credit for any unauthorized transfers occurring before 3/1/08.
That doesn't change just because the customer didn't make her claim until April 15. Whether she lets you know on 2/29/08 or on 12/31/2012 doesn't help you prevent any of the transfers occurring on or before 2/29/08.
Before you start determining when that first statement was delivered, take a look at the fact that your customer claims she has never been able to access her statements. Why is that? Did your bank comply with the ESIGN Act and get your customer's demonstrable consent that (1) she could access her statements and (2) she agreed to receive them electronically? What evidence do you have that she was EVER able to access statements? If you don't have demonstrable consent, you arguably never delivered the required Regulation E-compliant statement, and that could very well mean that your customer is liable for none of the transactions; or, if you changed your delivery method after you did get demonstrable consent, you could get the same result -- no customer liability.
Should your customer have contacted the bank when she discovered she wasn't able to access her bank statements? Yes, she probably should have. Should she have noticed the transactions in question when she viewed her account on your website? Again, yes, but if you didn't comply with the written statement requirement because the bank stubbed its toe on ESIGN, I don't think attempts to shift the responsibility for these transactions to your customer will get very far assuming she has competent aggressive counsel. I think that the customer was probably inattentive and might even be negligent under ordinary standards, but if she can successfully argue that the bank didn't legally comply with the statement requirement, her negligence won't buy the bank anything.
Visa's zero liability policy does have a provision addressing customer negligence, and I believe that delayed notification could be one of the reasons for asserting negligence. You should be able to avoid using the Visa protection because you don't need to meet a statement delivery standard.
First published on BankersOnline.com 5/12/08
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