Answer by Andy Zavoina:If the debits were errors under Reg E, as defined under Section 205.11(a)(1), then Reg E rules will apply. These Reg E rules are the basic foundation which must be met. You can treat the consumer more favorably and this is where ACH rules or those under Visa or MasterCard debit card rules, would come into play. To the consumer they provide equal or greater protection, but you cannot do less than they would be entitled to under Reg E.
Under Reg E, if you decide to pay a claim automatically, you can bypass the investigation requirements. In this case, however, you indicate you do this only after you receive an affidavit. This is a NACHA rule and is not part of Reg E. The consumer is not required to complete an affidavit to file a claim. You may require it for them to receive provisional credit, but you may not deny the claim because this wasn't done. You would in that case revert from the NACHA rules to Reg E.
Answer by John Burnett:Just to clear up a couple of things here -- an affidavit is not required under NACHA rules. NACHA requires a statement under penalty of perjury. Only if your state law requires such a statement to be elevated to the level of an affidavit (with acknowledgment, etc.), will you have to go the Notary route. Even NACHA's "WSUPP" (Written Statement Under Penalty of Perjury) can't be required as a condition of providing provisional credit under Regulation E, although customers often have no problem completing the WSUPP since it covers both the Reg E written notice and NACHA requirements.
Try separating in your mind the two pieces of the resolution of your customer's problem. The first is addressed by Regulation E, includes the customer's notice of the error (with or without a writing), and involves your relationship with your customer and making the customer whole under Regulation E. The second is the NACHA rule that allows your bank to recover funds from the Originating Bank once you have obtained a WSUPP from your customer and submitted an ACH adjusting entry within the appropriate deadlines. The two requirements are closely related, but they stand independent of one another.
First published on BankersOnline.com 9/11/06