O.C.G.A.

O.C.G.A. § 11-4-103 (2019)

Variation by agreement; measure of damages; action constituting ordinary care

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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(a) The effect of the provisions of this article may be varied by agreement, but the parties to the agreement cannot disclaim a bank’s responsibility for its lack of good faith or failure to exercise ordinary care or limit the measure of damages for the lack or failure. However, the parties may determine by agreement the standards by which the bank’s responsibility is to be measured if those standards are not manifestly unreasonable.

(b) Federal reserve regulations and operating circulars, clearinghouse rules, and the like, have the effect of agreements under subsection (a) of this Code section, whether or not specifically assented to by all parties interested in items handled. (c) Action or nonaction approved by this article or pursuant to federal reserve regulations or operating circulars is the exercise of ordinary care and, in the absence of special instructions, action or nonaction consistent with clearing-house rules and the like or with a general banking usage not disapproved by this article, is prima facie the exercise of ordinary care. (d) The specification or approval of certain procedures by this article is not disapproval of other procedures that may be reasonable under the circumstances. (e) The measure of damages for failure to exercise ordinary care in handling an item is the amount of the item reduced by an amount that could not have been realized by the exercise of ordinary care. If there is also bad faith, it includes any other damages the party suffered as a proximate consequence.

History

Code 1933, § 109A-4-103, enacted by Ga. L. 1962, p. 156, § 1; Ga. L. 1996, p. 1306, § 4.

Annotations

Law reviews. For note, “The Law of Evidence in the Uniform Commercial Code,” see 1 Ga. L. Rev. 44 (1966).

JUDICIAL DECISIONS Action in violation of reasonable commercial standards. - Bank cannot enforce agreement permitting it to act in violation of reasonable commercial standards. Perini Corp. v. First Nat’l Bank, 553 F.2d 398, 1977 U.S. App. LEXIS 13115 (5th Cir. 1977). Action pursuant to general banking usage as exercise of ordinary care. - The fact that a bank did not verify signatures on forged checks following a change in its rule on verification was sufficient to raise a factual issue as to its exercise of ordinary care, and, even if it showed conclusively that it complied with local industry standards, that simply shifted the burden to the bank’s customer to produce rebuttal evidence that the bank did not exercise ordinary care. Eason Publications, Inc. v. Nationsbank, 217 Ga. App. 726, 458 S.E.2d 899, 1995 Ga. App. LEXIS 587 (1995). Bank’s deposit agreement with bank’s customer was not unreason-

able and permitted the bank to charge back to the customer’s account the amount of a check upon the check’s return from another bank as fraudulent, although the bank had provided provisional funds that the customer had withdrawn or paid out. Vadde v. Bank of Am., 301 Ga. App. 475, 687 S.E.2d 880, 2009 Ga. App. LEXIS 1355 (2009), cert. denied, No. S10C0624, 2010 Ga. LEXIS 338 (Ga. Apr. 19, 2010), cert. denied, 562 U.S. 894, 131 S. Ct. 298, 178 L. Ed. 2d 143, 2010 U.S. LEXIS 6399 (2010). Determination of bank as “collecting bank” and its liability. - See Alimenta (U.S.A.), Inc. v. Stauffer, 568 F. Supp. 674, 1983 U.S. Dist. LEXIS 14847 (N.D. Ga. 1983). Party subject to limitation on damages. - The drawer of a check made payable to a third party was deemed to have used the instrument in contemplation of its presentment for payment upon the action of a collecting bank and, thus,

was engaged in a transaction governed by the UCC subject to the damage limitation provision of O.C.G.A. § 11-4-103. Farr v. Trust Co. Bank, 220 Ga. App. 423, 469 S.E.2d 501, 1996 Ga. App. LEXIS 223 (1996). Shortening of notice period. - The trial court properly upheld an agreement between a customer and a bank under which the bank could not be charged with liability for negligence because the customer had not notified the bank of disputed checks within 30 days; under O.C.G.A. § 11-4-103(a), parties by agreement could change the 60-day notice period allowed for in O.C.G.A. § 11-4-406(f), and such an agreement was controlling unless it was manifestly unreasonable, which was not the case here, and shortening the time period did not excuse the bank from its duty of ordinary care or

disclaim the bank’s liability for negligence in the future inasmuch as the notice period started over again each time the bank sent a new statement to the customer. Freese v. Regions Bank, N.A., 284 Ga. App. 717, 644 S.E.2d 549, 2007 Ga. App. LEXIS 398 (2007), cert. denied, No. S07C1190, 2007 Ga. LEXIS 691 (Ga. Sept. 24, 2007). Negligence claims. - Because the borrower failed to show that the loan servicer breached an independent duty, the borrower could not state a claim for negligence against the loan servicer; O.C.G.A. § 11-4-103, standing alone, did not impose an independent duty to act or refrain from acting. Phillips v. Ocwen Loan Servicing, LLC, No. 1:12-cv-3861WSD, 2013 U.S. Dist. LEXIS 129721 (N.D. Ga. Sept. 10, 2013).

RESEARCH REFERENCES Am. Jur. 2d. 11 Am. Jur. 2d, Banks and Financial Institutions, §§ 940, 970 et seq. C.J.S. 9 C.J.S., Banks and Banking, § 383 et seq. U.L.A. Uniform Commercial Code (U.L.A.) § 4103. ALR. Clearing house transactions as payment or acceptance of checks, 12 A.L.R. 998. Bank deposit for purpose of meeting certain checks or classes of checks, 24 A.L.R. 1111; 39 A.L.R. 1138; 86 A.L.R. 375. Liability of bank for loss of liberty bonds and war saving stamps, 31 A.L.R. 703; 40 A.L.R. 899. Authority of bank officer or employee to bind bank by endorsement or guaranty of paper for accommodation of third person, 37 A.L.R. 1373. Liability to trustee in bankruptcy of bank paying checks of insolvent depositor

before proceedings in bankruptcy, 41 A.L.R. 557. Balance due other banks on clearing house settlement as preferred claim against insolvent bank, 44 A.L.R. 1535. Measure of damages for breach of duty by a bank in respect to collection of commercial paper, 67 A.L.R. 1511. Bank’s duty to customer or depositor not to disclose information as to his financial condition, 92 A.L.R.2d 900. Bank’s right to apply third person’s funds, deposited in debtor’s name, on debtor’s obligation, 8 A.L.R.3d 235. Liability of savings bank for payment to person presenting lost or stolen passbook or savings account card, 68 A.L.R.3d 1080. Liability of bank in connection with night depository service, 77 A.L.R.3d 597. Bank’s liability for payment or withdrawal on less than required number of signatures, 7 A.L.R.4th 655. Bank’s liability, under state law, for disclosing financial information concerning depositor or customer, 81 A.L.R.4th 377.

Notes of Decisions

Cited in 11 cases, 1983–2020 · leading case: Freese v. Regions Bank, N.A., 644 S.E.2d 549 (Ga. Ct. App. 2007).

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Freese v. Regions Bank, N.A., 644 S.E.2d 549 (Ga. Ct. App. 2007). · cites it 28× “Because the trial court correctly held that OCGA § 11-4-103 (a) allows the parties to change the provision in OCGA § 11-4-406 (f) from 60 to 30 days without regard to lack of due care by either party, we affirm.”

Hale Haven Props., LLC v. Bank of Am., N.A., 815 S.E.2d 574 (Ga. Ct. App. 2018). · cites it 2× “OCGA § 11-4-406 (f) provides: *587 Without regard to care or lack of care of either the customer or the bank, a customer who does not within one year after the statement or items are made available to the customer .”

Eason Publications, Inc. v. NationsBank, 458 S.E.2d 899 (Ga. Ct. App. 1995). · cites it 4× “” OCGA § 11-4-103 (3). The bank contends that “bulk filing” was a general banking practice when the 22 checks were paid.”

Vadde v. Bank of Am., 687 S.E.2d 880 (Ga. Ct. App. 2009). · cites it 2× “The agreements may not disclaim a bank’s responsibility for its own lack of good faith or failure to exercise ordinary care and may not limit the measure of damages for the lack or failure, but this subsection like Section 1-102 (3) approves the practice of parties determining…”

First Union Nat'l Bank v. Davies-Elliott, Inc., 452 S.E.2d 132 (Ga. Ct. App. 1994). · cites it 2× “” The language in the charge is based on OCGA § 11-4-103 (1) which provides that “the provisions of [Article 4] may be varied by agreement except that no agreement can disclaim a bank’s responsibility for its own lack of good faith or failure to exercise ordinary care or can…”

Sec. State Bank v. Visiting Nurses Ass'n of Telfair Cnty., Inc., 568 S.E.2d 491 (Ga. Ct. App. 2002). · cites it 2× “Article 3 of the Uniform Commercial Code addresses the issue of the negotiability of commercial paper, while Article 4 addresses the relationship between banks and their customers. The trial court should have granted the bank’s motion for partial summary judgment on this ground.”

Alimenta (U.S.A.), Inc. v. Stauffer, 568 F. Supp. 674 (N.D. Ga. 1983). · cites it 6× “FNBA contends that it acted as a “collecting” 2 or “presenting” 3 bank with regard to the drafts and that, under O.C.G.A. § 11-4-103(5), it is not liable to Wy-Tex for any amount.”

Bank South, N.A. v. Roswell Jeep Eagle, Inc., 419 S.E.2d 522 (Ga. Ct. App. 1992). · cites it 2× “” OCGA § 11-4-103 (3). Accordingly, if the Bank violated OCGA § 11-4-302 (b), it violated the applicable standard of ordinary care for a payor bank and would be liable to RJE.”

Cohutta Banking Co. v. Home Fed. Sav. & Loan Ass'n, 372 S.E.2d 689 (Ga. Ct. App. 1988). · cites it 6× “Appellant Cohutta Banking Company brought suit against appellee Home Federal Savings & Loan Association, seeking to recover damages under the Uniform Commercial Code (OCGA § 11-4-103 (5)) for Home Federal’s failure to give “wire advice” notice of non-payment of a check in the…”

Farr v. Trust Co. Bank of Savannah, N. A., 469 S.E.2d 501 (Ga. Ct. App. 1996). · cites it 16× “Trust Company answered denying any negligence, but moved for partial summary judgment limiting damages to those authorized a collecting bank pursuant to OCGA § 11-4-103 (5). On appeal, Farr contends that the trial court’s grant of partial summary judgment for Trust Company was…”

Noune Kalpakchian v. Bank of Am. Corp. (11th Cir. 2020). · cites it 2× “at 31 (citing O.C.G.A. § 11-4-103). Kalpakchian also says the district court erred when it did not interpret the contract as contradicting itself.”

— 11-4-103(5) — 1 case

Alimenta (U.S.A.), Inc. v. Stauffer, 568 F. Supp. 674 (N.D. Ga. 1983). “FNBA contends that it acted as a “collecting” 2 or “presenting” 3 bank with regard to the drafts and that, under O.C.G.A. § 11-4-103(5), it is not liable to Wy-Tex for any amount.”

— 11-4-103(a) — 2 cases

Freese v. Regions Bank, N.A., 644 S.E.2d 549 (Ga. Ct. App. 2007). “Because the trial court correctly held that OCGA § 11-4-103 (a) allows the parties to change the provision in OCGA § 11-4-406 (f) from 60 to 30 days without regard to lack of due care by either party, we affirm.”

Noune Kalpakchian v. Bank of Am. Corp. (11th Cir. 2020). “at 31 (citing O.C.G.A. § 11-4-103). Kalpakchian also says the district court erred when it did not interpret the contract as contradicting itself.”

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