Practical Lawyer Volume: 34 Issue: 4 Dated: (June 1988) Pages: 63-80
This article provides an overview of legal issues affecting bank liability in cases of embezzlement or other fraud involving the alteration or forgery of checks or forged endorsements.
The difference between material and immaterial alterations of instruments is described, and examples of each are provided. Universal Commerical Code provisions governing alteration that is both material and fraudulent, the burden of proof, liability of the bank paying an altered check, and the holder in due course of an altered check are reviewed. Situations in which there are and are not warranties against material alteration are exemplified. Differences between payor bank liability arising from a forged check versus a forged endorsement are delineated in cases where the payor seeks recovery of the loss from a collecting bank or other person. Defenses against payor bank liability are listed, and instances in which the payor bank is not liable to the customer when it pays a forged check or a check with a forged endorsement are discussed. Rules governing recovery from a collector bank on a forged check or on a forged endorsement are reviewed. Factors affecting the liability of the collecting bank to the drawer and the payee and of the payor bank to the payee also are discussed. Situations in which a statute of limitations applies are noted.
United States of America