Check fraud, forged endorsements and who bears the loss
Allocation rules in the commercial code that are older than most of the fraud they now govern.
Esshaki Legal Media TeamCurrent as of July 2022
Loss allocation for altered or forged checks is governed by the negotiable
instruments and bank deposit articles of the commercial code, refined by
agreement and by clearing rules.
Forged drawer signature. The drawee bank generally bears the loss, on the
principle that it is best placed to know its customer’s signature, subject to
the customer’s own negligence.
Forged endorsement. Loss generally falls back on the depositary bank through
transfer and presentment warranties, since it accepted the item from the
wrongdoer.
Alterations are allocated by warranty as well, with the drawee able to
charge the account only as originally drawn.
Customer duties. An account holder must examine statements with reasonable
promptness and notify the bank, or lose the right to assert unauthorized
signatures and alterations. A separate rule cuts off claims for repeated
wrongdoing by the same person after a stated period regardless of care.
Comparative negligence. Where the customer’s failure to exercise ordinary
care substantially contributed to the loss, allocation is shared. Failure to use
available fraud-prevention services is increasingly argued here.
Positive pay and payee match services shift the practical risk, and the
account agreement’s treatment of a customer’s refusal to enrol matters.
Midnight deadline rules govern return of items and are unforgiving.