When a customer disputes an ACH transaction, in terms of an affidavit, can we compel the customer to fill an affidavit out? Can we state in letters to the customer that they MUST sign and return by a specific date?

Thanks!

Let's start with the term "affidavit." NACHA rules call for a Written Statement Under the Penalty of Perjury" (WSUPP). An affidavit makes a written statement a sworn statement. If in your state it's necessary to obtain an affidavit in order to be subject to penalties for perjurious statements, OK. Otherwise, save yourself the aggravation of having to get a Notary, and use a simple WSUPP.

Can you compel the customer to complete the statement/affidavit? No. The customer is entitled to the protections of Regulation E without any requirement for such a document.

The WSUPP is required by NACHA so that you can get YOUR money back from the originator. That's quite separate from your obligation to make your customer whole under Regulation E (assuming we're talking about a consumer transaction and a claim it's unauthorized). You can certainly ask your customer to cooperate in signing the WSUPP/affidavit.

From the other side of the argument, you won't have much in the way of information in-house to help you determine that a payment was authorized. You are only required to look to information in-house when it comes to ACH items. You might conclude that the transaction posted as submitted. Then, if the customer signs an affidavit/WSUPP, you have a document that claims to state the truth of the matter that can lead you to a different result.

Thanks John. That makes sense. Our document does have the WSUPP (love that acronym!), so I belive that's okay. The letter that we're sending with this document contains the language: Your immediate attention to this process will aid in the resolution of your investigation. Can I say this without fear of crossing Reg E?

We to date have never had anyone not agree to sign the form plus the ODFI request you have to supply them with a statement so the best one is the WSUPP. Sometimes folks don't like filling out forms so we assist by getting the information and their reason and send or if present have them review & sign and enclose a stamped envelope for return.
If this is a reocurring ACH, you need to do a stop payment first & should the item show up send back s/pay, then have customer monitor account and if it shows up again, they call bank, & then do the unauthorized.

Yes, Aleta Jo, I think you can word your letter that way. Just be sure that you're not delaying your investigation pending receipt of the paperwork.

Interjecting here on a Friday afternoon.... everytime I read the WSUPP I think of the Bud commercial with the guys yelling at each other "WASSUP" (what's up blended together) and I have to crack a smile.....

That's what I think every time too, smcfarland!

My thanks again, John. I have one last question and I think I'm confusing Reg E and NACHA requirements again. When an ACH transaction is due to fraud, we have a separate document other then the WSUPP ( ) to send out, and we request this document to be notarized. I've gone all through Reg E and I cannot find anything that states a need for this. Are we out of line requesting disputes for fraud transactions be notarized?

Suzy

Out of line? Probably not. Overreaching? Probably.
The WSUPP is sufficient for the NACHA rules and for Reg. E. Someone in your organization at some time or another must have come up with a reason for the affidavit. You could consider running it by counsel to see if it buys you anything to have it. Otherwise, consider ditching it.

That's exactly what I wanted to hear! Thanks John.

John (or anyone else!)

Can you tell I just completed our ACH audit......Our WSUPP has the State/County lines at the top. No notary info. Call this stupid Friday afternoon question of the day.....but what is the purpose of that? It looks like it should be a notarized form????

No, not a notarized form. The WSUPP at my former institution had the state and county on top as well. The customer may make a report in a different county than where they reside, so that's why it was on there. Why it's relative, I haven't a clue.

Better guess -- Your bank once used a notarized form. When NACHA made it plain it was looking for a WSUPP, which need not be notarized in many jurisdictions, your bank dropped the notarial requirement and the state/county lines are vestigial.

A different guess -- Someone inside or outside your bank got the idea that a WSUPP is like a notarized oath, and notarized forms included the state/county information.

Not needed, plain and simple, unless you're having the forms notarized.

Just for my own knowledge - has anybody ever had an ODFI request a WSUPP from your Bank?

And please correct me if I am wrong but doesn't the WSUPP for ARC, POP, and RCK entries require the customer to swear under oath?

None of the NACHA requirements calls for an oath. Those that call for a WSUPP require that the signature be affixed to a document that states that the statement is true and is being made under the penalties of perjury. That's close to an oath, but not identical.

My ODFI has requested the WSUPP. That reminds me that I should check to see if that 60 days is up yet. That's a long wait!

But John look at Article 8 - subsections 8.6.5.1, 8.6.5.2, and 8.6.5.3...they pretty much read the same but here is 8.6.5.1:

"For ARC entries for which a Receiver is seeking recredit the Receiver must execute a WSUPP, in the form required by the RDFI, declaring and swearing under oath that either..."

Point conceded. Unfortunately, the rules are full of contradictions. I had not read that far into the rules before.

I couldn't agree more!

Well it is a very large book. I wonder if anyone ever takes the time to bring this stuff up to NACHA?