Answer:
There's no need to split hairs on your question. You cannot impose an overdraft fee on transactions paid before you send the confirmation. The answer was clearly provided with the most recent clarifying amendments to Regulation E's Section 205.17. Here's the way the applicable comments in the Official Staff Interpretations (Supplement I to Regulation E) reads:
17(c) - Timing
(2) Permitted fees or charges. Fees or charges for ATM and one-time debit card overdrafts may be assessed only for overdrafts paid on or after the date the financial institution receives the consumer’s affirmative consent to the institution’s overdraft service. See also comment 17(b)-7.
17(b) - Opt-in requirement
(7) - Confirmation
....An institution complies with the confirmation requirement if it has adopted reasonable procedures designed to ensure that overdraft fees are assessed only in connection with transactions paid after the confirmation has been mailed or delivered to the consumer.
First published on BankersOnline.com 8/16/10
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