                                                                                     FILED
                                                                                 Jul 24 2018, 8:42 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEE
      Hamish S. Cohen                                            Patrick J. Ruberry
      Sean P. Burke                                              Litchfield Cavo, LLP
      Mattingly Burke Cohen &                                    Chicago, Illinois
      Biederman LLP
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      EngineAir, Inc. and JMA Rail                               July 24, 2018
      Products, Inc.,                                            Court of Appeals Case No.
      Appellants-Plaintiffs,                                     36A01-1709-CT-2177
                                                                 Appeal from the
              v.                                                 Jackson Superior Court
                                                                 The Honorable
      Centra Credit Union,                                       Bruce Markel III, Judge
      Appellee-Defendant.                                        Trial Court Cause No.
                                                                 36D01-1704-CT-13



      Kirsch, Judge.


[1]   After Angela Kincaid (“Kincaid”), an employee working for both EngineAir,

      Inc. (“EngineAir”) and JMA Rail Products, Inc. (“JMA”), was convicted of

      having embezzled more than $500,000 from the companies’ bank accounts, the




      Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018                           Page 1 of 25
      companies sued Kincaid’s depositary bank,1 Centra Credit Union (“Centra

      Credit”). Citing to Indiana’s version of the Uniform Commercial Code

      (“UCC” or “the Act”) and common law negligence, the companies argued that

      Centra Credit “failed to act with ordinary care when it cashed over 105

      fraudulent checks written by Kincaid on EngineAir’s, JMA’s, and other related

      entities’ accounts.” Appellants’ App. Vol. 2 at 10. On Centra Credit’s motion,

      the trial court dismissed the companies’ complaint for failure to state a claim

      pursuant to Indiana Trial Rule 12(B)(6).


[2]   The companies raise one issue on appeal, which we restate as: Whether the

      trial court erred when it dismissed the companies’ complaint for failure to state

      a claim under Indiana Trial Rule 12(B)(6) after concluding that (1) Centra

      Credit, as the depositary bank, owed the companies, as drawers, no duty of care

      as a matter of law for the loss the companies sustained when Kincaid deposited

      checks that she had stolen from the companies, made out to herself as payee,

      and, on which she had forged the signature of the companies’ president;2 (2) the

      UCC warranties created no warranty or statutory obligation from Centra Credit

      to the companies; and (3) Centra Credit’s failure to report Kincaid’s extreme

      banking activity as suspicious did not constitute a breach of duty.




      1
        “Depositary bank” means “the first bank to take an item even though it is also the payor bank, unless the
      item is presented for immediate payment over the counter.” Ind. Code § 26-1-4-105.
      2
        It is not clear whether the Companies had the same president; however, in their complaint, the Companies
      refer to the “Plaintiffs’ president’s signature.” Appellants’ App. at 12.

      Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018                          Page 2 of 25
[3]   We affirm.


                                  Facts and Procedural History
[4]   EngineAir and JMA (together, “the Companies”), acting as “sister”

      corporations and located in Jackson County, Indiana, are small, family-owned

      and-operated manufacturing and supply businesses, with similar ownership and

      management structures. Appellants’ Br. at 6. In their complaint, the Companies

      pleaded the following facts. In the first quarter of 2013, the Companies and

      JMA Railroad Supply Company (“JMA Supply”), a related corporation,

      collectively hired Kincaid as their bookkeeper and internal accountant. In that

      position, Kincaid was responsible for billing, accounts payable, accounts

      receivable, handling bank deposits, as well as other “related financial matters.”

      Appellants’ App. Vol. 2 at 12.


[5]   Within one month of being hired, Kincaid began embezzling money from the

      Companies and from JMA Supply by “cut[ting] checks to herself while

      fraudulently forging the [Companies’] president’s signature.” Id. Kincaid

      would then deposit those checks into her personal bank account with Centra

      Credit. “Kincaid started her fraudulent scheme slowly to evade detection.”

      Appellants’ Br. at 7. For example, in September, October, and December 2013,

      she fraudulently deposited a total of four checks drawn on JMA Supply’s

      account, totaling $16,712. We note that any claims relating to these checks are

      time barred, and therefore, JMA Supply is not a party to this action. Id.




      Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018   Page 3 of 25
[6]   Kincaid’s fraudulent activity increased rapidly, and in May 2014, she deposited

      into her Centra Credit account seven checks totaling $13,950, all of which were

      written against JMA’s account. Appellants’ App. Vol 2 at 12. Beginning in

      August 2014, Kincaid began depositing numerous forged checks into her

      Centra Credit account on an increasingly frequent basis. For instance, in

      August 2014, Kincaid deposited seven checks, dated August 7, 8, 13, 20, 22,

      26[,] and 26, totaling $25,300. Id. Thereafter, the rate and amount of

      fraudulent checks continued to increase. Id.


[7]   By April 2015, the last full month before Kincaid’s illegal activity was

      discovered, she deposited one or more checks on April 1, 2, 7, 8, 13, 15, 16, 17,

      21, 24, 27, 28, and 30. Together, these checks totaled $116,300. Id. at 12-13.

      All of those checks were drawn on EngineAir’s account and deposited into

      Kincaid’s personal account at Centra Credit. In the ten months leading up to

      May 2015, Kincaid deposited more than 100 fraudulent EngineAir checks. Id.

      at 13. In total, Kincaid stole more than $540,450 from the Companies, all of

      which was in the form of checks that Kincaid deposited into her personal

      account with Centra Credit and then withdrew as cash immediately after each

      check had cleared. Id. at 10, 13.


[8]   On May 18, 2015, in the routine course of transferring funds to pay a vendor,

      EngineAir’s president learned that EngineAir’s checking account had a balance

      of only $2,000; the financial records prepared by Kincaid reflected a balance of

      $178,000. Id. at 14. EngineAir evaluated the account and discovered that

      Kincaid had been embezzling money from the Companies’ accounts. Kincaid

      Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018   Page 4 of 25
       was charged, pleaded guilty, and was sentenced to forty-one months in federal

       prison.


[9]    On April 11, 2017, the Companies filed their complaint seeking damages from

       Centra Credit for the bank’s negligence in having accepted and deposited

       dozens of fraudulent checks and allowing Kincaid to withdraw those funds

       from her Centra Credit account.3 Appellants’ App. Vol. 2 at 11. The Companies

       sought damages under the UCC and common law negligence. Id. at 10-17.


[10]   On June 2, 2017, Centra Credit filed a Trial Rule 12(B)(6) motion to dismiss for

       failure to state a claim. Centra Credit argued that: (1) the Companies could not

       proceed, since under the general rule, a bank does not owe a non-customer a

       duty of care; (2) negligence cases, generally, are preempted by the UCC; (3)

       under the UCC, Centra Credit owes no duty to the Companies, and (4)

       recovery of monetary damages by the Companies was precluded by the

       economic loss doctrine.4 Id. at 23-32.


[11]   The Companies responded, arguing that Centra Credit owed the Companies a

       duty of care pursuant to the UCC, particularly, Indiana Code section 26-1-3.1-




       3
        The Companies seek to recover damages arising from a multitude of fraudulent checks, some of which may
       be barred by the statute of limitations. Because this is a review of the grant of a motion to dismiss, we need
       only determine whether the Companies’ complaint states a claim with respect to one of the checks.
       4
         During the August 2017 hearing on Centra Credit’s motion to dismiss, both parties addressed the question
       of whether the economic loss doctrine prevented the Companies from bringing this suit. The trial court’s
       Order, however, made no reference to the economic loss doctrine, and the parties have not raised that issue
       on appeal. Furthermore, finding, as we do, that the Companies’ complaint was properly dismissed for failure
       to state a claim, we need not address this issue.

       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018                          Page 5 of 25
       405, the UCC’s warranty provisions, and Indiana negligence law generally. Id.

       at 63-77. The Companies argued that, even if Indiana were to adopt the general

       rule that banks do not owe a non-customer a duty of care, “an award of

       damages, is appropriate under the ‘exceptional circumstances’ of this case as

       pled in the complaint because [Centra Credit] accepted numerous checks

       totaling a large amount while not following its own internal policies or federal

       regulations.” Id. at 64. The trial court heard argument on August 7, 2017, and

       on August 23, 2017, it entered an Order (the “Order”) granting Centra Credit’s

       motion to dismiss. The Companies now appeal.


                                       Discussion and Decision
[12]   We review de novo a trial court’s grant or denial of a motion to dismiss for

       failure to state a claim, pursuant to Trial Rule 12(B)(6), giving no deference to

       the trial court’s decision. Babes Showclub v. Lair, 918 N.E.2d 308, 310 (Ind.

       2009). Such a motion tests the legal sufficiency of the plaintiff’s claim, not the

       facts supporting it. Thornton v. State, 43 N.E.3d 585, 587 (Ind. 2015); Alford v.

       Johnson Cnty. Comm’rs, 92 N.E.3d 653, 659 (Ind. Ct. App. 2017).


               Inasmuch as motions to dismiss are not favored by the law, they
               are properly granted only “when the allegations present no
               possible set of facts upon which the complainant can recover.”
               Mart v. Hess, 703 N.E.2d 190, 193 (Ind. Ct. App. 1998). Put
               another way, a dismissal under Rule 12(B)(6) will not be affirmed
               “unless it is apparent that the facts alleged in the challenged
               pleading are incapable of supporting relief under any set of
               circumstances.” Couch v. Hamilton Cnty., 609 N.E.2d 39, 41 (Ind.
               Ct. App. 1993).


       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018   Page 6 of 25
       Magic Circle Corp. v. Crowe Horwath, LLP, 72 N.E.3d 919, 922-23 (Ind. Ct. App.

       2017) (quoting City of E. Chicago, Ind. v. E. Chicago Second Century, Inc., 908

       N.E.2d 611, 617 (Ind. 2009)). “In reviewing the complaint, we take the alleged

       facts to be true and consider the allegations in the light most favorable to the

       nonmoving party, drawing every reasonable inference in that party’s favor.”

       Hoosier Ins. Co. v. Riggs, 92 N.E.3d 685, 687 (Ind. Ct. App. 2018).


[13]   The Companies filed their complaint seeking damages from Centra Credit “for

       Centra’s negligence in accepting, cashing[,] and providing funds to [the

       Companies’] employee and Centra’s customer[,] Angela Kincaid. [The

       Companies] sought damages pursuant to common law negligence and [UCC]

       provisions.” Appellants’ Br. at 5. The trial court, having heard the arguments of

       counsel and having reviewed the law, dismissed the Companies’ complaint

       pursuant to Trial Rule 12(B)(6) concluding:


               1. Indiana has not established a duty of care between a mere
               collecting bank and the customer of a payor bank;


               2. There is no statutory law in Indiana that creates a warranty or
               other statutory obligation from the Defendant collecting bank to
               the Plaintiffs, individually or as customers of their bank, the
               payor bank; and


               3. Any failure of the Defendant bank to act in a commercially
               reasonable manner or to report “Suspicious Activity” to federal
               authorities is not a breach of any established duty to the
               Plaintiffs.


       Appellants’ App. Vol. 2 at 8.

       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018    Page 7 of 25
                                                     Duty of Care
[14]   The Companies first contend that the trial court erred in dismissing their

       complaint because, contrary to the trial court’s conclusion, a duty of care can

       exist between a depositary bank and a non-customer drawer. The Companies

       argue that “the question of whether a bank may owe a non-customer a duty has

       been established,” and each court having addressed that issue “has found or

       presumed that such a duty may exist.” Appellants’ Br. at 13 (citing Auto-Owners

       Ins. Co. v. Bank One, 879 N.E.2d 1086 (Ind. 2008)).5 While a depositary bank

       may, under certain circumstances, owe a duty of care to a non-customer,

       because our review is de novo, the question before this court is whether Centra

       Credit owed a duty of care to the Companies.


[15]   In their complaint, the Companies asserted that pursuant to established Indiana

       law and the UCC, Centra Credit owed the Companies “a duty to exercise

       ordinary care in inspecting, negotiating and making a reasonable inquiry with

       respect to the checks submitted by Kincaid.” Appellants’ App. at 14.

       Specifically, the Companies claimed that: (1) Centra Credit failed to exercise

       reasonable care in paying or taking the instruments at issue; (2) it was not

       commercially reasonable for Centra Credit to take the checks at issue; (3)

       Kincaid’s conduct should have raised red flags; (4) Kincaid’s activity was so

       extreme, it should have triggered Centra Credit’s Suspicious Activity Reporting




       5
           We discuss Auto-Owners Ins. Co. v. Bank One, 879 N.E.2d 1086 (Ind. 2008) later in our decision.


       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018                              Page 8 of 25
       requirements under applicable federal law; (5) Centra Credit knew, suspected,

       or should have known that the deposits and withdrawals were designed to

       conceal unlawful activity; (6) Centra Credit violated its duty by failing to

       exercise ordinary care when taking or paying the checks; and (7) the Companies

       were injured by that breach of duty. Appellants’ App. at 14-16. The Companies

       cited to no specific UCC sections in their complaint; however, in their response

       to Centra Credit’s motion to dismiss, the Companies argued that Centra Credit

       owed them a duty of care through Indiana Code section 26-1-3.1-405 and the

       UCC’s warranty provisions. Appellants’ Br. at 5.


[16]   The Companies suggest that common law negligence and the UCC operate

       jointly and, therefore, the Companies can bring a common law negligence

       action in addition to any UCC claim. Centra Credit counters that the UCC

       “preempted negligence claims generally,” and, since the Companies’ claims fall

       within the provisions of the UCC, any common law claim arising from Centra

       Credit’s conduct is “displaced.” Appellee’s Br. at 8. Accordingly, we begin by

       discussing the general applicability of the UCC and its interplay with common

       law negligence.


[17]   The Indiana General Assembly adopted the UCC with the intent that the Act

       be “liberally construed and applied to promote its underlying purposes and

       policies,” which include: (1) to simplify, clarify, and modernize the laws

       governing commercial transactions; (2) to permit continued expansion of

       commercial practices through custom, usage, and party agreements; and (3) to

       make uniform the law among the various jurisdictions. Ind. Code § 26-1-1-

       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018   Page 9 of 25
       102(1), (2).6 Comment 1 to UCC Section 1-102 explains that the Act “is drawn

       to provide flexibility” so that it “will provide its own machinery for expansion

       of commercial practices.” 7 In other words, the UCC “is intended to make it

       possible for the law embodied in [that] Act to be developed by the courts in the

       light of unforeseen and new circumstances and practices.” Ind. Code § 26-1-1-

       102, cmt. 1.


[18]   The drafters of the UCC determined that “Negotiable Instruments” and “Bank

       Deposits and Collections” were proper subjects for commercial uniformity, and

       the Indiana General Assembly adopted those laws into what are now Indiana

       Code chapter 26-1-3.1 (“UCC Article 3.1”) and Indiana Code chapter 26-1-4

       (“UCC Article 4”), respectively. A check is subject to provisions contained in

       UCC Article 3.1. Ind. Code § 26-1-3.1-102(a), -104. Once deposited and

       transferred through the banking system for payment, a check is also subject to




       6
        In this decision, all citations to the Indiana Code are found in Title 26 and Article 1. For ease of reference,
       we will shorten any citation that appears in a sentence from Indiana Code section 26-1-1-102 to UCC Section
       1-102.
       7
           In the Indiana Practice Series, the Author’s Comments to UCC Section 1-101 provide,

                Indiana did not adopt the Official Comments to the UCC as part of the 2007 revisions to its
                version of the UCC. Nevertheless, some courts look to the Official Comments to the UCC for
                guidance in applying and interpreting Indiana’s version of the UCC. See Collins v. Pfizer, 2009
                WL 126913, *2 (S.D. Ind. Jan. 20, 2009). “In general, Indiana courts treat the official
                comments as an authoritative guide to the UCC.” See also In re Scott, 427 B.R. 123, 71 U.C.C.
                Rep. Serv. 2d 314 (Bankr. S.D. Ind. 2010) (discussing persuasive authority of Official
                Comments to UCC notwithstanding that Indiana did not adopt them as part of its version of the
                UCC).
       7 Ind. Prac., UCC Forms Annotated § 26-1-1-101 (3d ed.))

       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018                          Page 10 of 25
       UCC Article 4. The legislature has determined that when the two chapters

       conflict, Article 4 governs. Ind. Code § 26-1-3.1-102(b).


[19]   Since UCC Article 3.1 and Article 4 address complicated relationships and

       include specific terms of art, an introduction to the specific nomenclature is

       helpful. A “negotiable instrument” is an unconditional promise to pay a fixed

       amount of money, payable to bearer, on demand, and with no other promises

       from the drawer. Ind. Code § 26-1-3.1-104(a). The definition of “check”

       includes “a draft, other than a documentary draft, payable on demand and

       drawn on a bank.” Ind. Code § 26-1-3.1-104(f). The checks at issue were

       negotiable instruments. The “drawer” is a person identified in a check as the

       one ordering the payment; Kincaid’s use of the Companies’ checks made the

       Companies the drawers. Ind. Code § 26-1-3.1-103(a)(5). “Drawee” means a

       person ordered in a draft to make a payment; here, the Companies’ bank was

       the drawee or payor bank.8 Ind. Code § 26-1-3.1-103(a)(4). An “endorsement

       is the signature, other than that of a signer as maker, drawer, or acceptor, that

       alone or accompanied by other words is made on an instrument for the purpose

       of negotiating the instrument.” Ind. Code § 26-1-3.1-204. “Endorser” means

       the person who makes the endorsement. Ind. Code § 26-1-3.1-204(b). Kincaid

       became the endorser when she endorsed the back of each fraudulent check to




       8
           “Payor bank” means “a bank that is the drawee of the draft.” Ind. Code § 26-1-4-105(3).


       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018                      Page 11 of 25
       deposit it into her Centra Credit account; and, once Kincaid deposited the

       forged checks, Centra Credit became the depositary bank.


[20]   A check typically involves three parties: the drawer, on whose account the

       check is drawn; the payee, to whose order the check is made out; and the

       drawee or payor bank, from which the drawer’s check is to be paid. In form, a

       check is an order to the drawee bank to pay the face amount of the check to the

       payee. After receiving the check, the payee typically endorses it on the back in

       the payee’s own name and then deposits it into the payee’s account at the

       depositary bank. The depositary bank credits the check to the payee’s account

       and sends the check through the check clearing system to the drawee bank for

       payment, and if it is properly paid, the drawee then deducts the payment from

       the drawer’s account. Any bank through which the check passes in the clearing

       process is an “intermediary bank.” Ind. Code § 26-1-4-105(4). Any bank

       handling the check for collection, including the depositary bank, but excluding

       the payor bank, is referred to as a “collecting bank.” Ind. Code § 26-1-4-105(5).


[21]   Because (1) not every check or collection scenario falls within the coverage of

       the UCC and (2) “the proper construction of the [UCC] requires that its

       interpretation and application be limited to its reason,” UCC Section 1-102,

       comment 1, the drafters included Section 1-103, which provides,


               Unless displaced by the particular provisions of [the UCC], the
               principles of law and equity, including the law merchant and the
               law relative to capacity to contract, principal and agent, estoppel,
               fraud, misrepresentation, duress, coercion, mistake, bankruptcy,


       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018   Page 12 of 25
               or other validating or invalidating cause, shall supplement the
               provisions of IC 26-1.


       Ind. Code § 26-1-1-103. That being said, where the UCC addresses a specific

       commercial practice, the UCC displaces the common law. Cf. Farmers Loan &

       Tr. Co. v. Letsinger, 652 N.E.2d 63, 65 (Ind. 1995) (“Because no particular

       provision of the UCC governs the bank’s claim on the guaranty, Indiana

       common law and the Indiana law of equity control.”). To determine whether

       the common law has been displaced in the instant case, we consider the UCC

       scheme and common law duty as applied to the parties before us.


[22]   The Companies’ complaint is premised primarily on a theory that Centra Credit

       owed the Companies a duty of care and breached that duty when it did not alert

       the Companies about Kincaid’s unusual deposits and withdrawals. To recover

       under a theory of negligence, a plaintiff must prove three elements:


               (1) a duty on the part of the defendant to conform his conduct to
               a standard of care arising from his relationship with the plaintiff,
               (2) a failure of the defendant to conform his conduct to the
               requisite standard of care required by the relationship, and (3) an
               injury to the plaintiff proximately caused by the breach.


       Harper v. Hippensteel, 994 N.E.2d 1233, 1237 (Ind. Ct. App. 2013) (quoting Webb

       v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991)). Before reaching the questions of

       breach and injury, we must consider the threshold matter of whether Centra

       Credit owed a duty to the Companies. Absent a duty, there can be no breach




       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018   Page 13 of 25
       and, therefore, no recovery in negligence. Williams v. Cingular Wireless, 809

       N.E.2d 473, 476 (Ind. Ct. App. 2004), trans. denied.


[23]   Whether a defendant owes a duty of care to a plaintiff is a question of law for

       the court to decide. N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind.

       2003); Williams, 809 N.E.2d at 476. In their brief, the Companies, claiming that

       Centra Credit owes them a common law duty, focus on the “three-part

       balancing test developed by [our Supreme Court].” Yost v. Wabash Coll., 3

       N.E.3d 509, 515 (Ind. 2014). Those factors are: (1) the relationship between

       the parties; (2) the reasonable foreseeability of the harm to the person injured;

       and (3) public policy concerns. Id.; Williams, 809 N.E.2d at 476.


                     Relationship between the Centra Credit and the Companies

[24]   The Companies’ entire argument regarding the relationship between the parties

       is as follows: “[T]he parties relationship[,] that of the drawer of a check and the

       depository bank, justifies a finding of duty, especially where, as here, the

       dismissed complaint alleges Centra Credit knew or should have known of the

       misconduct at issue and where special circumstances existed.” Appellants’ Br. at

       23. Our court has said, “A duty of reasonable care is ‘not, of course, owed to

       the world at large,’ but arises out of a relationship between the parties.” 9 Id.




       9
         We note that a duty can arise from a contractual relationship; however, here, the parties make no claim that
       a contractual relationship exists. See Harper v. Hippensteel, 994 N.E.2d 1233, 1237 (Ind. Ct. App. 2013) (“duty
       arises from the contractual relationship entered into between the doctor and patient”).

       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018                         Page 14 of 25
[25]   Indiana courts “have a long and continuous history of recognizing negligence

       actions for statutory violations.” Kho v. Pennington, 875 N.E.2d 208, 212 (Ind.

       2007). Citing to Section 3.1-405, the Companies claim that this section creates

       a duty, which allows them to sue Centra Credit. In support of that claim, the

       Companies cite to Auto-Owners Insurance Co. v. Bank One, 879 N.E.2d 1086,

       1089-90 (Ind. 2008), in which our Supreme Court, analyzing UCC Section 3.1-

       405, accepted that an employer could bring a cause of action, but found

       negligence in account opening was insufficient, by itself, to state a claim

       pursuant to UCC Section 3.1-405. Appellants’ App. at 5.


[26]   Section 3.1-405(b) provides:


               For the purpose of determining the rights and liabilities of a
               person who, in good faith, pays an instrument or takes it for
               value or for collection, if an employer entrusted an employee
               with responsibility with respect to the instrument and the
               employee or a person acting in concert with the employee makes a
               fraudulent endorsement of the instrument, the endorsement is
               effective as the endorsement of the person to whom the
               instrument is payable if it is made in the name of that person. If
               the person paying the instrument or taking it for value or for
               collection fails to exercise ordinary care in paying or taking the
               instrument and that failure substantially contributes to loss
               resulting from the fraud, the person bearing the loss may recover
               from the person failing to exercise ordinary care to the extent the
               person bearing the loss proves that the failure to exercise ordinary
               care substantially contributed to the loss.


       Ind. Code § 26-1-3.1-405 (emphasis added). The plain meaning of Section 3.1-

       405 is that it applies only to forged endorsements and not, like here, to forged


       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018    Page 15 of 25
       signatures. This interpretation is supported by Comment 1 UCC Section 3.1-

       405, which states:


               Section 3-405 is addressed to fraudulent indorsements[10] made by
               an employee with respect to instruments with respect to which
               the employer has given responsibility to the employee. . . . This
               section applies to instruments generally but normally the
               instrument will be a check. Section 3-405 adopts the principle
               that the risk of loss for fraudulent indorsements by employees who
               are entrusted with responsibility with respect to checks should fall
               on the employer rather than the bank that takes the check or pays
               it, if the bank was not negligent in the transaction. Section 3-405
               is based on the belief that the employer is in a far better position
               to avoid the loss by care in choosing employees, in supervising
               them, and in adopting other measures . . . .


       We find that Centra Credit owes no duty to the Companies arising under

       Section 3.1-405, and therefore no cause of action against Centra Credit arises

       under that section.


                                       Foreseeability and Public Policy

[27]   The Companies also contend that Centra Credit owed them a common law

       duty of care because it was foreseeable that a fraudulent transaction could result

       in loss for the Companies and because public policy demands it. Appellants’ Br.

       at 15-23. “The general stance of Articles 3 and 4 is to place losses for forged

       drawer’s signatures initially on the payor bank and for forged indorsements or




       10
         We note that the Indiana Code uses “endorsement,” and the comments use “indorsement.” We use these
       spellings interchangeably.

       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018                Page 16 of 25
       alterations on the first party to take the instrument after the theft.” A. Brooke

       Overby, Check Fraud in the Courts after the Revisions to U.C.C. Articles 3 and 4, 57

       Ala. L. Rev. 351, 361 (2005). Naturally, a person who commits forgery by

       means of a negotiable instrument should be responsible for any loss; however,

       “when the curtain rises on the last act, the wrongdoer will either be off the

       scene or insolvent.” 2 James J. White, Robert S. Summers, & Robert A.

       Hillman, Uniform Commercial Code § 19:10 (6th ed. 2013). Recognizing this

       principle, the drafters of the UCC contemplated the allocation of this loss.

       “The U.C.C. accomplishes this allocation through a rather complicated series

       of causes of action.” Overby, supra, at 361-62. “These actions are founded

       upon contract-based, warranty-based, and property-based provisions scattered

       throughout the Code.” Id. at 362.


[28]   As pertinent to this appeal, that allocation takes into consideration: (1) whether

       the fraudulent transaction involved an unauthorized signature, Ind. Code §§ 26-

       1-3.1-401, 3.1-402, Ind. Code § 26-1-3.1-403, or a fraudulent endorsement, Ind.

       Code § 26-1-3.1-405; (2) whether the loss occurred as the result of a transfer to a

       collecting bank, Ind. Code §§ 26-1-3.1-416, 4-207, or a presentment to a payor

       bank, Ind. Code §§ 26-1-3.1-417, 4-208; (3) whether a fraudulent endorsement

       was committed at the hand of the drawer’s employee who had access to the

       drawer’s checks, Ind. Code § 26-1-3.1-405, and (4) whether the drawer was

       negligent in duties owed, Ind. Code § 26-1-4-406. This complex scheme reveals

       that the drafters of the UCC considered both foreseeability and public policy

       when they drafted the Act.


       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018    Page 17 of 25
[29]   As a general rule, under the UCC a drawer is not liable on a negotiable

       instrument unless the person or his agent signed the instrument. Ind. Code §

       26-1-3.1-401, -402. The corollary to that rule is that a bank has the authority to

       “charge against the account of a customer an item that is properly payable from

       that account . . . .” Ind. Code § 26-1-4-401(a). “By implication, the section also

       tells when a bank ‘may not’ charge the account.” White & Summers, supra, §

       19.3. “An item is properly payable if it is authorized by the customer and is in

       accordance with any agreement between the customer and the bank.” Id. A

       bank does not “properly pay” over a forgery. Id. If, like here, a drawee bank

       does not discover the forged signature, but makes a final payment on the check,

       the drawee, in the absence of a drawer’s negligence, may not charge the

       drawer’s account and, therefore, will bear the loss. Kincaid forged the signature

       of the Companies’ president, and the Companies did not authorize the payment

       of the forged checks, so without more, the Companies would not have been

       liable for their losses.


[30]   Under circumstances, like here, where the drawee pays over a forged signature

       and withdraws the money from the drawer’s account, the UCC contemplates

       that the drawer will have an action against the drawee bank for breach of the

       customer’s contract with the bank or a statutory claim under UCC Section 4-

       401.11 Id. Even so, the UCC “hold[s] each negligent party liable for its




       11
          Prior to the UCC’s 1990 amendments, “some courts found drawers of stolen checks to be proper plaintiffs
       in conversion actions”; however, “[w]ith the 1990 addition of section 3-420, the conversion action is no
       longer available to drawers of stolen checks or to payees who never had actual or constructive possession of

       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018                        Page 18 of 25
       substantial contribution to the loss.” White & Summers, supra, §19.14. “This

       allocation of liability based on comparative negligence was incorporated into

       the [Act] as part of the 1990 amendments to Articles 3[.1] and 4.” Id.


[31]   That allocation occurs, in part, through UCC Section 4-406, which requires a

       bank to make “available to a customer a statement of account showing payment

       of items for the account available to a customer” sufficient for the customer to

       identify the items paid. Ind. Code § 26-1-4-406(a). Under UCC Section 4-

       406(c), the customer must then


               exercise reasonable promptness in examining the statement or
               the items to determine whether any payment was not authorized
               because of an alteration of an item or because a purported
               signature by or on behalf of the customer was not authorized. If,
               based on the statement or items provided, the customer should
               reasonably have discovered the unauthorized payment, the
               customer must promptly notify the bank of the relevant facts.


       Ind. Code § 26-1-4-406(c). If the bank proves that the customer failed, with

       respect to an item, to comply with the duties imposed on the customer by

       subsection (c), “the customer is precluded from asserting against the bank: . . .

       the customer’s unauthorized signature . . . by the same wrongdoer on any other

       item paid in good faith by the bank if the payment was made before the bank

       received notice from the customer of the unauthorized signature . . . and after



       stolen instruments bearing their names.” UCC Section 3.1-420(a), in pertinent part provides, “An action for
       conversion of an instrument may not be brought by: (1) the issuer or acceptor of the instrument; or (2) a
       payee or endorsee who did not receive delivery of the instrument either directly or through delivery to an
       agent or a co-payee.” Ind. Code § 26-1-3.1-420.

       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018                       Page 19 of 25
       the customer had been afforded a reasonable period of time, not exceeding

       thirty (30) days, in which to examine the item or statement of account and

       notify the bank.” Ind. Code § 26-1-4-406(d)(2).


[32]   As Centra Credit correctly notes, imposing a duty of reasonable care on Centra

       Credit, as a depositary bank, to monitor checks with forged signatures, would

       place Centra Credit in the position of being an insurer for non-customers

       unfortunate enough to hire thieves and embezzlers. Appellee’s Br. at 13.

       Furthermore, to recognize this putative duty between Centra Credit and the

       Companies “would ultimately undermine UCC Section 4-406, which places a

       duty on the account holder to “promptly report any unauthorized signature on

       a check or other financial instrument.” Appellee’s Br. at 13-14. The drafters of

       the UCC determined that the loss should be placed on the party best able to

       avoid it. The UCC’s provisions reflect that Centra Credit, as the depositary

       bank, was not in the best position to avoid this loss when the loss arose from the

       forged signature of the Companies’ president, a signature with which Centra

       Credit had no familiarity.


[33]   With the goal to simplify, clarify, and modernize the laws governing

       commercial transactions and allow continued expansion of commercial

       practices through custom and usage, the drafters of the UCC intended to bring

       this foreseeable fraudulent commercial transaction under the UCC.

       Accordingly, we conclude that the Companies have no claim of negligence at

       common law. Instead, as non-customers, their remedy, if any, must arise from

       the UCC.

       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018   Page 20 of 25
                            Transfer and Presentment Warranties
[34]   Without citation to a specific UCC section, the Companies also argue that they

       can pursue a claim against Centra Credit for breach of “the UCC’s warranty

       provisions.” Appellants’ Br. at 5. Chapter 3.1 and Chapter 4 include two types

       of warranties: “transfer” warranties and “presentment” warranties. The UCC

       addresses “transfer warranties” in Indiana Code sections 3.1-416 and 4-207 and

       “presentment warranties” in Indiana Code sections 3.1-417 and 4-208.12 These

       warranties “allow banks to shift all or part of the losses from forgery . . . to each

       other or to customers.” Melissa Waite, Check Fraud and the Common Law: At the

       Intersection of Negligence and the Uniform Commercial Code, 54 B.C. L. Rev. 2205,

       2214 (2013).


[35]   The Companies claim that Insurance Company of North America Insurance v.

       Purdue National Bank of Lafayette, 401 N.E.2d 708 (Ind. Ct. App. 1980)

       (hereafter, “N.A. Insurance”) is the “leading case on point” to support their

       claim that a depositary bank may owe a non-customer a duty of care.

       Appellants’ Br. at 13. Of importance to the Companies is the N.A. Insurance

       court’s reliance on the reasoning and holding set forth by the California

       Supreme Court in Sun ‘n Sand, Inc. v. United California Bank, 582 P.2d 920




       12
          Prior to the UCC’s 1990 amendments, the transfer warranties and presentment warranties were contained
       in one section, Section 3-417 for negotiable instruments and Section 4-207 for bank deposits and collection. 2
       James J. White, Robert S. Summers, & Robert A. Hillman, Uniform Commercial Code § 19:10 (6th ed. 2013).
       As part of the amendment, and to help clarify what warranties were granted, the UCC drafters “divided
       ‘transfer’ warranties from ‘presentment’ warranties and [gave] each of them its own section in Article 3 and
       Article 4.” Id.

       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018                        Page 21 of 25
       (1978). Appellants’ Br. at 14. Sun ‘n Sand held that a drawer whose account was

       debited by his bank is a “payor” entitled to claim the benefits under the

       warranties of Sections 3-417 and 4-207, which at that time extended to “the

       payor bank or other payor who in good faith pays or accepts the item.” Ins. Co.

       of N. Am., 401 N.E.2d at 712 (citing Sun ‘n Sand, 582 P.2d at 928). Under the

       holdings in N.A. Insurance and Sun ‘n Sand, a drawer could maintain an action,

       under Sections 3-417 and 4-207, for breach of warranty against a collecting

       bank. Sun ‘n Sand, 582 P.2d at 928-29.


[36]   In 1990, however, the drafters of the UCC amended Sections 3-417 and 4-207,

       removing the “payor” language upon which the California Supreme Court

       relied and, in so doing, expressly rejected the reasoning and holding of Sun ‘n

       Sand.13 Comment 2 to Section 3.1-417 clearly states,


                There is no warranty made to the drawer under subsection (a)
                when presentment is made to the drawee. Warranty to the
                drawer is governed by subsection (d) and that applies only when
                presentment for payment is made to the drawer with respect to a
                dishonored draft. In Sun ‘n Sand . . . , the court held that under
                former Section 3-417(1) a warranty was made to the drawer of a
                check when the check was presented to the drawee for payment.
                The result in that case is rejected.




       13
          N.A. Insurance was superseded by statute as stated in Conder v. Union Planters Bank, N.A., 384 F.3d 397, 399
       (7th Cir. 2004). Likewise, Sun ‘n Sand was superseded by statute as stated in Bhaskar v. Farmers & Merchants
       Bank, 2017 WL 3381390, at *1 (Cal. Ct. App. Aug. 7, 2017).

       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018                          Page 22 of 25
[37]   Because the Sun ‘n Sand holding was rejected by the 1990 amendment, so too

       was the result in N.A. Insurance. The Companies have no causes of action

       against Centra Credit for breach of warranty under the now superseded

       reasoning in N.A. Insurance.


                     Bank Secrecy Act and Suspicious Activity Report
[38]   The Companies contend that Centra Credit’s failure to comply with the

       reporting requirements of the Bank Secrecy Act (“the BSA”), 31 U.S.C. §§

       5311-5330 and 31 C.F.R. Chapter X, and Suspicious Activity Reports (“SARs)14

       resulted in loss to the Companies because, had those reports been filed, the

       Companies could have stopped Kincaid’s embezzlement sooner. Appellants’ Br.

       at 10-11, 22. Underlying this argument is the Companies’ assumption that the

       Companies are parties who should benefit from those federally mandated

       requirements of the BSA and, therefore, had a claim against Centra Credit for

       breaching its duty to the Companies when Centra Credit did not file the SARs

       to report Kincaid’s “extreme” banking activity. Appellants’ Br. at 10.


[39]   While we find no discussion of this issue in Indiana law, courts that have

       considered the question have found that the BSA does not create or authorize a

       private right of action. B.E.L.T., Inc. v. Wachovia Corp., 403 F.3d 474, 476 (7th

       Cir. 2005) (regulation requiring banks to notify Treasury Department of known

       or suspected criminal violation does not create private action for damages);




       14
            The Companies did not provide a specific citation for the SARs.


       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018   Page 23 of 25
       AmSouth. Bank v. Dale, 386 F.3d 763, 777 (6th Cir. 2004) (the BSA does not

       create a private right of action); Ventura v. Cent. Bank, 515 S.W.3d 680, 682-83

       (Ky. Ct. App. 2017) (“[T]he BSA provides financial institutions . . . immunity

       under its safe harbor provision from lawsuits based on the financial institutions’

       report or disclosure of suspicious activity. 31 U.S.C. § 5318(g)(3)(A).”);

       Marchak v. JPMorgan Chase & Co., 2016 WL 3911926, at *3 (E.D.N.Y. July 15,

       2016)15 (“The BSA does not authorize a private right of action.”); Grad v.

       Associated Bank N.A., 801 N.W.2d 349, 2011 WL 2184335 (Wis. Ct. App. 2011)

       (no private right of action created by BSA); El Camino Res., Ltd. v. Huntington

       Nat’l Bank, 722 F. Supp. 2d 875, 923 (W.D. Mich. 2010) (BSA does not create

       private cause of action), aff’d by, El Camino Res. Ltd. v. Huntington Nat. Bank, 712

       F.3d 917, 919 (6th Cir. 2013) (BSA does not create private cause of action);

       Hannien v. Fedoravitch, 583 F.Supp.2d 322, 326 (D. Conn. 2008) (holding that

       neither the Patriot Act nor the BSA authorizes a private right of action).

       Because there can be no private right of action for a violation of the BSA and its

       SARs reporting requirements, Centra Credit’s failure, if any, to file such reports

       would not support the Companies’ cause of action.


[40]   We find that under the facts of this case, the UCC has displaced any cause of

       action that the Companies may have against Centra Credit. Because the

       Companies have alleged no theory under which Centra Credit could be liable



       15
          “While not binding on Indiana courts, we observe that the Federal Rules of Appellate Procedure permit
       citation to unpublished opinions issued after January 1, 2007. FRAP 32.1(a).” Triplett v. USX Corp., 893
       N.E.2d 1107, 1121 n.8 (Ind. Ct. App. 2008), trans. denied.

       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018                      Page 24 of 25
       for the loss the Companies sustained from Kincaid’s forged checks, we affirm

       the trial court’s grant of Centra Credit’s motion to dismiss for failure to state a

       claim.16


[41]   Affirmed.


       Baker, J., and Bradford, J., concur.




       16
          In their Reply Brief, the Companies raise for the first time the argument that the “UCC does not bar
       Plaintiffs’ right to seek relief for Centra [Credit]’s aiding and abetting of intentional torts, fraudulent
       conduct[,] and breaches of fiduciary duty.” Appellants’ Reply Br. at 4. “No new issues shall be raised in the
       reply brief.” Ind. Appellate Rule 46(C). “The law is well settled that grounds for error may only be framed
       in an appellant’s initial brief and if addressed for the first time in the reply brief, they are waived.” Monroe
       Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005); see Crossmann Cmty., Inc. v. Dean, 767
       N.E.2d 1035, 1044 (Ind. Ct. App. 2002) (issues raised for the first time in a reply brief are deemed waived)).
       Accordingly, this issue is waived.

       Court of Appeals of Indiana | Opinion 36A01-1709-CT-2177 | July 24, 2018                            Page 25 of 25
