Rel: 09/30/2014




Notice: This opinion is subject to formal revision before publication in the advance
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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1130040
                             ____________________

                        Troy Bank and Trust Company

                                           v.

                               The Citizens Bank

                    Appeal from Geneva Circuit Court
                              (CV-11-0049)



PARKER, Justice.

      Troy Bank and Trust Company ("Troy Bank") appeals a

summary      judgment      entered      in      favor   of   The    Citizens       Bank

("Citizens Bank") by the Geneva Circuit Court ("the circuit
1130040

court").     We reverse the circuit court's judgment and remand

the cause.

                   Facts and Procedural History

    In its order entering a summary judgment in favor of

Citizens Bank, the circuit court set forth the following

relevant, undisputed facts:

         "1. On 12/10/09 Ronnie Gilley Properties, LLC,
    ('Gilley' hereinafter) issued a check in the amount
    of $100,000.00 payable to Cile Way Properties, LLC,
    ('Cile' hereinafter). The check was drawn on the
    account held by Gilley at Troy Bank.

         "2. On 12/16/09, Cile deposited the check to its
    account at Citizens Bank.

         "3. Citizens Bank presented the check for
    payment through the Federal Reserve Board ('FRB'
    hereinafter) and mis-encoded/under-encoded[1] the
    amount of $1000.00 instead of $100,000.00.

         "4. On the date [the check was] presented to
    Troy Bank[,] Gilley's account[,] which contained a
    balance of $199,083.39[,] was debited $1000.00

    1
     Troy Bank provides        the   following    explanation   of
"encoding" in its brief:

         "'Encoding' refers to the process whereby a
    party (typically a depositary bank) puts information
    on a check (such as the amount of the check being
    deposited) using Magnetic Ink Character Recognition
    ('MICR'). The MICR line on a check can then be --
    and is -- read and processed electronically by other
    parties."

Troy Bank's brief, at p. 5 n.1.
                                2
1130040

    instead of $100,000.00 because of Citizens Bank's
    encoding error. Cile's account was credited $1000.00
    at Citizens Bank.

         "5. On 01/22/10 Citizens Bank discovered the
    mistake and sent an adjustment through the FRB for
    the under-encoded amount of $99,000.00.

         "6. Upon receipt of the adjustment notice, Troy
    Bank honored the notice and made final payment of
    $99,000.00 which was credited to Cile's account at
    Citizens Bank.[2]

         "7. Troy Bank never returned the item or sent
    written notice of dishonor to Citizens Bank.

         "8. On 03/17/10, Troy Bank sent a letter to
    Citizens Bank demanding payment in the amount of
    $98,436.43 for damages it claimed to have suffered
    as a result of the encoding error because Gilley's
    account held insufficient funds on the date final
    payment of the $99,000 was made."

    On April 20, 2011, Troy Bank sued Citizens Bank seeking

to recover damages Troy Bank claimed to have suffered as a

result of the encoding error made by Citizens Bank. Troy Bank

alleged   that   it   was   entitled   to   recover   damages   under

Alabama's check-encoding warranty, which is set forth in § 7-

4-209, Ala. Code 1975, and states, in pertinent part:


    2
      Troy Bank states in its brief, and Citizens Bank does not
dispute, that the Federal Reserve Bank, at which Troy Bank has
an account, paid Citizens Bank's adjustment notice immediately
upon receipt of the adjustment notice; payment of the
adjustment notice to Citizens Bank did not require Troy Bank
to take any action.
                                  3
1130040

         "(a) A person who encodes information on or with
    respect to an item after issue warrants to any
    subsequent collecting bank and to the payor bank or
    other payor that the information is correctly
    encoded. If the customer of a depositary bank
    encodes, that bank also makes the warranty.

          "....

         "(c) A person to whom warranties are made under
    this section and who took the item in good faith may
    recover from the warrantor as damages for breach of
    warranty an amount equal to the loss suffered as a
    result of the breach, plus expenses and loss of
    interest incurred as a result of the breach."

    On May 15, 2013, Citizens Bank filed a motion for a

summary judgment and a brief in support of its motion, which

it later amended.    Citizens Bank argued that it was not

strictly liable for its encoding error under § 7-4-209 but

that Troy Bank "had an obligation to mitigate its damages and

attempt to avoid loss altogether. [Troy Bank] failed to do

this when it sent no written notice of dishonor or nonpayment

before its midnight deadline and it allowed final payment to

be made from [Gilley's] account ...."

    On August 6, 2013, Troy Bank filed a response to Citizens

Bank's summary-judgment motion.   Troy Bank argued:

    "Troy Bank had already become accountable for the
    full amount of the item when the under encoded check
    was initially presented for payment and paid in the
    amount for which it was under encoded. The issue no

                             4
1130040

    longer is whether Troy Bank is liable for the full
    amount of the check. Instead, the issue is whether
    Troy Bank was able to mitigate its losses by
    charging the drawer's account for the remaining
    balance of the check (and Citizens [Bank] does not
    dispute that there were not sufficient funds in the
    account to pay the $99,000.00 when Troy Bank
    received the adjustment notice), and if not, whether
    Troy Bank is entitled to shift the loss to the
    depositary bank (Citizens [Bank]) who under encoded
    the check. UCC § [7-]4-209 says Troy Bank is
    entitled to shift that loss."

    Troy Bank also noted that Citizens Bank's motion for a

summary judgment could have been "read to suggest that Federal

Operating Circular No. 3 preempts the Uniform Commercial Code

or imposes additional obligations on payor banks with respect

to under encoded checks." Troy Bank argued in its response to

Citizens Bank's summary-judgment motion:




                              5
1130040

    "[T]he scope provisions of the UCC[3] and Operating

    3
     This is a reference to § 7-4-103, Ala. Code 1975, which
provides:

         "(a) The effect of the provisions of this
    article may be varied by agreement, but the parties
    to   the   agreement  cannot   disclaim   a   bank's
    responsibility for its lack of good faith or failure
    to exercise ordinary care or limit the measure of
    damages for the lack or failure. However, the
    parties may determine by agreement the standards by
    which the bank's responsibility is to be measured if
    those standards are not manifestly unreasonable.

         "(b) Federal Reserve regulations and operating
    circulars, clearing-house rules, and the like have
    the effect of agreements under subsection (a),
    whether or not specifically assented to by all
    parties interested in items handled.

         "(c) Action or non-action approved by this
    article or pursuant to Federal Reserve regulations
    or operating circulars is the exercise of ordinary
    care and, in the absence of special instructions,
    action or non-action consistent with clearing-house
    rules and the like or with a general banking usage
    not disapproved by this article, is prima facie the
    exercise of ordinary care.

         "(d) The specification or approval of certain
    procedures by this article is not disapproval of
    other procedures that may be reasonable under the
    circumstances.

         "(e) The measure of damages for failure to
    exercise ordinary care in handling an item is the
    amount of the item reduced by an amount that could
    not have been realized by the exercise of ordinary
    care. If there is also bad faith it includes any
    other damages the party suffered as a proximate
    consequence."
                             6
1130040

    Circular 3 make it clear that the operating
    procedure which allows the parties to resubmit items
    back through the Fed[eral Reserve Bank] when there
    has been an encoding error is not inconsistent with
    the ability of a bank to pursue a warranty claim
    against an encoding bank under ... § [7-]4-209.
    There is no inconsistency. The procedure for
    remitting items through the Fed[eral Reserve Bank]
    to correct errors operates in a narrow 'sphere' to
    provide a shorthand procedure for resolving issues
    where a check has been under encoded and funds
    remain available to pay the proper amount of the
    check. It is not intended to undo the effect of ...
    § [7-]4-209, which was adopted to place losses on
    the depositary bank that under encodes a check.
    Citizens [Bank's] use of the short-hand procedure in
    an effort to obtain payment of the additional
    $99,000.00 shortfall caused by its encoding error
    did not obligate Troy Bank to utilize that shorthand
    procedure to reject the payment request. There is
    nothing inconsistent with an expedited procedure for
    determining who holds the funds when there is a
    dispute and a separate mechanism under the UCC that
    determines the liability of the parties and resolves
    the matter in favor of Troy Bank."

Troy Bank also attached to its response the affidavit of Gayla

Kinney, an employee of Troy Bank with personal knowledge of

the facts and circumstances related to the encoding error made

by Citizens Bank, which had attached to it "documents relating

to the Federal Reserve Circular dealing with under encoded

items."   A page of Operating Circular 3 was attached to

Kinney's affidavit, which states, in pertinent part:

          "20.7 Underencoded item


                              7
1130040

         "A bank may request an adjustment based on a
    claim that the MICR encoded amount of a cash item or
    returned check is less than the true amount of the
    item, if the bank sent the item to us [a Federal
    Reserve Bank] and received settlement for it in the
    encoded amount. The request must be received by a
    Reserve Bank within six calendar months after the
    item was credited to the requesting bank, and must
    provide all information that the Reserve Banks
    require, including a photocopy of the front and back
    of the item that clearly shows the amount of the
    encoding error (words control over figures in
    determining the true amount of the item). The
    requesting bank's Administrative Reserve Bank will
    provisionally credit the bank in the amount of the
    difference between the encoded amount and the true
    amount of the item. A Reserve Bank will charge that
    amount[,] and send the documentation to, the bank to
    which the Reserve Bank presented or returned the
    item. However, the Administrative Reserve Bank
    reserves the right not to credit the requesting bank
    if a Reserve Bank is unable to charge the paying or
    depositary bank.

         "20.8 Revocation of Adjustments for Underencoded
    items

         "The requesting bank's Administrative Reserve
    Bank will revoke part or all of the credit given to
    the bank, and a Reserve Bank will recredit the
    paying or depositary bank, if a Reserve Bank
    receives a statement as provided below from the
    paying or depositary bank, within twenty banking
    days after the Reserve Bank charged the paying or
    depositary bank for the undercoding claim. The
    statement must be in a format we prescribe that is
    signed by an officer of the paying or depositary
    bank, and:

               "(a)  state   that  the   paying  or
          depositary bank had charged its customer
          for the encoded amount of the item and is

                              8
1130040

          unable to recover all or a specified
          portion of the difference between the
          encoded amount and the true amount of the
          item by charging the account of the
          customer, and

               "(b) request an adjustment in that
          specified amount, based on a claim of
          breach of warranty with respect to the
          encoding error."

Also attached to Kinney's affidavit was a "Claim of Damage Due

to Underencoding Adjustment" form, which, Kinney stated in her

affidavit, "is [a form] used in connection with underencoded

items and it states that a bank which suffered a loss due to

an encoding error has twenty (20) banking days to submit a

claim through the Federal Reserve system."      The pertinent

portion of the form reads:

         "This form must be received by the Reserve Bank
    within 20 banking days after the date the Reserve
    Bank sent the documentation to support the encoding
    error charge. The advice of charge must accompany
    the form. Failure to provide all information will
    result in the claim being rejected.

         "Although late responses will be rejected by the
    Reserve Bank, you may nonetheless be able to recover
    from the claimant, but you must deal directly with
    the claimant."

(Emphasis added.)




                              9
1130040

    On August 28, 2013, following a hearing, the circuit

court entered a summary judgment in favor of Citizens Bank,

stating:

         "Citizens Bank breached the encoding warrant[y]
    when it erroneously encoded the amount of $1000.00
    instead of $100,000.00. The erroneous amount was
    paid by Troy Bank from Gilley's account, received by
    Citizens Bank and deposited to Cile's account.
    Because the erroneous amount was less than the
    correct amount, and there was sufficient funds in
    Gilley's account to cover the erroneous amount, Troy
    Bank, at that point, had suffered no loss or
    damages. § 7-4-209(c)[, Ala. Code 1975,] provides 'A
    person to whom warranties are made under this
    section and who took the item in good faith may
    recover from the warrantor as damages for breach of
    warranty an amount equal to the loss suffered as a
    result of the breach plus expenses and loss of
    interest incurred as a result of the breach.' Under
    this provision for damages resulting from encoding
    error Citizens Bank was not liable to Troy Bank at
    that time. Troy Bank had taken the item in good
    faith and Citizens Bank had breached the warranty,
    but there was no damage because Gilley's account had
    sufficient funds to cover the under-encoding error.

         "To remedy the error Citizens Bank sent an
    adjustment notice through the Federal Reserve Bank
    Clearing House for the under-encoded amount of
    $99,000.00.

         "When Troy Bank received the adjustment notice
    it could have dishonored and refused final payment
    of the request because there were insufficient funds
    in Gilley's account. But, Troy Bank honored the
    request without objection. Troy Bank failed to
    confirm that the funds were available before
    honoring the notice or by acting before the midnight
    deadline which would have avoided (mitigated) its

                            10
1130040

    loss. Had it done so, the loss would have been
    Citizens Bank's loss caused by its encoding error.
    But, because Troy Bank did not refuse final payment
    and give written notice of dishonor before the
    midnight deadline, it is accountable for the loss
    under the provisions of § 7-4-301 and -302[, Ala.
    Code 1975].

         "There is no evidence that Troy Bank complied
    with the FRB [Federal Reserve Bank ('FRB')] Circular
    by filing the Claim of Damage Due to Underencoding
    Adjustment within 20 days as required or that the
    claim was filed at all. Therefore, the adjustment
    notice should have been treated no differently than
    and is subject to the same law and regulations as
    the initial transaction.

         "Troy Bank is not entitled to recover as a
    matter of law because it did not return the item or
    send written notice of dishonor before the midnight
    deadline. Troy Bank amply made final payment; it is
    strictly liable for the loss which means any issues
    of negligence are irrelevant. Citizens Bank's
    encoding error did not cause [Troy Bank's] loss.
    Troy Bank's loss was not a result of the breach as
    required by § 7-4-209. The $99,000 was deposited to
    Cile's account and Citizens Bank and Cile relied
    upon the finality of the transaction. Paraphrasing
    from Citizens Bank's conclusion to its brief, to
    permit Troy Bank to repudiate the payment would
    destroy the certainty which must pertain to
    commercial transactions if they are to remain useful
    to the business public. If this is not the case,
    when would Citizens Bank and Cile have known when
    they could have relied safely on the check being
    paid?

         "If this court is in error by holding that the
    adjustment notice had to be treated the same as the
    initial transaction by Troy Bank pursuant to §
    7-4-301 because the FRB policy was not complied
    with, the court holds, as a matter of law, that Troy

                            11
1130040

    Bank's loss was the direct result of its               own
    negligence and it is not entitled to recover.

         "Therefore, summary judgment is rendered in
    favor of Defendant, Citizens Bank."

Troy Bank appealed.

                       Standard of Review

    Troy Bank and Citizens Bank agree that the underlying

facts are not in dispute.     See Troy Bank's brief, at p. 9, and

Citizens Bank's brief, at p. 6.       This Court has held that when

"the underlying facts are not disputed and [the] appeal

focuses on the application of the law to those facts, there

can be no presumption of correctness accorded to the trial

court's ruling, and this Court must review that application of

the law de novo."     Beavers v. County of Walker, 645 So. 2d

1365, 1373 (Ala. 1994) (citing First Nat'l Bank of Mobile v.

Duckworth, 502 So. 2d 709 (Ala. 1987), and Barrett v. Odom,

May & DeBuys, 453 So. 2d 729 (Ala. 1984)).

                             Discussion

    This   case   involves   Alabama's    check-encoding   warranty

("the encoding warranty") set forth above.        Troy Bank argues

that the encoding warranty "makes clear that any party that

encodes a check warrants the correctness of that information


                                 12
1130040

and is liable for any loss due to an encoding error."     Troy

Bank's brief, at pp. 13-14. Troy Bank argues that the summary

judgment in favor of Citizens Bank was in error based on the

plain language of the encoding warranty.

    Initially, we must address the issue of which law applies

in this case.    In its brief, Citizens Bank agrees that it

breached the encoding warranty, but it argues that "binding

federal banking regulations and operating circulars" prevent

Troy Bank from recovering under the encoding warranty and,

contrary to the encoding warranty, shift liability to Troy

Bank.   Specifically, Citizens Bank argues that Regulation CC,

12 C.F.R. § 229 et seq., and Operating Circular No. 3 set

forth a claim procedure ("the claim procedure") that Troy Bank

failed to follow.     Citizens Bank argues that Troy Bank's

failure to follow the claim procedure rendered Troy Bank

strictly liable for any loss it suffered in relation to

Citizens Bank's encoding error.    Citizens Bank does not argue

that the encoding warranty in this case is preempted by the

claim procedure; rather, it argues that the claim procedure

complements the encoding warranty and, thus, must be followed

to recover damages under the encoding warranty.   We disagree.


                              13
1130040

    As set forth above, in drafting the form to be used to

initiate the claim procedure, the Federal Reserve Bank clearly

stated that the claim procedure was not the exclusive recovery

method for a bank that had suffered a loss due to an encoding

error made by another bank but expressly recognized that

recovery could be pursued by the bank that had suffered the

loss outside the claim procedure by dealing directly with the

misencoding bank.    In fact, as Troy Bank notes, Operating

Circular No. 3 states in subsection 20.1   that "[a] bank may

need to pursue other kinds of claims directly with another

bank or by making a legal claim rather than, or in addition

to, an adjustment request."   (Emphasis added.)   As Troy Bank

argues on appeal, it was not required to use the claim

procedure but, instead, chose to pursue recovery under the

encoding warranty.

    We note that § 7-4-103(a), Ala. Code 1975, states that

"[t]he effect of the provisions of this article may be varied

by agreement" and that § 7-4-103(b) states that "Federal

Reserve regulations and operating circulars ... have the

effect of agreements under subsection (a)."   However, § 7-4-

103 should not be read to obviate the encoding warranty.


                              14
1130040

Under § 7-4-103, it is only "when the customer uses the

system" that the customer, "in effect, agrees to use the

system's   rules."   5   Thomas    M.   Quinn,   Quinn's   Uniform

Commercial Code Commentary and Law Digest § 4-103[A][1] (rev.

2d ed. 2010) (emphasis added). Had Troy Bank pursued recovery

under the claim procedure, it would have been bound by the

applicable federal regulations.    As set forth above, however,

Troy Bank chose not to use the claim procedure but sought

recovery under the encoding warranty. Therefore, because Troy

Bank filed its action under § 7-4-209 and Citizens Bank has

failed to direct this Court's attention to any authority

indicating that the claim procedure was the exclusive method

of recovery available to Troy Bank, the encoding warranty

alone controls this case.4

    4
     We note that Citizens Bank also argues that Troy Bank's
claim under the encoding warranty is barred by a federal
statute of limitations set forth in 12 C.F.R. § 229.38(g):

    "Any action under this subpart may be brought in any
    United States district court, or in any other court
    of competent jurisdiction, and shall be brought
    within one year after the date of the occurrence of
    the violation involved."

Citizens Bank's argument is wrong for two reasons.

     First, as set forth above, Troy Bank filed this action
under § 7-4-209, not under 12 C.F.R. § 229 et seq. Therefore,
                              15
1130040

    Having determined that the encoding warranty is the

applicable law in this case, we now address the merits of the

parties' arguments concerning the encoding warranty.            First,

we note that there is no Alabama caselaw discussing the

encoding warranty, which was effective January 1, 1996, and

which was adopted directly from the 1990 official revisions to

Article 4 of the Uniform Commercial Code ("the UCC").               In

fact, we have not been able to find a case in any jurisdiction

in the United States applying UCC § 4-209.         Accordingly, some

general background information regarding the encoding warranty

is beneficial to our discussion, given the lack of caselaw

involving   some   of   the   issues   presented    in   this   case.

Concerning the encoding warranty generally:

         "A major impetus for amendment of Article 4 [of
    the UCC] was the desire to modernize its provisions
    to reflect the automated processing methods that


the one-year statute of limitations has no relevance or
applicability to this case.

     Second, Citizens Bank did not assert this affirmative
defense in the circuit court; thus, we cannot consider this
argument for the first time on appeal. Ameriquest Mortg. Co.
v. Bentley, 851 So. 2d 458, 465 (Ala. 2002)("This Court can
affirm the judgment of a trial court on a basis different from
the one on which it ruled, Smith v. Equifax, 537 So. 2d 463
(Ala. 1988), but the constraints of procedural due process
prevent us from extending that principle to a totally omitted
affirmative defense.").
                                 16
1130040

     were introduced shortly after Article 4 was
     originally promulgated. The use of Magnetic Ink
     Character Recognition (MICR) encoding and high-speed
     sorters and computers posed some issues that the
     codification based on manual processing simply did
     not address adequately. For example, the MICR
     information has to be encoded on a check, a task
     generally undertaken by the depository bank. Revised
     Article   4  fills   a   void   by  addressing   the
     consequences of misencoding."

William H. Lawrence, Changes in Check Collection and Access to

Funds: Regulation CC and Revised UCC Article 4, 61 J. Kan.

B.A. 26, 32-33 (July 1992).             Lawrence's Anderson on the

Uniform Commercial Code states that "U.C.C. § 4-209 [Rev.]

provides rules for determining which party will suffer the

loss resulting from payment of an erroneously encoded item.

It allocates the loss through the encoding warranties."                        7

Lary Lawrence, Lawrence's Anderson on the Uniform Commercial

Code § 4-209:5 (3d ed. 2007); see also James J. White & Robert

S.   Summers,   Uniform    Commercial         Code   §    20-6c.     (4th    ed.

1995)("[R]evised 4-209 ... gives a claim against the 'person

who encodes.'").

     However,   before     we   turn    our    attention      to     the   issue

whether   the   encoding    warranty      shifts         liability    for    the

encoding error from Troy Bank to Citizens Bank, we first

consider Troy Bank's liability for the full $100,000 amount of

                                   17
1130040

the check.     It is important to note that the parties agree

that Troy Bank became liable for the full $100,000 amount of

the check; the parties disagree, however, as to when Troy Bank

became liable for the full amount of the check.       The circuit

court     --   apparently   applying   the   "final-payment"   and

"midnight-deadline" rules set forth in §§ 7-4-215 and 7-4-301,

Ala. Code 1975, respectively (which are set forth below) --

determined that Troy Bank became liable for the full amount of

the check when the adjustment notice was paid and Troy Bank

failed to "return the [adjustment notice] or send written

notice of dishonor before the midnight deadline."        Citizens

Bank agrees with the circuit court's conclusion.        Troy Bank

argues that it became liable for the full amount of the check

at the time the check was presented to Troy Bank, and it paid

the underencoded amount and did not dishonor the check by its

midnight deadline.     For the reasons set forth below, we agree

with Troy Bank.

    Simply, "[f]inal payment occurs when a payor bank pays

the item or settles for the item and the time frame for

revoking that settlement has expired." Texas Stadium Corp. v.

Savings of America, 933 S.W.2d 616, 619 (Tex. App. 1996).


                                 18
1130040

Under Alabama law, § 7-4-215 sets forth the "final-payment

rule," which dictates when an item is finally paid.     Section

7-4-215 states, in pertinent part:

         "(a) An item is finally paid by a payor bank
    when the bank has first done any of the following:

              "(1) Paid the item in cash;

               "(2) Settled for the item without
          having a right to revoke the settlement
          under statute, clearing-house rule, or
          agreement; or

               "(3) Made a provisional settlement for
          the item and failed to revoke the
          settlement in the time and manner permitted
          by   statute,   clearing-house   rule,   or
          agreement.

         "(b) If provisional settlement for an item does
    not become final, the item is not finally paid."

However, § 7-4-215 must be read in conjunction with § 7-4-301,

which sets forth the "midnight-deadline rule":

         "(a) If a payor bank settles for a demand item
    other than a documentary draft presented otherwise
    than for immediate payment over the counter before
    midnight of the banking day of receipt, the payor
    bank may revoke the settlement and recover the
    settlement if, before it has made final payment and
    before its midnight deadline, it

              "(1) returns the item; or

               "(2) sends written notice of dishonor
          or nonpayment if the item is unavailable
          for return.

                              19
1130040


         "(b) If a demand item is received by a payor
    bank for credit on its books, it may return the item
    or send notice of dishonor and may revoke any credit
    given or recover the amount thereof withdrawn by its
    customer, if it acts within the time limit and in
    the manner specified in subsection (a).

         "(c) Unless previous notice of dishonor has been
    sent, an item is dishonored at the time when for
    purposes of dishonor it is returned or notice sent
    in accordance with this section.

          "(d) An item is returned:

               "(1) As to an item presented through
          a clearing house, when it is delivered to
          the presenting or last collecting bank or
          to the clearing house or is sent or
          delivered in accordance with clearing-house
          rules; or

               "(2) In all other cases, when it is
          sent or delivered to the bank's customer or
          transferor or pursuant to instructions."

Paragraph 3 of the Official Comment to § 7-4-301 explains the

relationship between § 7-4-215 and § 7-4-301:

         "3. The relationship of Section 4-301(a) to
    final settlement and final payment under Section
    4-215 is illustrated by the following case.
    Depositary Bank sends by mail an item to Payor Bank
    with instructions to settle by remitting a teller's
    check drawn on a bank in the city where Depositary
    Bank is located. Payor Bank sends the teller's check
    on the day the item was presented. Having made
    timely settlement, under the deferred posting
    provisions of Section 4-301(a), Payor Bank may
    revoke that settlement by returning the item before
    its midnight deadline. If it fails to return the

                              20
1130040

    item before its midnight deadline, it has finally
    paid the item if the bank on which the teller's
    check was drawn honors the check. But if the
    teller's check is dishonored there has been ... no
    final payment under Section 4-215(b). Since the
    Payor Bank has neither paid the item nor made timely
    return, it is accountable for the item under Section
    4-302(a)[5]."

    The final-payment rule and the midnight-deadline rule

operated to make Troy Bank, the payor bank, liable for the

full face amount of the check when it paid the underencoded

amount of the check pursuant to § 7-4-215 (setting forth the

final-payment rule) and did not dishonor the check within the


    5
        Section 7-4-302(a), Ala. Code 1975, states:

         "(a) If an item is presented to and received by
    a payor bank, the bank is accountable for the amount
    of:

                 "(1) A demand item, other than a
            documentary draft, whether properly payable
            or not, if the bank, in any case in which
            it is not also the depositary bank, retains
            the item beyond midnight of the banking day
            of receipt without settling for it or,
            whether or not it is also the depositary
            bank, does not pay or return the item or
            send notice of dishonor until after its
            midnight deadline; or

                 "(2) Any other properly payable item
            unless, within the time allowed for
            acceptance or payment of that item, the
            bank either accepts or pays the item or
            returns it and accompanying documents."
                                21
1130040

time prescribed in § 7-4-301 (setting forth the midnight-

deadline rule). This conclusion is supported by the following

secondary authorities and cases.

    Lawrence's    Anderson      on    the   Uniform     Commercial   Code

states:

         "Where the item was encoded in a smaller amount
    than for which it was drawn, if the payor bank does
    not dishonor the item, it will be accountable for
    the full amount of the item as drawn while having
    debited its customer's account only for the amount
    in which it was encoded. If the customer is
    insolvent, the payor bank may not be able to recover
    the full amount of the item from its customer. If
    this is the case, the depository bank will be liable
    to the payor bank for the difference."

§ 4-209:6 (emphasis added); see also 1 Henry J. Bailey &

Richard B. Hagedorn, Brady on Bank Checks: The Law of Bank

Checks § 21.04 (rev. ed. 2011)("[U]nder the UCC, it is clear

that a payor bank remitting an insufficient amount on an

underencoded    check   would        be   accountable    for   the   full

amount."); and Lawrence, Changes in Check Collection, 61 J.

Kan. B.A. at 33 ("If the encoding is for less than the amount

of the check, the payor bank is liable for the full amount of

the check.").    This is in accord with the Official Comment to

§ 7-4-209, which states, in pertinent part:




                                     22
1130040

    "If a drawer wrote a check for $25,000 and the
    depositary bank encoded $2,500, the payor bank
    becomes liable for the full amount of the check. The
    payor bank's rights against the depositary bank
    depend on whether the payor bank has suffered a
    loss. Since the payor bank can debit the drawer's
    account for $25,000, the payor bank has a loss only
    to the extent that the drawer's account is less than
    the full amount of the check. There is no
    requirement that the payor bank pursue collection
    against the drawer beyond the amount in the drawer's
    account as a condition to the payor bank's action
    against the depositary bank for breach of warranty."

§ 7-4-209, ¶ 2 (emphasis added); see also White & Summers,

Uniform Commercial Code § 20-6c. ("The comment and [§ 4-209]

seem to adopt the proposition that a payor who pays an

underencoded amount has made final payment on the check or has

liability for the full face amount to other parties. However,

the payor can recover or set off any difference that it cannot

get from its customer from the encoding depositary bank.

Thus, the payor would first have to attempt to charge its

depositor's account for the amount of the check and if it

could not -- either because the account had been closed or

there was a stop payment -- it would have a warranty claim

against the depositary bank."); and Paul A. Carrubba, UCC

Revised Articles 3 & 4: The Banker's Guide to Checks, Drafts

and Other Negotiable Instruments 165 (Banker's Publ'g Co.


                             23
1130040

1993)("The payor of the item is allowed, under [§ 4-209], to

look immediately and directly to the depository bank without

first attempting to collect the proceeds from the payee of the

check. If the check was written by the drawer for $10,000 but

was encoded as $1,000, the payor could first attempt to charge

the customer's account for the $9,000 underencoded amount. If

the customer's bank account balance was not sufficient, the

payor bank could look directly to the depository bank without

first pursuing collection from the drawer.").

    Moreover, in Azalea City Motels, Inc. v. First Alabama

Bank of Mobile, 551 So. 2d 967, 976 (Ala. 1989), this Court

held, under the then existing version of Alabama's UCC,

relying upon Georgia Railroad Bank & Trust Co. v. First

National Bank & Trust Co. of Augusta, 139 Ga. App. 683, 684-

85, 229 S.E.2d 482, 484 (1976), as follows:

         "The UCC provides that the payor bank becomes
    accountable for an item upon paying the item. §
    7–4–213(1).[6] Like our sister state of Georgia, we

    6
     Section § 7-4-215 encompasses, with some revisions, the
final-payment rule previously set forth in the now repealed §
7-4-213 (Act No. 95-668, Ala. Acts 1995, repealed what had
been § 7-4-213 and enacted a new § 7-4-213, moving the
substance of former § 7-4-213 to § 7-4-215). Prior to 1996,
"[f]ormer Section 4-213(1)(c) provided that final payment
occurred when the payor bank completed the 'process of
posting.' [The process-of-posting test was] abandoned in
                             24
1130040

    hold that the partial payment of the item by [the
    payor bank] constituted final payment within the
    meaning of § 7–4–213(3), so that the [payor] bank
    was rendered accountable for the full and proper
    amount of the item."

See also First Nat'l Bank of Boston v. Fidelity Bank, 724 F.

Supp. 1168, 1172 (E.D. Pa. 1989) ("I reject the argument that

the amount of the item for § 4–213(1) [pre-revised UCC]

purposes is the encoded amount, rather than the face amount,

of the check."); and Georgia R.R. Bank & Trust Co., 139 Ga.

App. at 685, 229 S.E.2d at 484 (a case cited in the Official

Comment to § 7-4-209 finding that "posting of the item,

although in a smaller amount than the true amount of the item,

was sufficient to constitute final payment [and] the payor

bank became accountable for the amount of the item").7


[revised] Section 4-215(a) for determining when final payment
is made." § 7-4-215, Ala. Code 1975, Official Comment ¶ 5.
Additionally, former § 4-213(1) provided that "[u]pon final
payment under subparagraphs (b), (c) or (d) the payor bank
shall be accountable for the amount of the item."        This
sentence was deleted in revised § 7-4-215(a), Ala. Code 1975.
The provision was thought to be "an unnecessary source of
confusion," especially since the revised section deleted the
process-of-posting test. § 7-4-215, Ala. Code 1975, Official
Comment ¶ 6. A bank will still be accountable under § 7-4-302
if it "has neither paid the item nor returned it within its
midnight deadline."    § 7-4-215, Ala. Code 1975, Official
Comment ¶ 6.
    7
     Referring to First National Bank of Boston, Azalea City
and Georgia R.R. Bank & Trust Co., the United States District
                             25
1130040

    In    the   present   case,   Ronnie   Gilley   Properties,    LLC

("Gilley"), the drawer, issued a $100,000 check to Cile Way

Properties, LLC ("Cile").         Cile deposited the check in its

account at Citizens Bank, the depositary bank.        Citizens Bank

encoded the check in order to collect the funds from Gilley's

bank -- Troy Bank, the payor bank.          However, Citizens Bank

incorrectly encoded the check for $1,000 instead of $100,000;

Citizens Bank underencoded the check by $99,000.         Therefore,

when Troy Bank was presented with the check, it was encoded

for $1,000, and Troy Bank paid Citizens Bank $1,000.8             Troy

Bank paid the check and at no time sought to dishonor the

check.    Therefore, pursuant to §§ 7-4-215, 7-4-301, and the


Court for the Western District of Pennsylvania stated in
United States v. Zarra, 810 F. Supp. 2d 758, 767 (W.D. Pa.
2011):

    "Important policies support these holdings. '[T]he
    Board [of Governors of the Federal Reserve System]
    believes that finality of payment and the discharge
    of the underlying obligation are fundamental and
    valuable features of the check collection process.'
    Collections of Checks and Other Items by Federal
    Reserve Banks, 70 Fed. Reg. 71218, 71221 (Nov. 28,
    2005) (to be codified at 12 C.F.R. pts. 210 and
    229)."
    8
     At the time Troy Bank paid the underencoded amount of
$1,000 to Citizens Bank, there were sufficient funds in
Gilley's account to cover the full $100,000 amount of the
check.
                                   26
1130040

ample authority cited above, at the time Troy Bank paid the

underencoded amount of $1,000, it became liable for the full

amount of the check -- $100,000 -- because it made payment on

the check and did not dishonor the check within the midnight

deadline.

       Having concluded that Troy Bank became liable for the

full amount of the check when it paid the underencoded amount

of the check and did not revoke its settlement of the check by

the midnight deadline, we now turn to whether the encoding

warranty shifts liability from Troy Bank to Citizens Bank.

Based on the principles set forth above, we conclude that the

encoding warranty shifts liability to Citizens Bank.

       Citizens Bank discovered its encoding error after Troy

Bank had honored the check and had paid the underencoded

amount.    Citizens Bank then submitted to the Federal Reserve

Bank    the   adjustment   notice    requesting   that   $99,000   be

transferred from Troy Bank to Citizens Bank to cover the full

amount of the check.       At the time the Federal Reserve Bank

transferred $99,000 from Troy Bank's Federal Reserve Bank

account to Citizens Bank's Federal Reserve Bank account,

Gilley's account no longer had sufficient funds to pay the


                                    27
1130040

full amount of the check.    After receiving notice that the

Federal Reserve Bank had paid Citizens Bank's adjustment

notice, Troy Bank discovered that Gilley's account no longer

had sufficient funds to cover the full amount of the check and

realized damage in the alleged amount of $98,436.43.9

    It is important to note that had Citizens Bank properly

encoded the check there would have been no damage.      As set

forth above, Gilley's account had sufficient funds to cover

the full amount of the check when Troy Bank was presented with

the check.   However, Gilley all but emptied the checking

account after the underencoded amount of $1,000 was withdrawn

from its account so that, when Citizens Bank realized its

error and sent the adjustment notice, there were no longer

sufficient funds in Gilley's account to cover the full amount

of the check. Citizens Bank's encoding error caused Troy Bank

to incur damage.10



    9
     Apparently, Troy Bank was able to recover $563.57 from
Gilley's account.
    10
      The purpose of a claim brought under the encoding
warranty is to determine liability between banks for damage
caused by an encoding error. Therefore, in considering Troy
Bank's claim against Citizens Bank, Gilley's conduct is
irrelevant.
                             28
1130040

     Under the encoding warranty -- and in accordance with the

Official Comment to § 7-4-209 and the above-quoted cases and

secondary authorities -- it was error for the circuit court to

enter a summary judgment in Citizens Bank's favor.                  As the

Official Comment ¶ 2 to the encoding warranty states, "[t]here

is no requirement that the payor bank pursue collection

against the drawer beyond the amount in the drawer's account

as   a   condition   to     the   payor    bank's   action    against   the

depositary bank for breach of warranty."                    Following the

Federal Reserve Bank's payment of Citizens Bank's adjustment

notice from Troy Bank's Federal Reserve Bank account, Troy

Bank first looked to Gilley's account for the $99,000 that had

been transferred to Citizens Bank.           Gilley's account had been

all but emptied and no longer had sufficient funds to cover

the full amount of the check; thus, Troy Bank's damage, for

which    Citizens    Bank    is   liable    pursuant   to    the   encoding

warranty, is the difference between the $99,000 that was

transferred from Troy Bank to Citizens Bank and the amount of

funds in Gilley's account at that time.

     The encoding warranty protects Troy Bank from any damage

resulting from Citizens Bank's encoding error.               Although Troy


                                     29
1130040

Bank did not incur any damage at the time it honored the check

by   paying   the   underencoded     amount   of    $1,000,   Troy   Bank

certainly incurred damage when the adjustment notice was paid

because Gilley's account no longer contained sufficient funds

to cover the full amount of the check.             The damage Troy Bank

incurred was the result of Citizens Bank's encoding error.

Had Citizens Bank properly encoded the check, Gilley's account

would have contained sufficient funds to cover the full amount

of the check when it was first presented to Troy Bank.

     We note that Citizens Bank argues that its breach of the

encoding warranty does not make it strictly liable for the

alleged damage to Troy Bank but that its breach of the

encoding   warranty    must   have   actually      caused   Troy   Bank's

alleged damage in order for Citizens Bank to be liable for the

alleged damage.       We agree and, as set forth above, have

concluded that Citizens Bank's breach of the encoding warranty

caused Troy Bank's alleged damage.            Citizens Bank makes a

strained argument that Troy Bank was under an obligation to

"dishonor" the adjustment notice.        See Citizens Bank's brief,

at pp. 29-32.       However, as set forth above, Troy Bank was

already liable for the full amount of the check when Citizens


                                   30
1130040

Bank sent the adjustment notice to the Federal Reserve Bank.

Payment of the adjustment notice did not make Troy Bank liable

for the full amount of the check; Troy Bank's payment of the

underencoded amount of $1,000 made Troy Bank liable for the

full amount of the check.11        The payment of the adjustment

notice was inconsequential as to Troy Bank's liability.

    In this case, the encoding warranty, which is applied to

determine liability as between banks, operates to shift the

liability to Citizens Bank. To hold that Citizens Bank is not

liable for the damage it caused Troy Bank based on Citizens

Bank's encoding error would render the encoding warranty

useless    and   strip   Troy   Bank   of   a   legislatively   enacted

protection.12

    11
      See Official Comment to § 7-4-209 and Lawrence's
Anderson on the Uniform Commercial Code § 4-209:6, supra.
    12
         We also note the following salient point made by Troy
Bank:

         "As a practical matter, Citizens Bank's theory
    of a second midnight deadline [applying to the
    adjustment notice] would not only nullify § 7-4-209,
    but it would also require every bank to set up a
    system to potentially process the same check two (or
    possibly more) times. Rather than putting the risk
    on the party who can best bear it by properly
    encoding the check -- as the legislature has
    expressly done -- Citizens Bank's theory would
    provide a perverse incentive to game the system by
                                  31
1130040

                          Conclusion

    Based on the foregoing, we conclude that the circuit

court erred in its application of the law to the undisputed

facts of this case.   Citizens Bank's initiation of the claim



    misencoding a check and then        having   multiple
    opportunities for it to clear."

Troy Bank's brief, at p. 22 (footnote omitted). Citizens Bank
relies upon U.S. Bank National Association v. First Security
Bank, N.A., (No.2:97-CV-0789C, April 3, 2001) (D. Utah
2001)(not reported in F. Supp. 2d), to argue that any delay
caused by Troy Bank in discovering that Gilley's account had
insufficient funds to cover the full amount of the check
should be taken into consideration in determining liability.
That factor, however, is irrelevant in this case. In U.S.
Bank, a payor bank's delay in looking to a drawer's account to
cover the full amount of an underencoded check played a
significant role in the court's decision because it was the
payor bank's delay that allowed the drawer to empty his
account.   In this case, if any delay is relevant, it is
Citizens Bank's delay in discovering its encoding error, which
allowed Gilley time to empty its account before the adjustment
notice was sent.      By the time Troy Bank received the
adjustment notice, Gilley's account had been all but emptied.
Therefore, U.S. Bank is inapplicable to this case. Moreover,
U.S. Bank is an unreported decision decided by the United
States District Court of Utah; it is lacking in precedential
value. Citizens Bank also relies upon First National Bank of
Boston v. Fidelity Bank, National Association, 724 F. Supp.
1168 (E.D. Penn. 1989), for a similar principle. However,
First National was decided by the United States District Court
for the Eastern District of Pennsylvania in 1989, a year
before the UCC was revised to include the check-encoding-
warranty provisions, which Alabama later adopted. In First
National, the court was dealing with a court-created equitable
doctrine, not a statutory provision. Therefore, this Court
will not consider U.S. Bank and First National.
                              32
1130040

procedure did not deprive Troy Bank of its statutory right to

seek damages under the encoding warranty.   Under the encoding

warranty, Citizens Bank is liable for the alleged damage to

Troy Bank.    Accordingly, we reverse the circuit court's

summary judgment and remand the cause for the circuit court to

enter a summary judgment in favor of Troy Bank in the amount

of damages supported by the substantial evidence.

    REVERSED AND REMANDED.

    Moore, C.J., and Stuart, Bolin, Main, and Bryan, JJ.,

concur.

    Shaw, J., concurs in the result.

    Murdock, J., dissents.




                             33
