Roger Chavez v. Mercantil Commercebank, N.A.

701 F.3d 896, 79 U.C.C. Rep. Serv. 2d (West) 152, 2012 U.S. App. LEXIS 24358, 2012 WL 5907151
CourtCourt of Appeals for the Eleventh Circuit
DecidedNovember 27, 2012
Docket11-15804
StatusPublished
Cited by73 cases

This text of 701 F.3d 896 (Roger Chavez v. Mercantil Commercebank, N.A.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roger Chavez v. Mercantil Commercebank, N.A., 701 F.3d 896, 79 U.C.C. Rep. Serv. 2d (West) 152, 2012 U.S. App. LEXIS 24358, 2012 WL 5907151 (11th Cir. 2012).

Opinions

[897]*897BATTEN, District Judge:

Roger Chavez is a customer of Mercantil Commercebank, NA. (“the bank”). This case involves an allegedly fraudulent payment order that resulted in the bank’s transfer of $329,500 from his account to someone in the Dominican Republic. Chavez sued the bank to recover the $329,500. In response to Chavez’s complaint, the bank asserted, inter alia, an affirmative defense premised upon Fla. Stat. § 670.202(2), which relieves a bank of liability for fraudulent payment orders in certain situations. The district court granted the bank’s motion for summary judgment and denied Chavez’s motion for partial summary judgment on this defense. Chavez appeals.

Generally speaking, under Florida’s version of the Uniform Commercial Code (“UCC”), if a bank and its customer agree upon a “security procedure,” as that phrase is defined by Fla. Stat. § 670.201, and the procedure is commercially reasonable, a bank is absolved of liability for a fraudulent transfer of the customer’s funds if the bank, when processing an order to transfer the customer’s funds, follows the security procedure in good faith. See Fla. Stat. §§ 670.201 & 670.202(2). We conclude that the parties’ agreed-upon security procedure does not satisfy § 670.201 and consequently § 670.202(2) does not apply. Accordingly, we reverse.

I. BACKGROUND

In September 2002, Chavez, a resident of Venezuela, opened an account with the bank, which is located in Miami, Florida. Chavez contends that when he opened his account, the bank created and maintained an electronic file that had a copy of his passport and that included his address and phone number.

Chavez’s account was subject to the bank’s funds transfer agreement (“FTA”). Relevant to the current dispute is § 5 of the FTA, which details the security procedure for the account. In general, a security procedure is a procedure that the bank uses when processing payment orders in order to verify the authenticity of the order and to detect any errors in their transmission or content. Fla. Stat. § 670.201. Section 5 of the FTA provides in pertinent part:

(i) The parties shall comply with the security procedure selected on Annex 1 to this Agreement (the “Security Procedure”) ....
(ii) The use of the Security Procedure is hereby accepted and authorized by the Client and, unless and until any writing that is signed by the Bank and made a part of this Agreement, the use of the Security Procedure in the manner set forth in this Agreement shall be the sole security procedure required with respect to any Order, and the Client acknowledges and agrees that: (a) the Bank offers various procedures affording differing degrees of security; (b) the Security Procedure is sufficient to protect the interests of the Client in light of the Client’s needs, and no special circumstances exist with respect to the Client that would require any other security procedure; and (c) the Security Procedure is a method of providing security against unauthorized Orders that is commercially reasonable under the circumstances of the Client and in light of the size, type, frequency and volume of Transfers the Client contemplates undertaking.
(iii) The Bank may execute any Payment Order and act on any other instruction relating to the Payment Order and the Payment Order or instruction shall be effective as the Client’s Order, whether or- not au[898]*898thorized by the Client and regardless of the actual transmitter, provided that the Bank accepts the Payment Order or instruction in good faith and in compliance with the Security Procedure. At its option, the Bank may use, in addition to the Security Procedure selected by the Client, any other means to verify any Payment Order or related instruction.
(iv) The Client shall preserve the security and confidentiality of the Security Procedure and any related devices or materials, and shall promptly notify the Bank of any suspected compromise of the integrity of the Security Procedure.
(v) The Client acknowledges that the sole purpose of the Security Procedure is to determine the authenticity of Orders, and not to determine their accuracy ....

As indicated above, § 5(i) incorporates by reference a document entitled Annex 1, which lists three different options for security procedures that the bank will use when processing a customer’s payment orders. Depending on the option, customers can select one option and at most two options.

Chavez selected only the first option, “Written Payment Orders.” It provides:

Written Payment Orders shall be delivered by an Authorized Representative (as defined below) to the Bank either in original form, in person or by mail, or by facsimile transmission. Each written Payment Order must be signed by at least one Authorized Representative or, if the terms of the account to which the Payment Order relates (the “Affected Account”) require signature by more than one Authorized Representative, by the number of Authorized Representatives so required. Each written Payment Order not delivered to the Bank in person by an Authorized Representative must be confirmed by the Bank by telephone callback to any person who identifies himself or herself to the Bank’s satisfaction as one of the Authorized Representatives, (irrespective of whether the terms of the Affected Account require more than one Authorized Representative to sign Payment Orders)

For Chavez’s account, he was the only authorized representative. Thus, for written payment orders delivered in person, Chavez had to sign the payment order.

On February 4, 2008, Chavez flew to Miami and visited the bank’s Doral branch. He inquired about why he had not been receiving monthly statements, and he made a large cash deposit. The next day, he returned and made a smaller cash deposit. On February 6, he returned his rental car to the Miami airport around 6:40 a.m. and flew back to Venezuela.

On February 6, someone purporting to be Chavez went to the Doral branch with a written payment order for $329,500. Chavez contends that he had already departed for Venezuela at the time the payment order was delivered to the bank. The order was processed by bank employee Rossana Gutierrez, who was a greeter at the bank, but she occasionally performed the responsibilities of a customer service representative, the type of employee who would typically process a payment order.

According to the district court, Gutierrez confirmed (1) the information on the payment order, (2) the customer’s identity via an identification document provided by the customer, (3) the sufficiency of funds in the account, (4) the existence of an FTA for the account, and (5) the authenticity of the signature on the payment order. She then obtained written approval from two branch officers, Talia Pina and Lolita Peroza, who then performed additional steps [899]*899to verify the authenticity of the payment order.

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701 F.3d 896, 79 U.C.C. Rep. Serv. 2d (West) 152, 2012 U.S. App. LEXIS 24358, 2012 WL 5907151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roger-chavez-v-mercantil-commercebank-na-ca11-2012.