(a) Measure of damages.
(1) In general. Except as provided in paragraph (a)(2) or (a)(3) of this section
or section 229.53, any person that breaches a warranty described in
section 229.52 or fails to comply with any requirement of this subpart
with respect to any other person shall be liable to that person for
an amount equal to the sum of—
(i) the amount of the loss
suffered by the person as a result of the breach or failure, up to
the amount of the substitute check; and
(ii) interest and expenses (including
costs and reasonable attorney’s fees and other expenses of representation)
related to the substitute check.
(2) Offset of
recredits. The amount of damages a person receives under paragraph
(a)(1) of this section shall be reduced by any amount that the person
receives and retains as a recredit under section 229.54 or section
229.55.
(3) Comparative negligence.
(i) If
a person incurs damages that resulted in whole or in part from that
person’s negligence or failure to act in good faith, then the amount
of any damages due to that person under paragraph (a)(1) of this section
shall be reduced in proportion to the amount of negligence or bad
faith attributable to that person.
(ii) Nothing in this paragraph (a)(3)
reduces the rights of a consumer or any other person under the UCC
or other applicable provision of federal or state law.
9-579.1
(b) Timeliness of action. Delay by a bank beyond any time limits prescribed or permitted by
this subpart is excused if the delay is caused by interruption of
communication or computer facilities, suspension of payments by another
bank, war, emergency conditions, failure of equipment, or other circumstances
beyond the control of the bank and if the bank uses such diligence
as the circumstances require.
(c) Jurisdiction. A person may bring an action
to enforce a claim under this subpart in any United States district
court or in any other court of competent jurisdiction. Such claim
shall be brought within one year of the date on which the person’s
cause of action accrues. For purposes of this paragraph, a cause of
action accrues as of the date on which the injured person first learns,
or by which such person reasonably should have learned, of the facts
and circumstances giving rise to the cause of action, including the
identity of the warranting or indemnifying bank against which the
action is brought.
(d) Notice of claims. Except as otherwise provided in this paragraph
(d), unless a person gives notice of a claim under this section to
the warranting or indemnifying bank within 30 calendar days after
the person has reason to know of both the claim and the identity of
the warranting or indemnifying bank, the warranting or indemnifying
bank is discharged from liability in an action to enforce a claim
under this subpart to the extent of any loss caused by the delay in
giving notice of the claim. A timely recredit claim by a consumer
under section 229.54 constitutes timely notice under this paragraph.
