CopyCited 35 times | Published | Court of Appeals for the Eleventh Circuit | 2014 WL 1410172, 2014 U.S. App. LEXIS 6868
...Neither the
text nor the policy of Rule 206(4)-2 contemplate any active role on the part of
qualified custodians other than safely holding assets and providing reports.
In search of an authority imposing an independent legal duty on custodian
banks, Mr. Lamm points to Fla. Stat. § 674.103(1), Florida’s version of U.C.C....
CopyCited 9 times | Published | District Court, M.D. Florida | 1985 U.S. Dist. LEXIS 18147
...exercise ordinary care or can limit the measure of damages for such lack or failure; but the parties may by agreement determine the standards by which such responsibility is to be measured if such standards are not manifestly unreasonable. Fla.Stat. § 674.103(1). The regular rules for determining whether there is an agreement between the parties must be applied under UCC § 4-103 [Fla.Stat. § 674.103(1), hereinafter § 674.103]....
...onal banking on drafts. No evidence was produced by defendant to contradict this testimony. Therefore, the Court determines that the standards were agreed upon by the parties through their conduct, and were not manifestly unreasonable. See Fla.Stat. § 674.103(1)....
...Furthermore, the URC does not allow banks to disclaim responsibility for lack of good faith or failure to exercise ordinary care, and does not limit the measure of damages for such lack or failure. See URC Art. 1. Thus, it does not contravene the requirements of UCC § 4-103 (§ 674.103)....
...In summary, the Court concludes that the parties agreed, as that term is defined by the UCC, that the standards specified in the URC should govern their duties with respect to the first bill of exchange, and that an agreement to incorporate the provisions of the URC is permissible under UCC § 4-103 (§ 674.103)....
...ndling an item is the amount of the item reduced by an amount which could not have been realized by the use of ordinary care, and where there is bad faith it includes other damages, if any, suffered by the party as a proximate consequence. Fla.Stat. § 674.103(5)....
...to court a fund or other property. See, e.g., Kittel v. Kittel,
210 So.2d 1 (Fla.1968). Of these three theories, the only arguable basis for an award of attorney's fees is that the legislature intended to include authorization for attorney's fees in §
674.103(5) and §
674.302....
...Alfred and Ann Goldstein Foundation,
327 So.2d 110, 111 (Fla. 1st DCA 1976); Perkins State Bank v. Connolly,
632 F.2d at 1313. No Florida court has determined whether attorney's fees can be awarded under either of these sections, although the former Fifth Circuit in dictum indicated that §
674.103 "arguably contemplate[s]" awards of attorney's fees....
...ve intent before attorney's fees may be awarded under a statute. Attorney's fees also may be awarded as an element of damages incident to certain actions such as an action in indemnity. See Perkins State Bank v. Connolly,
632 F.2d at 1315. Arguably, §
674.103(5), which provides for consequential damages upon a finding of bad faith, could be interpreted to allow for attorney's fees as an element of consequential damages....
...damages, does not allow for an award of attorney's fees as costs or damages. Based upon the statute, official comment and analogous case law, the Court concludes that under Florida law attorney's fees are not included in consequential damages under § 674.103(5)....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 34 U.C.C. Rep. Serv. (West) 228, 1982 Fla. App. LEXIS 19811
...charge-back to Stereo Corner's account because the trial court failed to determine whether Central Bank satisfied the pre-conditions of Section 674.212, [2] supra, or whether the parties effectively varied the notice requirement pursuant to Sections
674.103(1) [3] and
674.202, Florida Statutes (1979)....
...[2] The right of charge-back under Section 674.212 exists only if (a) "by its midnight deadline or within a longer reasonable time after it [collecting bank] learns the facts it returns the item or sends notification of the facts," or (b) there has been no final settlement of the item. [3] Section 674.103(1) provides in part: The effect of the provisions of this chapter may be varied by agreement except that no agreement can disclaim a bank's responsibility for its own lack of good faith or failure to exercise ordinary care....
CopyCited 7 times | Published | District Court, M.D. Florida | 2015 U.S. Dist. LEXIS 15146, 2015 WL 518826
...es, not a bank’s customers. And the Receiver points to no other statutory or administrative source for the claimed duty of care alleged in Count I, with the exception of the UCC’s duty imposed on banks to “exercise ordinary care.” Fla. Stat. § 674.103 (1)....
CopyCited 6 times | Published | Court of Appeals for the Eleventh Circuit | 29 U.C.C. Rep. Serv. 2d (West) 905, 1996 U.S. App. LEXIS 11189
...§
674.202(1)(b) (1993) (requiring a collecting bank to use ordinary care in sending notice of dishonor); U.C.C. § 4-202 (1990). Because the bank was negligent, Bufman argues, it is liable for the amount of the checks under Florida law. See Fla.Stat.Ann. §
674.103(5) (1993); U.C.C....
...39 Bufman's §
674.302 claim is based on a routine agreement that is part of the bank's records: the contract of deposit that established his checking account with Bank M. 7 The terms of this contract are set by Florida law governing bank deposits, unless they are varied by agreement. See Fla.Stat.Ann. §
674.103(1)....
CopyCited 5 times | Published | District Court, S.D. Florida | 48 U.C.C. Rep. Serv. 2d (West) 232, 2002 U.S. Dist. LEXIS 12962, 2002 WL 1473458
...[23] The Court need not decide whether First Union exercised ordinary care, as SCADIF did not suffer any damages compensable from a collecting bank. The measure of damages for which a collecting bank is liable if it fails to exercise ordinary care is set forth in section 674.103(5), Florida Statutes: 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....
CopyCited 4 times | Published | United States Bankruptcy Court, N.D. Florida | 16 Fla. L. Weekly Fed. B 191, 2003 Bankr. LEXIS 835, 2003 WL 21729750
...The first step in a negligence analysis is to identify the standard of care with regards to a duty and then determine to whom that duty is owed. The general rule is that a bank has a duty to use ordinary care, presumptively in all its dealings. Fla. Stat. 674.103....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 20 U.C.C. Rep. Serv. 2d (West) 1017, 1993 Fla. App. LEXIS 4230, 1993 WL 114778
...lus interest and costs. We conclude that the trial court erred by adopting a rule of reasonableness. In this case, the parties do not argue that the outcome is controlled by either federal reserve regulations or by the local clearinghouse rules. See § 674.103, Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 63 U.C.C. Rep. Serv. 2d (West) 1029, 2007 Fla. App. LEXIS 14525, 2007 WL 2700163
...ailure to exercise ordinary care as a matter of law, which also entitled Putnal to summary judgment. In response to this allegation, the bank argued that the parties may, by agreement, alter the default statutory provisions contained in chapter 674. § 674.103(1), Fla....
...As to Putnal's second argument, the court reasoned that while it was true that parties may vary default provisions of the UCC, they may not "disclaim a bank's responsibility for its . . . failure to exercise ordinary care or limit the measure of damages for the lack of failure." § 674.103(1), Fla....
...nt void. The agreement between the parties does not disclaim the bank's responsibility to exercise ordinary care and it does not limit the bank's damage for its failure to exercise such care. Accordingly, the Deposit Agreement is not in violation of section 674.103(1), and it is a valid agreement....
...e, the parties agreed to the use of the term "unauthorized transactions" in the Deposit Agreement rather than "items" or "instruments." Because the Deposit Agreement has no effect on the bank's duty to act with ordinary care, it is not void based on section 674.103(1); therefore, the trial court erred in granting Putnal's motion for final summary judgment, and we reverse....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 25 U.C.C. Rep. Serv. (West) 202, 1978 Fla. App. LEXIS 16761
...conducted its affairs and lack of careful supervision over employees were facts too remote from the bank's acceptance of the forged endorsements to be the proximate cause of loss resulting from such endorsements. The bank leans upon the provision of Section 674.103(5) which in part provides: "The measure of damages for failure to exercise ordinary care in handling an item is the amount of the item reduced by an amount which could not have been realized by the use of ordinary care......
CopyCited 2 times | Published | District Court, S.D. Florida | 2016 U.S. Dist. LEXIS 183865, 2016 WL 4613388
...Plaintiff, however, has not cited to any authority within the Eleventh Circuit or Florida to support its position, and for good reason. Florida’s UCC places the burden to review bank statements on the customer, and expressly allows the parties to alter the terms of Chapter 674. See Fla. Stat. Ann. § 674.103 (1); see also Fla....
CopyPublished | Court of Appeals for the Eleventh Circuit | 41 U.C.C. Rep. Serv. 2d (West) 726, 2000 U.S. App. LEXIS 11737, 2000 WL 679165
...nor, and pay all
checks "bearing or purporting to bear" the facsimile signature of FPL's authorized representative. Florida's
version of the U.C.C. allows a bank and its customer to contract around the default rules set forth in U.C.C.
Fla. Stat. § 674.103(1);2 19B Fla. Stat. Ann., U.C.C. Comment to § 674.103 (1993) (indicating that §
1
Arkwright is equitably surrogated to any claims FPL may have against the person or persons liable for
the loss and has obtained an assignment of FPL's claims against the person or persons liable for th...
...the measure of damages for the lack of 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
2
674.103(1) "permits within wide limits variation of the effects of provisions of the article by Agreement.").
Under Fla....
...The parties stipulated that 1) NationsBank paid forged checks drawn against FPL's account, 2) the checks
bore a forgery of FPL's authorized facsimile signature, although the checks appeared to be authentic,3 and 3)
unreasonable.
Fla. Stat. § 674.103(1).
3
Each check bore a different serial number corresponding to actual FPL checks that FPL had internally
voided or canceled through its check production process without notice to Nationsbank.
3
NationsBank paid the forged checks under the U.C.C....
...v.
Manufacturers and Traders Trust Co., 29 A.D.2d 467, 289 N.Y.S.2d 254 (N.Y.App.Div.1968) (same).
Moreover, this was not a true exculpatory clause because NationsBank and FPL did not contract to
avoid the bank's duty to exercise ordinary care. Florida Stat. § 674.103(1) allows a customer who wishes to
use a facsimile signature machine for his own commercial purposes to enter into an agreement with a bank
that shifts the risk of forgery from the bank to the customer as long as the risk shifting agreem...
...contend nor was there any finding by the district court that the resolution removed the bank's duty of ordinary
care. In fact, all parties are in agreement that the bank retained its duty to exercise ordinary care. The district
5
The comment to Fla. Stat. § 674.103(1) states:
Section 1-102 states the general principles and rules for variation of the effect of this Act
by agreement and the limitations to this power....
CopyPublished | Court of Appeals for the Eleventh Circuit
...pay all checks “bearing or purporting to
bear” the facsimile signature of FPL’s authorized representative. Florida’s version of
the U.C.C. allows a bank and its customer to contract around the default rules set forth
in U.C.C. Fla. Stat. § 674.103(1);2 19B Fla. Stat. Ann., U.C.C. Comment to § 674.103
(1993) (indicating that § 674.103(1) “permits within wide limits variation of the
effects of provisions of the article by Agreement.”)....
...damages for the lack of 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.
Fla. Stat. § 674.103(1).
4
clause in its banking contract authorized NationsBank to pay checks with forged
facsimile signatures.
The parties agreed that NationsBank would move for summary judgment to
determi...
...Manufacturers and Traders Trust Co., 289 N.Y.S.
2d 254 (N.Y. App. Div. 1968) (same).
Moreover, this was not a true exculpatory clause because NationsBank and FPL
did not contract to avoid the bank’s duty to exercise ordinary care. Florida Stat. §
674.103(1) allows a customer who wishes to use a facsimile signature machine for his
own commercial purposes to enter into an agreement with a bank that shifts the risk
of forgery from the bank to the customer as long as the risk shifting agreement does
not attempt to disclaim the bank’s statutory duties of good faith and ordinary care.5
5
The comment to Fla. Stat. § 674.103(1) states:
Section 1-102 states the general principles and rules for variation of the
12
NationsBank does not contend nor was there any finding by the district court that the
resolution removed the bank’s duty of ordinary care....
CopyPublished | Court of Appeals for the Eleventh Circuit
...§
674.202(1)(b) (1993) (requiring a collecting bank to use ordinary care in sending notice of dishonor); U.C.C. § 4-202 (1990). Because the bank was negligent, Bufman argues, it is hable for the amount of the checks under Florida law. See Fla.Stat. Ann. §
674.103(5) (1993); U.C.C....
...Bufman’s §
674.302 claim is based on a routine agreement that is part of the bank’s records: the contract of deposit that established his checking account with Bank M. 7 The terms of this contract are set by Florida law governing bank deposits, unless they are varied by agreement. See Fla.Stat.Ann. *1028 §
674.103(1)....
CopyPublished | Court of Appeals for the Eleventh Circuit
...Neither the
text nor the policy of Rule 206(4)-2 contemplate any active role on the part of
qualified custodians other than safely holding assets and providing reports.
In search of an authority imposing an independent legal duty on custodian
banks, Mr. Lamm points to Fla. Stat. § 674.103(1), Florida’s version of U.C.C....
