SB358: Bill Text

SB358,65,6 (6) If the obligation of a party is secured by an interest in collateral not provided by an accommodation party and a person entitled to enforce the instrument impairs the value of the interest in collateral, the obligation of any party who is jointly and severally liable with respect to the secured obligation is discharged to the extent that the impairment causes the party asserting discharge to pay more than that party would have been obliged to pay, taking into account rights of contribution, if impairment had not occurred. If the party asserting discharge is an accommodation party not entitled to discharge under sub. (5), the party is considered to have a right to contribution based on joint and several liability rather than a right to reimbursement. The burden of proving impairment is on the party asserting discharge.

SB358,65,8 (7) Under sub. (5) or (6), impairing value of an interest in collateral includes all of the following:

SB358,65,10 (a) Failure to obtain or maintain perfection or recordation of the interest in collateral.

SB358,65,11 (b) Release of collateral without substitution of collateral of equal value.

SB358,65,13 (c) Failure to perform a duty to preserve the value of collateral owed, under ch. 409 or other law, to a debtor or surety or other person secondarily liable.

SB358,65,14 (d) Failure to comply with applicable law in disposing of collateral.

SB358,65,17 (8) An accommodation party is not discharged under sub. (3), (4) or (5) unless the person entitled to enforce the instrument knows of the accommodation or has notice under s. 403.419 (3) that the instrument was signed for accommodation.

SB358,65,22 (9) A party is not discharged under this section if the party asserting discharge consents to the event or conduct that is the basis of the discharge or if the instrument or a separate agreement of the party provides for waiver of discharge under this section either specifically or by general language indicating that parties waive defenses based on suretyship or impairment of collateral.

SB358, s. 10 Section 10. The unnumbered subchapter title preceding 404.101 of the statutes is renumbered subchapter I (title) of chapter 404.

SB358, s. 11 Section 11. 404.101 of the statutes is repealed.

SB358, s. 12 Section 12. 404.102 of the statutes is amended to read:

SB358,66,6 404.102 Applicability. (1) To the extent that items within this chapter are also within the scope of chs. 403 and 408, they are subject to the provisions of those chapters. In the event of If there is conflict the provisions of, this chapter govern those of governs ch. 403, but the provisions of ch. 408 govern those of governs this chapter.

SB358,66,11 (2) The liability of a bank for action or nonaction with respect to any an item handled by it for purposes of presentment, payment or collection is governed by the law of the place where the bank is located. In the case of action or nonaction by or at a branch or separate office of a bank, its liability is governed by the law of the place where the branch or separate office is located.

SB358, s. 13 Section 13. 404.103 of the statutes is amended to read:

SB358,66,20 404.103 (title) Variation by agreement; measure of damages; certain action constituting ordinary care. (1) The effect of the provisions of this chapter may be varied by agreement except that no agreement can , but the parties to the agreement cannot disclaim a bank's responsibility for its own lack of good faith or failure to exercise ordinary care or can limit the measure of damages for such the lack or failure; but. However, the parties may determine by agreement determine the standards by which such the bank's responsibility is to be measured if such those standards are not manifestly unreasonable.

SB358,66,23 (2) Federal reserve regulations and operating letters circulars, clearinghouse rules, and the like, have the effect of agreements under sub. (1), whether or not specifically assented to by all parties interested in items handled.

SB358,67,3 (3) Action or nonaction approved by this chapter or pursuant to federal reserve regulations or operating letters constitutes circulars is the exercise of ordinary care and, in the absence of special instructions, action or nonaction consistent with clearinghouse rules and the like or with a general banking usage not disapproved by this chapter, is prima facie constitutes the exercise of ordinary care.

SB358,67,6 (4) The specification or approval of certain procedures by this chapter does not constitute is not disapproval of other procedures which that may be reasonable under the circumstances.

SB358,67,11 (5) 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 that could not have been realized by the use exercise of ordinary care, and where. If there is also bad faith it includes any other damages, if any, suffered by the party suffered as a proximate consequence.

SB358, s. 14 Section 14. 404.104 (1) (intro.) and (a) to (f) of the statutes are amended to read:

SB358,67,14 404.104 (1) (intro.) In this chapter, unless the context otherwise requires:

SB358,67,18 (a) "Account" means any deposit or credit account with a bank and includes a checking, time, interest or savings account;, including a demand, time, savings, passbook, share draft or like account, other than an account evidenced by a certificate of deposit.

SB358,67,19 (b) "Afternoon" means the period of a day between noon and midnight ;.

SB358,67,21 (c) "Banking day" means that the part of any a day on which a bank is open to the public for carrying on substantially all of its banking functions ;.

SB358,67,23 (d) "Clearinghouse" means any an association of banks or other payors payers regularly clearing items;.

SB358,68,3 (e) "Customer" means any a person having an account with a bank or for whom a bank has agreed to collect items and includes, including a bank carrying that maintains an account with at another bank;.

SB358,68,9 (f) "Documentary draft" means any negotiable or nonnegotiable draft with accompanying documents, securities or other papers to be delivered against honor of the draft; a draft to be presented for acceptance or payment if specified documents, certificated securities or instructions for uncertificated securities, or other certificates, statements or the like are to be received by the drawee or other payer before acceptance or payment of the draft.

SB358, s. 15 Section 15. 404.104 (1) (g), (h) and (j) of the statutes are renumbered 404.104 (1) (i), (j) and (k) and amended to read:

SB358,68,15 404.104 (1) (i) "Item" means any an instrument for the payment of money even though it is not negotiable but does not include money; or a promise or order to pay money handled by a bank for collection or payment. "Item" does not include a payment order governed by ch. 410 or a credit or debit card slip.

SB358,68,18 (j) "Midnight deadline" with respect to a bank is midnight on its next banking day following the banking day on which it receives the relevant item or notice or from which the time for taking action commences to run, whichever is later ;.

SB358,68,21 (k) "Settle" means to pay in cash, by clearinghouse settlement, in a charge or credit or by remittance, or otherwise as instructed agreed. A settlement may be either provisional or final;.

SB358, s. 16 Section 16. 404.104 (1) (g) and (h) of the statutes are created to read:

SB358,68,24 404.104 (1) (g) "Draft" means a draft as defined in s. 403.104 (5), or an item, other than an instrument, that is an order.

SB358,68,25 (h) "Drawee" means a person ordered in a draft to make a payment.

SB358, s. 17 Section 17. 404.104 (1) (i) of the statutes is repealed.

SB358, s. 18 Section 18. 404.104 (1) (k) of the statutes is renumbered 404.104 (1) (L).

SB358, s. 19 Section 19. 404.104 (2) (a) to (e) of the statutes are renumbered 404.104 (2) (c) to (g), and 404.104 (2) (f), as renumbered, is amended to read:

SB358,69,5 404.104 (2) (f) "Payor "Payer bank" — s. 404.105.

SB358, s. 20 Section 20. 404.104 (2) (a), (b) and (h) of the statutes are created to read:

SB358,69,7 404.104 (2) (a) "Agreement for electronic presentment" — s. 404.110 (1).

SB358,69,8 (b) "Bank" — s. 404.105 (1).

SB358,69,9 (h) "Presentment notice" — s. 404.110 (1).

SB358, s. 21 Section 21. 404.104 (2) (f) of the statutes is repealed.

SB358, s. 22 Section 22. 404.104 (3) (a) of the statutes is amended to read:

SB358,69,12 404.104 (3) (a) "Acceptance" — s. 403.410 403.409 (1).

SB358, s. 23 Section 23. 404.104 (3) (b), (d), (f), (g) and (h) of the statutes are renumbered 404.104 (3) (d), (f), (h), (j) and (n), and 404.104 (3) (j) and (n), as renumbered, are amended to read:

SB358,69,16 404.104 (3) (j) "Notice of dishonor" — s. 403.508 403.503.

SB358,69,17 (n) "Presentment" — s. 403.504 403.501 (1).

SB358, s. 24 Section 24. 404.104 (3) (b), (c), (e), (g), (i), (k) to (m) and (p) to (s) of the statutes are created to read:

SB358,69,20 404.104 (3) (b) "Alteration" — s. 403.407 (1).

SB358,69,21 (c) "Cashier's check" — s. 403.104 (7).

SB358,69,22 (e) "Certified check" — s. 403.409 (4).

SB358,69,23 (g) "Good faith" — s. 403.103 (1) (d).

SB358,69,24 (i) "Instrument" — s. 403.104 (2).

SB358,69,25 (k) "Order" — s. 403.103 (1) (f).

SB358,70,1 (L) "Ordinary care" — s. 403.103 (1) (g).

SB358,70,2 (m) "Person entitled to enforce" — s. 403.301.

SB358,70,3 (p) "Promise" — s. 403.103 (1) (i).

SB358,70,4 (q) "Prove" — s. 403.103 (1) (j).

SB358,70,5 (r) "Teller's check" — s. 403.104 (8).

SB358,70,6 (s) "Unauthorized signature" — s. 403.403.

SB358, s. 25 Section 25. 404.104 (3) (c), (e), (i) and (j) of the statutes are repealed.

SB358, s. 26 Section 26. 404.104 (4) of the statutes is amended to read:

SB358,70,10 404.104 (4) In addition, ch. 401 contains general definitions and principles of construction and interpretation applicable throughout this chapter.

SB358, s. 27 Section 27. 404.105 (intro.) of the statutes is amended to read:

SB358,70,15 404.105 (title) "Depositary bank"; "intermediary bank" "Bank"; "collecting bank"; "payor "depository bank"; "intermediary bank"; "payer bank"; "presenting bank"; "remitting bank". (intro.) In this chapter unless the context otherwise requires:

SB358, s. 28 Section 28. 404.105 (1) to (5) of the statutes are renumbered 404.105 (2) to (6) and amended to read:

SB358,70,19 404.105 (2) "Collecting bank" means any a bank handling the an item for collection except the payor payer bank;.

SB358,70,22 (3) "Depositary bank" means the first bank to which take an item is transferred for collection even though it is also the payor payer bank;, unless the item is presented for immediate payment over the counter.

SB358,70,24 (4) "Intermediary bank" means any a bank to which an item is transferred in course of collection except the depositary or payor payer bank;.

SB358,71,2 (5) "Payor "Payer bank" means a bank by which an item is payable as drawn or accepted; that is the drawee of a draft.

SB358,71,4 (6) "Presenting bank" means any a bank presenting an item except a payor payer bank;.

SB358, s. 29 Section 29. 404.105 (1) of the statutes is created to read:

SB358,71,8 404.105 (1) "Bank" means a person engaged in the business of banking, including a savings bank, savings and loan association, credit union or trust company.

SB358, s. 30 Section 30. 404.105 (6) of the statutes is repealed.

SB358, s. 31 Section 31. 404.106 to 404.108 of the statutes are renumbered 404.107 to 404.109 and amended to read:

SB358,71,15 404.107 Separate office of a bank. A branch or separate office of a bank is a separate bank for the purpose of computing the time within which and determining the place at or to which action may be taken or notices or orders shall must be given under this chapter and under ch. 403.

SB358,71,20 404.108 Time of receipt of items. (1) For the purpose of allowing time to process items, prove balances and make the necessary entries on its books to determine its position for the day, a bank may fix an afternoon hour of 2 p.m. or later as a cut-off cutoff hour for the handling of money and items and the making of entries on its books.

SB358,71,23 (2) Any An item or deposit of money received on any day after a cut-off cutoff hour so fixed or after the close of the banking day may be treated as being received at the opening of the next banking day.

SB358,72,5 404.109 Delays. (1) Unless otherwise instructed, a collecting bank in a good faith effort to secure payment may, in the case of a specific items item drawn on a payer other than a bank, and with or without the approval of any person involved, may waive, modify or extend time limits imposed or permitted by chs. 401 to 411 for a period not in excess of an exceeding 2 additional banking day days without discharge of secondary parties and without drawers or endorsers or liability to its transferor or any a prior party.

SB358,72,11 (2) Delay by a collecting bank or payor payor bank beyond time limits prescribed or permitted by chs. 401 to 411 or by instructions 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 provided it and the bank exercises such diligence as the circumstances require.

SB358, s. 32 Section 32. 404.106 of the statutes is created to read:

SB358,72,17 404.106 Payable through or payable at bank; collecting bank. (1) If an item states that it is "payable through" a bank identified in the item, the item designates the bank as a collecting bank and does not by itself authorize the bank to pay the item and the item may be presented for payment only by or through the bank.

SB358,72,21 (2) If an item states that it is "payable at" a bank identified in the item, the item designates the bank as a collecting bank and does not by itself authorize the bank to pay the item and the item may be presented for payment only by or through the bank.

SB358,72,23 (3) If a draft names a nonbank drawee and it is unclear whether a bank named in the draft is a codrawee or a collecting bank, the bank is a collecting bank.

SB358, s. 33 Section 33. 404.109 of the statutes is repealed.

SB358, s. 34 Section 34. 404.110 of the statutes is created to read:

SB358,73,7 404.110 Electronic presentment. (1) "Agreement for electronic presentment" means an agreement, clearinghouse rule or federal reserve regulation or operating circular, providing that presentment of an item may be made by transmission of an image of an item or information describing the item ("presentment notice") rather than delivery of the item itself. The agreement may provide for procedures governing retention, presentment, payment, dishonor and other matters concerning items subject to the agreement.

SB358,73,9 (2) Presentment of an item pursuant to an agreement for electronic presentment is made when the presentment notice is received.