Aрpellant Winston D. Peters, the personal representative of the Estate of Rho-na Graves, appeals from the trial court’s grant of summary judgment against his claims of breach of contract, negligence, and violations of the Electronic Funds Transfer Act (“EFTA”). Appellant claimed that appellee Riggs Bank permitted unauthorized withdrawals in the amount of $131,278.61 from his mother’s account despite the fact that she had been incapacitated and later died while most of the transactions occurred. Riggs. Bank deniеd liability, but further asserted that appellant’s claims were untimely. We agree that appellant’s claims are time-barred. Thus, we affirm.
I.
On October 31, 1980, Rhona Graves opened a checking account at Riggs Bank. Graves entered into a customer agreement with Riggs, which included adoption of Riggs’s Rules and Regulations that covered the checking account, and executed a signature card. Graves later opened a savings account with Riggs on October 3, 1986. This account was also governed by Riggs’s Rules and Regulations. 1
At some point prior to June of 2002, Ms. Graves won a substantial amount of money in the lottery. She deposited her lump sum payment into her accounts at Riggs Bank. However, on June 8, 2002, Ms. Graves suffered a serious stroke and was hospitalized. She lost the ability to communicate. She was later transferred to a nursing home where she remained in a seriously ill condition until she died on November 9, 2002.
Between May and December of 2002, someone withdrew money from Ms.
During the 153-day period from Ms. Graves’s stroke until her death, there were 73 ATM withdrawals from her account, including 72 of them at the $500.00 daily limit for withdrawals. Then, 21 additional withdrawals were made during the 41 days after Ms. Graves died, including 19 at the $500 maximum. All together, $46,547.00 was withdrawn from the account, including $10,159.50 after her death. Also, during this time, 128 checks were written, resulting in her account being debited $84,731.61. 2 According to appellant, the signature on checks provided back to him does not match his mother’s authorized signature on file with the bank. Six of the checks (totaling $62,000) were made out to his mother’s sister, and another check was written to her daughter. Appellant asserts that during the time period of Ms. Graves’s critical illness, she did not have the capacity to review bank statements, and that in any event, there is no evidence that she received any bank statements at the hospital.
After Ms. Graves died in November of 2002, appellant petitioned for letters of administration in January 2003 and received authority to open Ms. Graves’s safety deposit box. In January 2003, appellant inspected the safety deposit box and disсovered that his mother had won the lottery. 3 At that time, her accounts showed balances of $2,174.18 and $159.81. On March 10, 2003, Riggs issued a check to appellant, payable to the Estate of Rhona Graves, in the amount of $2,301.12 — the remaining account balance.
Appellant tried to track down the amount and location of the proceeds of Mrs. Graves’s lottery winnings. He was finally appointed personal representative of the estate on April 2, 2003. Also in April, appellant discovered a Riggs bank statement from August 13, 2002 through Seрtember 12, 2002, showing that Ms. Graves’s account had held $92,187.45, but closed at the end of the period with only $58,935.98. On April 16, 2003, appellant (through counsel) wrote Riggs Bank requesting more information about Ms. Graves’s account. Appellant claims he had no basis for asserting that Riggs Bank had done anything improper at that time. On May 28, 2003, Riggs responded by providing appellant’s counsel with copies of some account statements and other records and informed him that Riggs was still in the process of gathering further information. Riggs provided more documents on June 4, 2003. 4
On Friday, October 14, 2005, the Honorable Michael L. Rankin held a hearing on the summary judgment motion. At the hearing, Judge Rankin, in the absence of evidence to the contrary, accepted the representations of Riggs Bank that it had sent monthly account statements to Ms. Graves, and that neither she nor appellant had notified the Bank of any unauthorized transactions in a timely manner. Judge Rankin ruled:
In my view the defendant has the better of this argument and that it would be against the Uniform Commercial Code as applied in this case to hold the bank responsible for the loss of this money when they were sending notices of the monthly transactions, as they were required to do under their cоntract, to the only address that they had.
In. light of my view that that is the correct application of the law in this case, I’m going to enter summary judgment in favor of the defendant.
The court subsequently issued a one-page order, granting defendant’s motion for summary judgment on all claims. This appeal followed.
II.
Summary judgment is appropriate if, when viewing the record in the light most favorable to the non-moving party, there are no genuine issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law. Super. Ct. Civ. R. 56(c);
see also Abdullah v. Roach,
A. Unauthorized Checks.
Articles 3 and 4 of D.C. Code, Commercial Law and Transactions (“U.C.C.”) apply to negotiable instruments, including checks.
See
D.C.Code § 28:3-102(a) (2001); D.C.Code § 28:3-104 (2001). Thus, the U.C.C. governs the disposition of the unauthorized checks in this case. Under the U.C.C., a person is not liable for a negotiable instrument unless he or she signed it.
See
D.C.Code § 28:3-401 (2001). However, D.C.Code § 28:4-406 imposes upon bank customers a duty to discover and report unauthorized signatures or alterations to the bank.
5
Without regard to care or lack of care of either the customer or the bank, a customer who does not within one year after the statement or items are made available to the customer (subsection (a) of this section) discover and report the customer’s unauthorized signature on or any alterаtion on the item is precluded from asserting against the bank the unauthorized signature or alteration. If there is a preclusion under this subsection, the payor bank may not recover for breach of warranty under section 28:4-208 with respect to the unauthorized signature or alteration to which the preclusion applies.
D.C.Code § 28:4 — 406(f). 6
Other jurisdictions have consistently characterized this U.C.C. provision as a statute of repose, as opposed to a statute of limitations.
See Jensen v. Essexbank,
We must next determine whether Riggs Bank permissibly shortened the length of the statute of repose from D.C.Code § 28:4-406ffl’s provision of one-year to a period of sixty days. The U.C.C. establishes that contracting parties may vary U.C.C. terms by contract:
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.
D.C.Code § 28:4-103(a) (2001). Further, this court has noted that “ ‘[t]he relationship between a bank and a depositor is a contractual relationship that is governed
Your statement is considered correct, and we [Riggs Bank] will not be liable for payments made and charged to your account ... unless you notify us of an error, including ... unauthorized payment or other irregularity within (a) sixty (60) calendar days ... of the mailing date of the earliest statement describing the charge or deposit to your account.
Thus, following the terms of the contract, Ms. Graves had sixty days from the mailing of her account statements to discover and report unauthorized transаctions.
Appellant contends that Riggs’s shortening of the period to sixty days is invalid as it provides too short a period of time for a person to discover and report problems in their account, or alternatively, it effectively excuses the bank from exercising due care. However, a review of other jurisdictions reveals that courts have consistently upheld the contractual shortening of the notice provision to periods of sixty days or shorter.
See, e.g., National Title Ins. Corp. Agency, supra,
Appellant, however, contends that the statutory notice provision should be tollеd in this case because of Ms. Graves’s incapacitation and subsequent death and because appellant did not discover the unauthorized transactions until months after his mother’s death. In essence, appellant asks this court to read a discovery rule into D.C.Code § 28:4-406(f) that would permit equitable tolling of the
Courts have applied this statutory bar even in cases where the result is harsh. In
Siecinski v. First State Bank of East Detroit,
Courts of other jurisdictions have held that the subsection is not a limitаtion statute subject to tolling under compelling circumstances but is a statutory prerequisite of notice that absolutely bars a customer’s right to make a claim against the bank after one year without regard to the care or lack of care of either the customer or the bank.
Id. The court further concluded that the statutory provision barred all causes of action-thus, appellant’s negligence claim failed as well. Id. at 770-71.
Courts have applied this reasoning against mentally incompetent plaintiffs as well. In
Brown v. Cash Mgmt. Trust of Am.,
These principles have also been applied in a number of fraud cases where the party forging checks intercepted bank statements — thus preventing the account holder from actually receiving the statements and reporting any errors. In
Stowed v. Cloquet Co-op Credit Union,
The modern U.C.C. case law of other jurisdictions is virtually unanimous in holding that, once account statements are mailed to the account holder’s proper address, the risk of nonreceipt falls on the account holder and interception of the statements by a wrongdoеr does not reheve the account holder of the duty to examine the statements and report unauthorized items to the bank.
Id.
at 571-72;
see also id.
at 568-69 (pointing out that the credit union processed roughly one million transactions a day, and thus provided monthly account statements, rather than manually checking individual signature cards). The court further noted that requiring actual receipt of the statements (which would be the result of placing the risk of non-receipt on the bank) “would place unreasonable financial burdens on banks and othеr financial institutions by forcing them to prove receipt either through the use of certified mail or by individually contacting each account holder to confirm that they had, in fact, received their account statement.”
Id.
at 572. Other courts have reached the same conclusion.
See, e.g., Borowski v. Firstar Bank Milwaukee, N.A.,
These courts based their decisions on the underlying policies of the Uniform Commercial Code: encouraging the efficiency and finality of transactions through a uniform and predictable application of the law.
See, e.g., Brown, supra,
963
Appellant urges the court to accept an exception carved out by a California appellate court. In
Mac v. Bank of Am.,
B. ATM Withdrawals.
Appellant’s claim seeking recovery for over $46,000.00 in money allegedly withdrawn without authorization from Ms. Graves’s checking account through ATMs also fails. The Electronic Funds Transfer Act (“EFTA”), codified at 15 U.S.C. § 1693
et seq.
controls this claim. EFTA creates a cause of action for consumers: “any person who fails to comply with any provision of [EFTA] with respect to any consumer ... is hable to such consumer....” 15 U.S.C. § 1693m(a). Appellant сlaimed that Riggs violated EFTA by refusing to refund the withdrawn funds and by its failure to provide a timely report of investigation into the withdrawals.
See
15 U.S.C. § 1693g (a) (limiting the amount of consumer liability for unauthorized transactions); 15 U.S.C. § 1693f (EFTA’s error resolution provision). However, EFTA contains a one-year statute of limitations period: “Without regard to the amount in controversy, any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.” 15 U.S.C. § 1693m (g). Although thе discovery rule could apply to this claim, the statute of limitations begins to run from the date of notice of the injury.
See Ehrenhaft, supra,
Accordingly, the decision of the trial court is
Affirmed.
Notes
. Relevant to this appeal is the following provision:
Your statement is considered correct, and we [Riggs Bank] will not be liable for payments made and charged to your account ... unless you notify us of an error, including ... unauthorized payment or other irregularity within (a) sixty (60) calendar days ... of the mailing date of the earliest statement describing the charge or deposit to your account.
.Appellant, however, concеded that some of the payments made went to pay off valid debts of his mother. Further, he conceded that he could not be certain that, at least in regard to some transactions, the payments were unauthorized.
. Appellant also discovered a will, which appointed him executor of the estate and listed him and his brother (and not his mother’s sister) as beneficiaries.
. Appellant’s brief states that Riggs sent documents on June 4, 2004. Given the chronology, it is likely he meant June 4, 2003.
. The rationale for this U.C.C. provision is to allocate the burden of discovering forgeries to the party best able to detect the forgery: customers are more familiar with their own signatures and transactions than a financial institution that may process thousands of
. With respect to the one year statute of repose in § 28:4-406(0, the period precluding claims for all fraudulent checks written by the same wrongdoer begins to run from the date of the first fraudulent check, rather than a separate period of repose for each fraudulent check. See D.C.Code § 28:4-406, сmt. 2 (for Section 28:4-406(d)(2)) ("If the payment of subsequent items occurred after the customer had a reasonable time (not exceeding 30 days) to report with respect to the first item and before the bank received notice of the unauthorized signature [] of the first item, the customer is precluded from asserting the alteration or unauthorized signature with respect to the subsequent items.”).
. Although other courts have approved of shorter contractual notice periods,
see, e.g., Stowell v. Cloquet Co-op Credit Union,
. This reasoning is also reflected in Black’s Law Dictionary: " 'statutes of limitations' extinguish, after [a] period of time, [the] right to prosecute accrued cause[s] of action; [a] ‘statute of repose,’ by contrast, limits potential liability by limiting [the] time during which cause of action can arise. It is distinguishable from [a] statute of limitations, in that [a] statute of repose cuts off right of action after [a] specified time measured from delivery of product оr completion of work, regardless of time of accrual of cause of action or of notice of legal rights.” Black's Law Dictionary 1411 (6th ed. 1990).
. Similar to the notice provision for checks, EFTA excuses the Bank from liability for unauthorized withdrawals where the consumer fails to report the loss in a timely manner. See 15 U.S.C. § 1693g (a) ("[R]eimbursement need not be made to the consumer for losses the financial institution establishes would not have occurred but for the failure of the consumer to report within sixty days of transmittal of the statement (or in еxtenuating circumstances such as extended travel or hospitalization, within a reasonable time under the circumstances) any unauthorized electronic fund transfer or account error which appears on the periodic statement provided to the consumer under section 906 [15 USCS § 1693d].”). Though this notice provision includes the language regarding extenuating circumstances, this does not help appellant in this case. As noted above, the separate statute of limitations had already run and there is no such extenuating circumstances provision in § 1693m (g).