This month, for a change of pace, we are bringing you a LAWCHEK™ ALERT! from our partner and legal site Lawchek.com. This article reviews the questionable changes that have occurred relative to bank "holds" on customer deposits. These changes can effect everyone from the individual customer to the small business owner.

CUSTOMER DEPOSITS: ILLEGITIMATE REVENUE STREAM FOR BANKS?
Richard A. Pundt, Attorney at Law

For quite some time now, certain banks and other financial institutions may have been profiting from what some members of Congress are calling an illegitimate revenue stream, namely, the deposits of its' customers. Today, many banks will place “holds” on customer deposits. Such customer deposit “holds” are for ten business days and usually translate into a ½ month use of the funds deposited; In this way, banks are able to benefit from the interest on customer funds. This questionable practice has caused outrage by depositors and has ignited the concern of key members of Congress.

Congressman Michael Oxley (R-Ohio) has stated: “Holding a deposit to ensure its safety and soundness is reasonable. But holding a deposit in order to profit from the interest is completely unacceptable. The latter practice prevents consumers from realizing the benefits of their own assets, while creating an illegitimate revenue stream for financial institutions. It unfairly penalizes consumers and should be eliminated from the U.S. payment system.” 1

From an analysis in a report by Ms. Laura Bruce of www.Bankrate.com, it is revealed that there are many concerns relative to the new federal enactment of the Check 21 Act. "Check 21" allows the checks that individuals write to clear within one to two days while the deposit may be held by a bank for up to ½ month when weekends are added to the allowable ten day hold under “exceptional” circumstances of the FED Regulations. As a result, the consumer may get “nailed” for overdraft charges if the consumer was counting on the deposit and, in addition, the banks have been keeping the interest on the funds “held” through the deposit delay. Ms. Bruce also notes in her article 2 that Congresswoman Carolyn Maloney (D-New York) has introduced HR 5410 that would “…redress imbalances between the faster withdrawals permitted under the Check 21 Act and the slower rates for crediting deposits.”

Examples of bank customers delays due to the banks “hold” practices is very wide-spread and, undoubtedly, has accounted for hundreds of millions of dollars worth of profits for banks. Consumers, realtors, businessmen, and attorneys are becoming increasingly aware of these practices by the banks. This author has encountered quite a number of reported instances where consumers experienced an improper deposit delay or hold for an unreasonable period of time.

Of the many instances reported to this author, there are three that merit review in regard to the issue of deposit “holds.” The first instance involved a very well-respected attorney who deposited over $200,000 into his attorney trust account at a well-known bank and was verbally informed, after the deposit had been made, that there would be a ten business day “hold” on the deposit. He did not receive any written notice as prescribed by Federal Reserve Regulation CC (Availability of Funds and Collection of Checks, 12 CFR 229). This particular attorney had never over-drafted his account and has always maintained a sterling reputation with the Bar, as well as other attorneys. Moreover, the deposit consisted of checks from State Farm Mutual Ins. and John Deere Inc. The attorney directed a hand delivered correspondence to this well-known bank, wherein he requested an immediate removal of the “hold” or, in the alternative, an explanation as to whether the bank in question believed that checks from either State Farm Mutual Ins. or John Deere Inc. would not clear or if there was any improper activity by State Farm Mutual Ins. or John Deere Inc. in regard to: (a) any suspected criminal activity, (b) any suspected money laundering, (c) any suspected terrorist activity, or (d) any other improper activity that would mandate the holding of either check. Needless to say, the bank could not accuse either State Farm Mutual Ins. or John Deere Inc. of any such activity, yet the bank continued its “hold” on the deposit to the trust account from December 7, 2005 until December 20, 2005. The attorney has never received a written or an oral explanation, as he requested in writing, for the hold as prescribed by Federal Reserve Regulation CC (12 CFR 229).

The second instance involved a well-respected realtor who deposited between $200,000-$300,000, as a result of a closing, into his account at the aforementioned bank. He was unaware of any “hold” on the deposit. The realtor issued various checks, as customary, to: other financial institutions, the seller, realtors, an insurance company, taxing authorities, and others. When the bank in question refused to release its “hold,” the realtor’s checks bounced and a significant amount of distress and embarrassment was the result for all parties concerned, except, of course, the bank that profited in two ways: from the interest on the deposit and from the overdraft charges.

The third, but surely not final, instance involved a party who received a Cashier’s Check from a centrally located and well-known bank and, on the same day, deposited the Cashier’s Check into an account at a branch of the same bank. The branch placed a “hold” on its' own main bank’s Cashier’s Check. What is especially interesting about this case, other than the fact that it was the bank’s own Cashier’s Check, is the fact that under Federal Reserve Regulation CC (12 CFR 229), a Cashier’s Check, as well as a check drawn on an account held by the same institution, must be made available on the first business day following the day of deposit.

It would seem that compliance with Federal Reserve Regulation CC (12 CFR 229) is being ignored by several of the largest banks. According to the article by Ms. Bruce, as noted above, proposed legislation HR 5410 has been presented in Congress to benefit the consumer. The legislation is being introduced in order to counter the Check 21 Act that allows the checks written by consumers to clear faster than the actual deposits made at the banks. It is noted in the article that Representatives from Wells Fargo Bank and Wachovia Bank have stated that their banks place holds on less than one percent of all deposits. If one were to consider the dollar magnitude of that one percent, especially if such deposits are for more than $5,000, a substantial windfall of interest profits are the likely result for the banks placing the “hold.” Perhaps the one percent accounts for hundreds of thousands of deposits each day and, if the average dollar amount of such deposit is $10,000 (most likely it is much more), the money on hold by the large banks at any one time would be in the hundreds of millions of dollars for which the banks gain interest on consumers assets, as noted by Congressman Oxley.

Under the Federal Reserve Regulation CC (12 CFR 229), it is mandated that interest should be paid to the consumer (See Regulation CC (12 CFR 229.14)). It is, therefore, understandable why Congressman Oxley has stated that such practice by the banks “…prevents consumers from realizing the benefits of their own assets, while creating an illegitimate revenue stream for financial institutions."

Under Federal Reserve Regulation CC (12 CFR 229), the following deposits must be made available on the first business day following the banking day of deposit: (1) Cash, (2) Electronic Payments, (3) U.S. Treasury Checks, (4) U. S. Postal Service Money Orders, (5) Federal Reserve Bank and Federal Home Loan Bank Checks, (6) State or Local Government Checks, (7) Cashier’s, Certified or Teller’s Checks, (8) Checks drawn on an account held by the same institution upon which the check is drawn, and (9) the first $100, or if less than $100 the entire amount, of all other checks. In the case of the individual who had deposited a Cashier’s Check into an account that was held by the same bank upon which it was drawn, both subsection 7 and subsection 8, as noted above, were ignored.

On other deposits that are not listed above, including the proceeds of local and non-local checks, the checks must generally be made available for withdrawal by the second and fifth business day respectfully following the deposit (See Regulation CC (12 CFR 229.12)). In the case of the attorney, and in the case of the realtor, as noted above, if the deposited checks were local, the deposit should have been credited within two days, and if the checks were non-local, the checks should have been credited within five days. There should not have been an arbitrary hold for ten business days or a ½ month total hold on the deposits.

However, there are exceptions set forth under Regulation CC (12 CFR 229.13), and those exceptions involve: new accounts,3 large deposits, repeatedly overdrawn accounts, or emergency conditions. The only exception of the above examples involving the attorney or the realtor, as given, would be the exception of a large deposit since our investigation ruled out any other scenario. In the case of large deposits, the bank must provide a notice to the consumer (See Regulation CC (12 CFR 229.13)), and that notice must be in writing (See Regulation CC (12 CFR 229.15), (12 CFR 229.16), (12 CFR 229.17) and (12 CFR 229.18)). Additionally, and under Regulation CC (12 CFR 229.14), interest must be paid on interest bearing accounts no later than the day the bank receives credit for the funds deposited.

It would appear that certain banks may be circumventing the requirements of Federal Reserve Regulation CC (12 CFR 229), and that is undoubtedly one of the reasons that Congressman Oxley has expressed concern, and why Congresswoman Maloney is reintroducing HR 5410. As a practical matter, most customers drop the issue once they actually receive their funds, which have been held by the bank, because they wish to maintain a good standing relationship with the bank. So does that mean that nothing can be done? The answer is no. Something can be done, but it requires positive action by the customer.

First, the customer may file a complaint with the Federal Reserve at: The Board of Governors of the Federal Reserve System, Division of Consumer and Community Affairs at 20th and C Streets, N.W., Stop 801, Washington, DC 20551. Additionally, the consumer may file a complaint with the respective State Banking Commissioner in the state where the violation occurs. Also, contacting the proper parties within Congress, such as Congressman Michael Oxley (R-Ohio) or Congresswoman Carolyn Maloney (D-New York).

Finally, there is a civil remedy expressly set forth under Federal Reserve Regulation CC (12 CFR 229.21). The civil remedy allows for both individual and class actions. See Regulation 12 CFR 229.21 (a) (2) (i) and (ii). The statute provides a limitation on class actions that includes actual damages up to $500,000 or 1% of the net worth of the bank involved (the lesser of the two) plus costs and attorney fees.

Welcome back to Rocky’s Corner! Last month we started Part 6(a 2 part Spring) of an 8 part series of Preventive Maintenance Tips for your Home. This month we will conclude our Spring season tips.

Every Spring-Part B

EXTERIOR CAULKING:

• Inspect caulking and replace if deteriorating.

FLASHING:

• Check flashings around all surface projections and sidewalls; replace if necessary.

GUTTERS AND DOWNSPOUTS:

• Clear/install/repair gutters and downspouts and make sure the runoff is directed away from your home so it can’t erode the soil around the foundation or run into your basement or crawl space.
• Install gutter accessories to divert water, channel underground drain lines into existing yard drainage or storm sewers, or consider installing a dry well at the end of the drainpipe to slowly distribute the water to surrounding soil.

LANDSCAPING:

• Clean out the flowerbeds, removing fallen leaves and blossoms to avoid potential fungus and molds.
• Cut back and trim all vegetation and overgrown bushes from structures.
• Trim non-fruit trees before they start to grow and both fruit trees and Rose bushes before they start to bud to improve their production.
• Consider a lawn renovation to eliminate the brown spots and crab grass left over from last summer and reseed bare spots. Contact a county extension service or gardening service for advice about proper lawn and garden care for your area.
• For all of the above items, a prescreened pro may be your best bet. PIPES: Remove insulation around outdoor water pipes. Check for leaking around the outside hose bibs and evidence of rust or a white line deposit that may indicate a leak is starting.

ROOFS:

• Inspect roof surface for warping, aging, moss, and cracking, making sure that shingles, shakes or tiles are sound; repair or replace as needed.
• Inspect the flashing around chimneys, skylights and vents.
• Seal cracks or openings where water could penetrate.
• If you see significant damage or wear, contact a roofing specialist to give you a bid on a roof replacement.
• Check eaves, and soffit for signs of water damage or deteriorating paint.
• Repair, repaint or consider wrapping with maintenance-free vinyl or aluminum soffit and fascia.

SIDING:

• Inspect siding (especially on the south and storm sides of the house) for evidence of deterioration, including cracks, splintering, decay, and insect damage; clean, treat and repair as needed.
• Remember, paint protects wood and stucco surfaces; postponing necessary painting will require more extensive and expensive preparation (scraping, sanding, and priming) and repairs before repainting in the future.

1. Brick and stone: check joints between wood and masonry. Waterproof, repair or repaint if necessary.
2.  Wood: look for lifting or peeling paint, splitting wood or areas where the wood grain is separating or “checking” because water is getting into the siding.
3.  Stucco: a chalky residue that rubs off on your hand is evidence of oxidation, a deterioration of paint or color coat that reduces stucco’s insulating value. If the stucco is cracked, this allows water to get in around windows and doors. If this is the case, have your stucco professionally repaired.
4. Trim: look for peeling paint on the fascia boards, window sills and sashes that could allow water in to form mildew and fungus on the interior of your home behind curtains, blinds and window coverings. Consider installing maintenance-free vinyl or aluminum trim.

SPRINKLERS:

• Check lawn sprinkler system for broken heads, leaky valves and exposed lines and contact a sprinkler service if necessary.

WATER WELL:

• Consider having well water tested for safety. Join me next month for our final Part of our series on Preventive Maintenance Tips for your Home. Visit us at www.freminshomeimprovement.com

Q Our home inspector reported that three windows in our 9 year old house had fogging insulated panes, and he suggested that we contact the builder or manufacturer for warranty information. We contacted the manufacturer who sent a man out, but he said that only two of the windows were fogged. When we called the inspector, he said that insulated windows will fog only under certain conditions, and that we look at the windows at the same time of day that they were inspected. Is our inspector a bit foggy in the head?

A It has been my experience that insulated window panes, when the seal is broken, will fog only under certain conditions. The two pieces of glass in a double-pane window have an inert gas between them which is held in place by a seal. This thin space of gas is what allows the windows to slow down the transmission of heat or cold. When this seal is compromised, ordinary air is allowed to enter, and moisture may condense on the inside surfaces of the glass. These types of windows are most likely to fog on a winter morning a short time after the sun hits them. The outside of the window has been cold overnight, and the inside has been warm. When the sun hits the cold outer glass, moisture condenses and the foggy appearance occurs. A few hours later, as the temperatures stabilize, the fog may disappear altogether. In this case, the inspector was correct to suggest that the windows be inspected under the same conditions. In the case of your 9 year old house, your windows may still be under warranty. The earlier versions of insulated windows were somewhat prone to failure, but technology has steadily improved, and today’s windows are much more reliable. Warranties have gotten much better as well, so it you have foggy windows, check with the manufacturer to see if you can have them replaced under warranty.

In the course of inspecting a home, I often find open electrical splices in the crawl space and attic, and I cite them in my report. A splice, in layman’s terms, is a connection between two or more wires. These splices are normally made with a small plastic device resembling a thimble that is called a wire nut. The wire nut is twisted onto the wires, and holds them tightly together for a good connection. In accordance with accepted electrical practice, all splices must be inside an approved electrical box with a cover, and this box must be attached to the framing of the house and accessible. These boxes are either metal or plastic. The reason why splices must be inside a covered box is very simple. When electric wires become loose or overloaded, they can get very hot, and, in some cases, throw off sparks. If the wires are out in the open, they can drop sparks onto combustible materials or otherwise cause them to ignite. The electrical box is designed to contain the heat and sparks long enough for a fuse to blow or a breaker to trip. Crawl spaces are not very nice places to work, and the person doing the wiring is probably in a hurry to get out of there, and not interested in going back to place a cover on each box. Open splices are an invitation to disaster, and should be corrected as soon as discovered. If you suspect that your home has open splices in the crawl space or attic, have a qualified electrician correct the problem as soon as possible.

Establishing a maintenance routine How much maintenance and repairs will cost depends on several factors. The age of your home, how well it was maintained by previous owners, weather conditions in your area, and your profit expectations, will all impact how much you spend. In general, homeowners should budget approximately one percent of their home’s value for maintenance and repairs. If you make a habit of putting aside a small amount of money each month to be earmarked specifically for home maintenance, then it will be less painful when unexpected repairs are needed or when appliances must be replaced. Many prospective home buyers will not consider a home that is clearly in need of TLC, even in a hot market. Finishing your “punch list” before contacting a realtor will ensure that you are able to ask the highest price possible for your property. Home insurance Lien holders require that you purchase homeowner’s insurance to cover damages to your property from the elements, fire, accident or theft. Additional coverage may be required for floods, tornados, hurricanes or earthquakes, none of which are covered by the typical policy. If you live in an area threatened by one or more of these, it is recommended that you expand your policy to cover them. Likewise, if you have a large number of valuables in your home, your insurance should reflect that. Weigh the return on investment when making improvements Painting is an obvious way to improve your home’s appearance without spending much money, but what about big-ticket items such as swimming pools, or designer kitchens? It is easy to get carried away when you are decorating your home, but many projects do not add lasting value to your home or guarantee that you’ll recoup your investment. Research what features are hot in your market and consider your expenditures wisely. Keep good records When you buy a car you want to see the maintenance records to make sure the oil was changed on a regular schedule. Why not do the same for your home? Scheduling maintenance on your home and performing regular check-ups of your chimney, mechanical systems, and roofing etc... will ensure problems are fixed before they get out of hand. Check List Items you should routinely inspect are: Grading and drainage. Slope and landscaping need to angle away from your foundation. Sidewalks, driveways, decks and patios. These should also slope aways for your home. Regrading may be required and railings and balusters should be as required by code. Exterior wood. Paint untreated wood, porches, deck columns and fence posts to prevent rot. Doors and windows. Maintain caulking around frames or the money you spend heating and cooling your home will go, quite literally, out the window. Inspect you doors and windows for correct fit, missing caulk, paint, broken glass or cracks. Exterior walls. Check brick and stone for missing mortar which can lead to deterioration from freezing and thawing. Blistering or peeling paint could indicate roof leaks, bad gutters, interior leaks from baths or laundry rooms, etc. Make sure there are no exposed nails or warped boards. Roofing and surface water. Inspect your roof and chimney regularly with binoculars or from a ladder, when safe. Remove debris from gutters, and trim overhanging branches. Make sure to inspect after severe storms and high winds. Garage. Check the door opener to make sure the safety reverse is working. Prime the inside and outside edges and check the rollers, tracks, and weather-stripping several times a year. Walls and ceilings. Don't igonre minor leaks. They are sure to become major ones. Mildew and mold can be indicators of a serious problem. Maintain painted surfaces, inspect grout and caulking around sinks, tubs and showers. Replace missing grout to prevent damage to subsurfaces. Attic. If your attic is accessible, inspect roof sheathing, insulation and moisture barriers. Mechanical systems. Trip circuit breaker every 6 months and ground fault circuit interrupters (GFCIs) every month. Check lamp cords, extension cords and plugs.Test outlets near water for proper polarity and grounding. Most hardware stores carry testers that are inexpensive and easy to use. If fuses blow or breakers trip, have an electrician inspect your wiring. Ask him to make certain GFCIs are installed at any outlet within 6 feet of water. Never work with or near electricity when your hands or feet are wet. Never remove service panel covers. Avoid using extension cords when possible. Never replace blown fuses with larger fuses. Plumbing systems. Know where the turnoff is for your system. Do periodic inspections of toilet tanks to ensure they are not wasting water. Make sure your water heater is performing as outlined in your owner’s manual. Remove sediment that has accumulated at the bottom of the tank. The pressure relief valve at the top of the water heater shoud be opened periodically to see that it is in operating condition. Check all valves in your home from time to time. If corroded, clean them and check for leaks. Water treatment systems. Install a water softner if you have hard water to extend the life of your water heater and pipes. Sump pumps. Periodically check for proper operation. Heating and air conditioning. Service annually. Oil furnaces have parts that must be replaced periodically. Check for leaks, odor and soot. Keep bleaches, paint and other materials sealed and away from the heater. Service air conditioners every spring according to the operating instructions.

Many years ago when I was doing maintenance work for a large property management company, I got a call to look at a clothes dryer that was not working properly. The tenant said that her clothes were just not getting dry no matter how long she ran the dryer. What I found was that the dryer lacked a lint screen, and the flexible vent hose under the house was sagging considerably and had been trapping moisture and lint for a very long time. The more moisture that became trapped in the hose, the more it sagged. The result was that the hose had become completely blocked by an oatmeal-like mixture of lint and moisture. No air could pass through this blockage, and the dryer could not do it’s job. In this case, replacement and proper routing of the vent hose solved the problem. When the proper flow of air is blocked, the clothes dryer has to work harder to dry your clothes, and this could lead to premature failure of the appliance, and in some cases could cause a fire. Whenever you have a home inspection, be sure to ask the inspector to look at the dryer vent hose, and it’s also a good idea to check it at least once a year.