Over the years Strunk has been asked a number of times, “do business accounts that have overdraft privilege have to opt into Reg. E to have their debit card point of sale and ATM transactions covered in the program?” To understand this you must first understand that most consumer protection rules do not apply to deposit accounts held by a business. It is also important to understand that a business-purpose account can be held by a legal entity, such as an LLC or a corporation, or by individuals operating a business themselves as a sole proprietorship.

We need to take a look at Regulation E and break it down regarding this topic. The coverage of Reg. E is stated in section 1005.3(a). It applies to “electronic fund transfers” that debit or credit a “consumer’s account.” Paragraph 1005.2(b) (1) defines an “account” as a consumer asset account established primarily for personal, family, or household purposes. Paragraph 1005.2(e) defines a “consumer” as a natural person. The result is if an individual is using their deposit account for the purposes of operation a sole proprietorship or an account is held by a legal entity, it would not be covered by Reg. E either.

Reg. E coverage means that the “opt-in” for overdraft coverage of debit card point of sale and ATM transactions only applies to consumer accounts. Any application of the concept to other accounts (such as business accounts) is a matter of bank policy and should be addressed in the bank’s deposit account agreement for such accounts.

In 2010 there were changes to the laws and regulations for financial institutions regarding overdraft privilege programs.  Certain Regulation E rules took effect July 1, 2010.  Under these rules, financial institutions must provide notice and reasonable opportunity for customers to opt-in to the payment of automated teller machine (ATM) and one-time point-of-sale (POS) overdrafts provided in exchange for a fee.

Even though this regulation is over 10 years old, there are still misunderstandings from financial institutions regarding the way to present the Reg. E options to consumers, and also the way financial institutions should disclose to their consumers.  Not disclosing Reg. E opt-in correctly to your customers/members could be costly to your institution and also hurt the institutions reputation.  Recently a Bank was hit with $122 million in restitution and penalties to resolve claims that it charged U.S. consumers fees without consent.  The CFPB stated that in some cases the bank required new customers to sign its overdraft notice with the ‘enrolled’ option pre-checked without mentioning the Reg. E service to the consumer.  In other cases the CFPB found that new customers were enrolled in Reg. E without requesting the customer’s oral enrollment decision.

Reg. E opt-in disclosures are highly sensitive matters with regulators and strict compliance is required.  Strunk is the leader in overdraft privilege services and we have a great understanding on how to establish and implement policies and procedures that align with the laws and regulations around Reg. E opt-in. If you have any questions regarding your disclosures or your procedures, reach out to Strunk so we can assist you.