Gerber v. City Nat. Bank of Florida, No. 92-1638

CourtCourt of Appeal of Florida (US)
Writing for the CourtLEVY
Citation619 So.2d 328
Parties18 Fla. L. Week. D1156, 20 UCC Rep.Serv.2d 574 Steven E. GERBER, Appellant, v. CITY NATIONAL BANK OF FLORIDA, Appellee.
Docket NumberNo. 92-1638
Decision Date04 May 1993

Page 328

619 So.2d 328
18 Fla. L. Week. D1156, 20 UCC Rep.Serv.2d 574
Steven E. GERBER, Appellant,
v.
CITY NATIONAL BANK OF FLORIDA, Appellee.
No. 92-1638.
District Court of Appeal of Florida,
Third District.
May 4, 1993.
Rehearing Denied June 22, 1993.

Garry C. Faske, North Miami, for appellant.

Lapidus & Frankel and Robert Frankel, Miami, for appellee.

Before NESBITT, LEVY and GERSTEN, JJ.

LEVY, Judge.

A bank customer appeals the dismissal of his complaint against a bank as being barred by Section 674.406(4), Florida Statutes (1991). Based upon our finding that the one-year time limitation in Section 674.406(4) is a notice requirement, and not a statute of limitations, we reverse.

Steven Gerber had a joint checking account with his mother at City National Bank of Florida. In March of 1992, Gerber filed suit against the bank, seeking to recover for checks allegedly forged on the account between January of 1990 and May of 1990. The bank filed a motion to dismiss, claiming that the suit was barred by Section 674.406(4). Section 674.406(4), which is based upon U.C.C. Section 4-406(4), states:

Without regard to care or lack of care of either the customer or the bank a customer who does not within 1 year from the time the statement and items are made available to the customer (subsection (1)) discover and report his unauthorized signature or any alteration on the face or back of the item or does not within 3 years from that time discover and report any unauthorized indorsement is precluded from asserting against the bank such unauthorized signature or indorsement or such alteration.

Page 329

Specifically, the bank argued that Gerber was barred from recovering because he had not filed suit within one year of the bank making available to Gerber the bank statements which reflected the forged checks. 1 The trial court agreed with the bank, and dismissed the complaint.

On appeal, Gerber argues that Section 674.406(4) is not a statute of limitations, which requires a customer to actually file suit against a bank within the one-year period, but is merely a notice requirement, which must be satisfied in order for a customer to preserve the right to bring suit against the bank at a later time. We agree.

When called upon to interpret a statute, we must give effect to the plain and unambiguous meaning of the words used. Pardo v. State, 596 So.2d 665, 667 (Fla.1992); Holly v. Auld, 450 So.2d 217, 219 (Fla.1984); Fabre v. Marin, 597 So.2d 883, 885 (Fla. 3d DCA 1992). Section 674.406(4) merely requires a customer to "discover and report" an unauthorized signature, or else be "precluded from asserting" liability against the bank. Section 674.406(4) does not...

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5 practice notes
  • Certification from the U.S. Dist. Court for the E. Dist. of Wash. in Travelers Cas. & Surety Co. v. Wash. Trust Bank, No. 92483–0
    • United States
    • United States State Supreme Court of Washington
    • November 3, 2016
    ...as Seattle–First ).13 See also Brown v. Cash Mgmt. Tr. of Am. , 963 F.Supp. 504 (D. Md. 1997); Gerber v. City Nat'l Bank of Fla. , 619 So.2d 328 (Fla. Dist. Ct. App. 1993)(citing cases from numerous jurisdictions in accord).14 RCW 62A.4–406(b)provides:If the items are not returned to the cu......
  • Euro Motors, Inc. v. Southwest Financial Bank and Trust Co., No. 1-97-1014
    • United States
    • United States Appellate Court of Illinois
    • June 1, 1998
    ...Concrete Materials Corp., 938 S.W.2d at 258. Many other jurisdictions have come to the same conclusion. See Gerber v. City National Bank, 619 So.2d 328 (Fla.Dist.Ct.App.1993) (holding that statute imposing duty on customer to discover and report unauthorized Page 715 [231 Ill.Dec. 419] sign......
  • Amer. Airlines Empl Fed Credit Union v. Martin, No. 99-0320
    • United States
    • Supreme Court of Texas
    • September 7, 2000
    ...Bus. & Com. Code Ann. § 4.401(a), amended by Acts 1995, 74th Leg., ch. 921, § 4. 44. See, e.g., Gerber v. City Nat'l Bank of Florida, 619 So.2d 328, 329 (Fla. Dist. Ct. App. 1993); Indiana Nat'l Corp. d/b/a Indiana Nat'l Bank v. FACO, Inc., 400 N.E.2d 202, 205, (Ind. Ct. App. 1980); Jensen ......
  • Lowenstein v. Barnett Bank of South Florida, N.A., No. 98-1384
    • United States
    • Florida District Court of Appeals
    • October 21, 1998
    ...customer's failure to timely discover and report the forgeries, bars his claim as a matter of law. See Gerber v. City Nat'l Bank of Fla., 619 So.2d 328 (Fla. 3d DCA 1993); Space Distribs., Inc. v. Flagship Bank, 402 So.2d 586, 589 (Fla. 5th DCA 1981). Having failed to fulfill this statutory......
  • Request a trial to view additional results
5 cases
  • Certification from the U.S. Dist. Court for the E. Dist. of Wash. in Travelers Cas. & Surety Co. v. Wash. Trust Bank, No. 92483–0
    • United States
    • United States State Supreme Court of Washington
    • November 3, 2016
    ...as Seattle–First ).13 See also Brown v. Cash Mgmt. Tr. of Am. , 963 F.Supp. 504 (D. Md. 1997); Gerber v. City Nat'l Bank of Fla. , 619 So.2d 328 (Fla. Dist. Ct. App. 1993)(citing cases from numerous jurisdictions in accord).14 RCW 62A.4–406(b)provides:If the items are not returned to the cu......
  • Euro Motors, Inc. v. Southwest Financial Bank and Trust Co., No. 1-97-1014
    • United States
    • United States Appellate Court of Illinois
    • June 1, 1998
    ...Concrete Materials Corp., 938 S.W.2d at 258. Many other jurisdictions have come to the same conclusion. See Gerber v. City National Bank, 619 So.2d 328 (Fla.Dist.Ct.App.1993) (holding that statute imposing duty on customer to discover and report unauthorized Page 715 [231 Ill.Dec. 419] sign......
  • Amer. Airlines Empl Fed Credit Union v. Martin, No. 99-0320
    • United States
    • Supreme Court of Texas
    • September 7, 2000
    ...Bus. & Com. Code Ann. § 4.401(a), amended by Acts 1995, 74th Leg., ch. 921, § 4. 44. See, e.g., Gerber v. City Nat'l Bank of Florida, 619 So.2d 328, 329 (Fla. Dist. Ct. App. 1993); Indiana Nat'l Corp. d/b/a Indiana Nat'l Bank v. FACO, Inc., 400 N.E.2d 202, 205, (Ind. Ct. App. 1980); Jensen ......
  • Lowenstein v. Barnett Bank of South Florida, N.A., No. 98-1384
    • United States
    • Florida District Court of Appeals
    • October 21, 1998
    ...customer's failure to timely discover and report the forgeries, bars his claim as a matter of law. See Gerber v. City Nat'l Bank of Fla., 619 So.2d 328 (Fla. 3d DCA 1993); Space Distribs., Inc. v. Flagship Bank, 402 So.2d 586, 589 (Fla. 5th DCA 1981). Having failed to fulfill this statutory......
  • Request a trial to view additional results

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