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September 21, 2009

Not all payments are equal under "good funds" laws

Anyone who has participated in a real estate closing can attest that it can be a daunting experience. There are many parties with their hands out at the closing table to consummate the deal—the buyer, seller, and attorneys, to name a few. However, it can all collapse like a house of cards if the funds underlying the transaction are not collected or "good."

Ripple effects can be devestating when a lender fails to properly fund an escrow closing transaction. A notable case is the collapse of mortgage lender Abbey Financial in 1994, which resulted in hundreds of consumers over six states stranded with either unfunded mortgages or double mortgages because their first mortgage was not paid off in a loan refinancing. Many of Abbey's checks were dishonored, which left several attorneys with shortfalls in their trust accounts.

The aftermath of Abbey sent shock waves through the mortgage industry and prompted many states to enact "Good Funds" laws to ensure that the money funding a real estate purchase and refinance transaction is secure and ready for disbursement. The purpose of the law is to provide assurance to the consumer and other parties that the funds are in the proper hands before the deed or mortgage is recorded. This thereby protects the seller from conveying property to a buyer whose check is drawn on an account with insufficient funds.

What makes a payment "good"?
Typically, a closing agent will deposit all funds connected to a real estate transaction into an escrow account for disbursement at the closing. Most good funds laws stipulate the type of funds (e.g., cashier's checks, or wire transfers) that an escrow agent can accept. However, what is considered "good funds" can vary by state. In Georgia, for example, the law expressly permits certain types of checks:

A settlement agent may disburse proceeds from its escrow account after receipt of any of the following negotiable instruments even though the same are not collected funds: (1) a cashier’s check from a federally insured bank, savings bank, savings and loan association, or credit union…; (2) a check drawn on the escrow account of an attorney or real estate broker…; (3) a check issued by the United States or Georgia…; and (4) a check or checks not exceeding $5,000 in aggregate per loan closing.

Several states have taken a stricter approach in defining acceptable funds. Specifically, wire transfers are often the only funding mechanism allowed and, in some cases, are required for transactions over a certain dollar amount. Although not an exhaustive list, a general Internet search revealed that Indiana, Minnesota, Missouri, and Texas are among those states with good funds laws that limit electronic funds transfers to "wire transfers" instead of the broader "electronic payment," as defined in Regulation CC (12 CFR 220.10 (p)), which would otherwise permit funding using automated clearinghouse (ACH).

For example, the Indiana Good Funds Law defines wired funds as "good" but requires that they be "unconditionally held by and irrevocably credited to the escrow account of the closing agent." Only funds transferred through Fedwire or CHIPS are immediate, final, and irrevocable. Consequently, it appears that Indiana’s law excludes electronic fund transfers through ACH since consumer Regulation E rights with regard to unauthorized ACH credits may create some risk that ACH funding of a real estate transaction could be reversed long after the closing.

Secure funds important in uncertain times
The current housing crisis has undoubtedly caused some anxiety for all parties in a real estate transaction about the risk of a deal falling through. Numerous bank failures and increased real estate fraud have further complicated the process. Although there are differences by state, the good funds laws help to mitigate some of the risks by helping to ensure that the funding of real estate transactions is reliable.

By Jennifer Grier, senior payments risk analyst at the Atlanta Fed