CMN Resolution No. 3972 — Regulates checks, return, and opposition to payment

RESOLUTION NO. 003972

Dispenses with checks, return, and opposition to their payment.

The Central Bank of Brazil, in accordance with Article 9 of Law No. 4,595, of December 31, 1964, makes public that the National Monetary Council, in a session held on April 28, 2011, based on Articles 3, item V, and 4, item VIII, of the aforementioned law, and Article 69 of Law No. 7,357, of September 2, 1985,

RESOLVES:

Article 1. Financial institutions maintaining checking accounts must improve and clarify the discipline adopted for the use of checks by their customers, establishing objective and transparent operational criteria for the provision of check sheets, which contemplate the legal and regulatory provisions on the matter.

§ 1º It is incumbent upon financial institutions to keep customers oriented regarding:

I - the discipline established for the use of checks;

II - practices incompatible with the adopted discipline, as well as with the legal and regulatory provisions on the matter;

III - practices that may characterize abuse of the right to prevent the normal course of checks; and

IV - the legal and regulatory penalties and applicable measures, in case of non-compliance with the regulation and the established discipline.

§ 2º With a view to adopting the procedures referred to in this article, the financial institution must:

I - adapt its control and monitoring systems for checking accounts, aiming to monitor behavior incompatible with the established discipline; and

II - adopt, in cases considered incompatible with the established discipline, the following measures:

a) guidance;

b) formal notification;

c) suspension of the provision of check sheets; or

d) account closure.

Article 2. Financial institutions must include in the contracts for opening and maintaining checking accounts movable by means of checks, among others, clauses providing for:

I - the operational nature rules for the provision of check sheets;

II - the possibility of non-provision or interruption of the provision of check sheets;

III - the legal and regulatory penalties and the measures referred to in Article 1; and

IV - the free provision of up to ten check sheets per month, provided that the customer meets the necessary requirements for the use of checks, according to the current regulation and the agreed conditions, in accordance with Article 2 of Resolution No. 3,919, of November 25, 2010.

Sole Paragraph. The rules for the provision of check sheets to the customer must be established based, among others, on the following criteria:

I - sufficient balance for the payment of checks;

II - credit restrictions;

III - history of practices and occurrences in the use of checks;

IV - stock of check sheets in the possession of the customer;

V - registration in the Register of Issuers of Checks without Funds (CCF); and

VI - regularity of the data and of the customer's identification documents.

Article 3. Check sheets provided by financial institutions must have the following information printed in the area intended for the identification of the holder or holders of checking accounts:

I - the name of the customer and the respective number of registration in the Individual Taxpayer Registry (CPF) or in the National Registry of Legal Entities (CNPJ);

II - the number, issuing body, and acronym of the Federation Unit referring to the identity document contained in the contract for opening and maintaining a checking account, in the case of natural persons;

III - the date of start of the contractual relationship of the customer with financial institutions, as established in Resolution No. 3,279, of April 29, 2005, and complementary regulation; and

IV - the date of manufacture of the check sheet, in the format "Manufacture: month/year", in the lower part of the area intended for the identification of the financial institution, on the front of the check.

Sole Paragraph. Regarding the provisions of items I to III of the caput, it must be observed that:

I - in the case of an account owned by a minor or incapacitated person, at least the identification data of the person who represents or assists them must appear;

II - in the case of an account owned by an economically dependent person, at least the identification data of the responsible person must appear; and

III - in the case of a joint account, at least the identification data of two holders must appear, interspersed with the terms "and" or "or", as appropriate, and the indication of the possible existence of other holders through the use of the terms "and others" or "or others".

Article 4. The provision of home delivery service for check sheets in favor of holders of checking accounts is permitted, through postal companies or messenger services, or through the financial institution's own service, subject to formal authorization by the customer.

§ 1º In the case of a joint account, the service can only be provided with the authorization of all account holders.

§ 2º The financial institution must make available the information, in accordance with Article 9, regarding check sheets transferred to the delivery service and not yet unlocked by the customer.

§ 3º Check sheets are considered unlocked by the customer when:

I - there is formal communication signed, admitting the use of transaction or electronic communication, via password or any procedure capable of producing evidence for legal purposes; or

II - a check issued on a still blocked sheet, with authentic signature, is presented to the drawee bank for payment.

Article 5. Financial institutions must require, for the effective implementation of the stoppage or revocation of a check, a request formalized by the interested party, with no judgment on the merit or relevance of the reason presented, as provided in Articles 35 and 36 of Law No. 7,357, of September 2, 1985, admitting the use of transaction or electronic communication, via password or any procedure capable of producing evidence for legal purposes.

§ 1º In the case of a request for stoppage or revocation due to theft, robbery, or loss of a check issued by the customer, or of blank check sheets, as appropriate, the applicant must present the respective police report.

§ 2º Requests for provisional stoppage or revocation must be accepted by any means of communication, provided that said request must be confirmed, under the conditions set forth in this article, until the end of business hours on the second business day following the registration of the request, excluding the day of communication itself, otherwise it will be considered nonexistent by the financial institution.

§ 3º Checks returned for specific reasons related to stoppage or revocation resulting from theft, robbery, or loss, implemented in accordance with § 1º, cannot be subject to annulment of the respective stoppage or revocation.

Article 6. The drawee financial institution is obliged to provide, upon formal request by the interested party, the information specified below, according to the indicated cases:

I - full name and residential and commercial addresses of the issuer, in the case of a check returned for:

a) insufficient funds;

b) reasons that warrant registration of an occurrence in the CCF;

c) duly confirmed stoppage or revocation, not motivated by theft, robbery, or loss;

d) discrepancy, insufficiency, or absence of signature; or

e) formal filling error;

II - in addition to the information established in item I:

a) copy of the formal request for stoppage or revocation, or printed reproduction of the respective terms, in the event that it was requested and confirmed by means of electronic transaction, containing the reason alleged by the issuer or the beneficiary, in the case of a check returned due to stoppage or revocation not motivated by theft, robbery, or loss; and

b) full name, residential and commercial addresses, identity document number, and CPF registration number of the issuer, in the case of a check returned for any of the cases included in item I, issued by a holder of a joint account whose identification data do not appear on the check;

III - declaration on the authenticity or lack thereof of the issuer's signature, through examination equivalent to that which would be carried out in a check payment procedure presented at the teller, in the case of a check returned due to stoppage or revocation motivated by theft, robbery, or loss of a blank check sheet.

Sole Paragraph. The information referred to in this article:

I - must be provided on letterhead document of the financial institution, signed by its representative; and

II - can only be provided:

a) to the beneficiary, if indicated on the check, or to a legally constituted attorney-in-fact; or

b) to the bearer, in the case of a check for which current legislation does not require the identification of the beneficiary and which does not contain said identification.

Article 7. The improper inclusion of an occurrence in the CCF, as well as the consequent exclusion, cannot generate the charging of any expenses or fees to the customer.

Article 8. The financial institution receiving deposits in checks must provide, upon request by the issuer of the check included in the CCF, upon presentation of a copy of the check, the full name and residential and commercial addresses of the depositing beneficiary.

Sole Paragraph. The provision of the data referred to in the caput must be authorized by the depositing beneficiary.

Article 9. Financial institutions maintaining checking accounts must make available information regarding the following occurrences related to a specific check:

I - stopped or revoked check;

II - check subject to provisional stoppage or revocation not expired and not yet confirmed;

III - check sent to the customer's home whose unlocking has not been performed;

IV - check canceled by the drawee financial institution;

V - check referring to a checking account subject to total judicial blockage;

VI - check stolen, robbed, lost, or destroyed during the clearing process;

VII - check referring to a checking account maintained in a credit union whose contract with the financial institution providing the clearing service has been terminated, an occurrence to be registered by the credit union; and

VIII - check referring to a closed checking account.

§ 1º The consultation to the information referred to in the caput must refer to a specific check and be available to the interested party, with updates within one business day after the communication or detection of the occurrence.

§ 2º Interested party is considered the issuer, the named beneficiary, the legitimate bearer, the endorser, the endorsee, the guarantor, or any person who intends to integrate, in any way, the exchange relation.

Article 10. This resolution enters into force on the date of its publication, establishing the following deadlines, counted from said date:

I - six months, for the adjustments necessary for the implementation of the provisions of Article 3, item IV;

II - twelve months:

a) for the availability of the information referred to in Article 9; and

b) for the adjustments of contractual instruments, relating to checking accounts, to the provisions of this resolution.

Article 11. Article 25 of the Regulation annexed to Resolution No. 1,631, of August 24, 1989, with the wording given by Resolution No. 1,682, of January 31, 1990, Resolution No. 2,537, of August 26, 1998, and Articles 3 and 4 of Resolution No. 2,747, of June 28, 2000, are hereby repealed.

Brasília, April 28, 2011.

Alexandre Antonio Tombini
President