security procedures in place to protect against an authorized payment borders over three hundred and seventy thousand dollars of appellants fines were transferred to accounts in poland that the not belong to the problems stated another way a financial institution acting on behalf of its customer it funds transfer without any security procedures in place section two who are of article four a provides what happens in these circumstances the customers interpretation of whether we would bushies the bank yes it does that is what the lower courts ruled they were focused on what is what bush engaged in the business of banking and doing that we can see clearly that the role that wedbush is playing is they are acting as the receiving bank or acting as the originators bank and i think that the statute itself does in i negative way when you look at some of the comments that if you are doing the things under the statute if you are engaged in funds transfers if you are taking these actions on behalf of your customers then you are  you know but bush has argued that that they were just an agent but if that was the case they would not have been asking you know harrah's to process a wire transfer funds transfer out of what bush is on account they would have been asking to process  bank in the series of transactions so this makes by bush both the receiving bank and the originators back receiving bank has the bank to which the senators instructions are addressed here at the hackers address the instructions and something directly to advice what the originators bank means the receiving bank which the payment order of the originator is issued so while we assume that there are multiple definitions for the same things there can be different actors and that under they were just an agent and not either of these things take place they accepted big payment order they executed the payment work and they did this because indirectly received the an offer as a human or they by the sender so the receiving bank to execute or pay the order and that request can be accepted or rejected by the receiving bank here the total of eight an authorized payment orders were sent by the defines bank as a person engaged in the business of banking and includes a savings bank savings and loan association credit union a trust company so what does this really mean in the context of four looking to s comments or a in the policy of the u c c itself are helpful how about number one for a section one of five reminds us that in addition to what we all traditionally think of as commercial banks as explained in the comments for a was drafted to recognize that when it came to funds transfers by the insulin situations that are not traditionally considered commercial banks are now performing functions that previously were restricted to typical commercial banks including the activities for the comment that funds transfer is the litmus test and that's all we need to know are there other factors as to whether a banker acting or engaging in the business of banking well there are there are other factors that for a of the series of transfers and the different actions that can be taken and also it also says in in the comments to section one hundred and four dollars talks about how a bank is defined in section one of five and it says  effect of that definition is to limit or age of payments made through the banking system so the commons in this case provided i think the you know some of the best guidance for what was the intention here because it also says in that comment that  and the focus is limited to payments being made through the banking system it's focused on the banking system and the activity of the comment goes on to say that a transfer of funds and outside  usually a consumer transaction involving relatively small amounts of money and a single contract carried out by transfers of cash or cash equivalents such as a check and that description doesn't fit our case at all this is not a consumer transaction but small amounts of money it's not a single contract carried out in cash and jack webb which provides wire transfers is an ongoing service to its customers if you think about the facts and circumstances being described in the comment you come to the conclusion  are indicating that entities using the banking system to transfer funds are banks under for a well bush is using the banking system to transfer funds for its customers and therefore it is a bank under foray it's what  substantial risk is involved in funds transfers to all customers and may and certain banks may not be willing to give the service to all customers they might be willing to offer it to any customer unless the cards against last such a security procedures are in effect the trial court found that in order to conclude that by bush was a bank for the purposes of for a every quires a high level of involvement in customer's finances usually including checking deposit withdrawals services and in some circumstances debit and credit card there is no such standard for a or in the commons before a and there is no such standard in any of the cases applying for a appellate court pressure way to this conclusion by finding that they could not conclude that bed by bush was engaged in the business of banking and therefore subject to for a public court said there was no admissible evidence indicating that what bush hopper tekken services that way bush offered deposit account interpret ng articles three and four and four ok but really all of the evidence they say they wanted to see indicate that whether bush was engaged in the business of banking their activities under articles three and four activities that  historically the attempt to define the rights and obligations of funds transfers by general principles or analogy to the rights and obligations under negotiable instrument law or the law check or action were not satisfactory so in drafting competing interests banks that provide bits and the funds transfer services and the commercial financial organizations that use them and the competing interests were represented in the drafting process and they were thoroughly considered the lower courts and by bush what have you rely on article three and four cases to interpret the definition of bank under way but it makes little sense in light of the purpose of article for eg if those cases have any value is that they can be used to provide an analogy to the activities that they cover the activities that occur under for a being funds transfers of course uses under article three and for a state that a key factor is providing checking services and deposit accounts because that's what those articles apply to those of the activities being covered by those articles so i can now just say that would be to say that the key factor in applying are before any is whether or not funds transfers are involved those are the activities being covered by the by article or it's not check writing services its funds transfer beyond that relying on article three in four cases would be riding on the principles for the very same articles that the u c c committee found were in adequate to address the principles for funds transfers and that's why for it is to exclusively govern funds transfers by bush is a bank for purposes of war it acts on behalf of its customers and funds transfer within the scope intended by foray wasn't clued in the definition of bank should be as intended by the tractor's using an intentionally broad interpretation the definition is meant intentionally to be inclusive or includes financial institutions that are not commercial banks and includes those performing functions previously restricted to commercial banks including acting on behalf of westerners and funds transfers including making those payments through the banking system including those involved in the activity within the scope of  hy this case then is the reason our call for a exists and to agree with the lower court's determination and why bush's position would create a precedent in illinois that an entity using the banking system fraud cases you know could be pursued but in our situation we were unsuccessful obviously on that point as well negligence is is not going to work all across of action breaches reduce  about the viewing of it and the printing of it by dr whatever but the point obviously authentication is and make sure that we have evidence sufficient to support what it is we're trying to have admitted as evidence and business and many things just pushed to provide your services for the customers that are nonetheless not banks mr henderson window dr whitaker opened his initial i don't know what you refer to it as the grangemouth account with the with your client presumably something was signed at that to involve the future future commissions merchant role that you played was there a disclaimer in that about what they could do and not do there was was that is that in the record  of customers and funds transfers or that you have if you did act on behalf of spears and one trenchers there has to be something additional done in the way of banking services it's  involvement in funds transfers is required to so i think the question was asked  not helpful in defining what a bank is the statute itself is helpful enough v the article for a section one of five the comment provides that it ends intended to apply to financial institutions that are not traditionally seen as banks while while that will you know that is actually the case in this situation here too we have to make sure that the uniform commercial co continues to be a living breathing changing bank that's how it's what they were intended it to be a wise make up possible for the law to continue to be applied in the light of new and unforeseen circumstances i think everyone would agree that what constitutes traditional banking has been changing especially in the last you know five to ten years and will probably continue to change in the next five to ten years but bush their agency argument just doesn't work here they accepted and executed these payment orders it wasn't just oh here's the payment order we sent it through they reviewed it they rejected some of them because the beneficiary was listed as not as who they had on their account know sent it through three different departments for verification this wasn't an agency situation this was them actively acting on these payment orders people had no visibility to go to these wire transfer instructions that came through from the  or in this case the hackers they never saw that all they got was the information that what goes into the customer portal if you know harris and that was based upon which is determination their acceptance of the payment order they're the ones that decided whether  and so if i would understand mr henderson's argument correctly in the comment section where it says including acting on behalf funds transfers that's not exclusive also so it could mean there should be other factors taken into consideration the determining but there's something that you know clothing is not exclusive to the it's not exclusive but it's also meant to be inclusive to include multiple types of it that when they're talking about if you're an entity using the banking system for funds transfers that makes you a bank and and so that's what we have here the argument that the definitions are the same definition of bank and three dollars and four dollars and actually in article one article nine everybody started at the same place but we would need those to be in place at the bank definition was meant to be the same that's why services i don't have to posit accounts so that's why there are the same definition is repeated over and over because it's meant to be a starting point and then be applied to the activities under that particular article you're posing evidence was in the record about whether or not there were any security procedures let alone commercial rick personally reasonable security procedures whether or not a procedure was rational and reasonable as a matter of law as as stated not a question of fact we don't really have any  fact arsons and obviously there are situations as we've referred to where it is or obviously has the ability to to decide all the matters or because everything is in the record i just want to make one comment about the the the merrill lynch wanted to be a bank concept if we look at the four actual forty eight dollars cases that we're talking about we have really three of them involving merrill lynch isn't an asian international which was the case and article three international the the plaintiff you know argued that they were but they were not a bank and in gold they definitely argued about whether or not the banks a lot of the courts didn't go into detail as to why merrill lynch was a bank and they need to they wanted to obviously use the the remedies under for a for people who follow security procedures but in that case it just didn't become an issue so we don't have any find the more profitable that were a applies as we're saying if you have to find some additional activities or services that they say they didn't offer check writing services obviously that's a bill of and has admitted that would make a big difference for us but even without that their own exhibits talk about their ability to fire funds and check write checks out of their customers accounts or on behalf of their customers there are a lot of other things in the in the record that talk about their traditional banking services people  d into accounts with they get all the statements they get all of those you know types of activities that would make it seem that they are you know acting in other ways other than just wire transfers and duty which what was vehemently denies they even have let alone that they've reached it but the levels of acting they're all situations of fraud or bad acting or things like that not the clear situation here work to over or provides what happens when an unauthorized payment order comes through and the remedies that are available for no further question