20 QUESTIONS:
Sandra and Thomas McGuire entered into a purchase and sale agreement for “Becca’s Boutique” with Pascal and Rebecca Tursi. The agreement provided that the McGuires would buy the store for $75,000, with a down payment of $10,000 and the balance of $65,000 to be paid at closing on October 5, 2017. The settlement clause stated that the sale was contingent upon the McGuires’ obtaining a Small Business Administration loan of $65,000. On September 4, 2017, Mrs. McGuire signed a promissory note in which the McGuires promised to pay to the order of the Tursis and the Green Mountain Inn the sum of $65,000. The note specified that interest payments of $541.66 would become due and payable on the fifth days of October, November, and December 2017. The entire balance of the note, with interest, would become due and payable at the option of the holder if any installment of interest was not paid according to that schedule.
The Tursis had for several months been negotiating with Parker Perry for the purchase of the Green Mountain Inn in Stowe, Vermont. On September 7, 2017, the Tursis delivered to Perry a $65,000 promissory note payable to the order of Green Mountain Inn, Inc. This note was secured by transfer to the Green Mountain Inn of the McGuires’ note to the Tursis. Subsequently, Mrs. McGuire learned that her Small Business Administration loan had been disapproved. On December 5, 2017, the Tursis defaulted on their promissory note to the Green Mountain Inn. On June 11, 2017, PP, Inc., formerly Green Mountain Inn, Inc., brought an action against the McGuires to recover on the note held as security for the Tursis’ promissory note.
Is this instrument negotiable? Please explain.
Payable at a Definite Time. This Promissory note is not a negotiable instrument within U.C.C. Article 3. The note is not payable on demand or at a definite time because it does not provide for repayment of principal at a specified time. The acceleration clause provided that the amount was payable upon the maker’s default which was also an indefinite time. Despite the fact that this is not a negotiable instrument, Perry still can claim rights as a contract assignee (he will have the same rights as his assignor). PP, Inc. v. McGuire, 509 F.Supp 1079 (D.C. N.J. 1981).
Horne executed a $100,000 note in favor of R. C. Clark. On the back of the instrument was a restriction stating that the note could not be transferred, pledged, or otherwise assigned without Horne’s written consent. As part of the same transaction between Horne and Clark, Horne gave Clark a separate letter authorizing Clark to pledge the note as collateral for a loan of $50,000 that Clark intended to secure from First State Bank. Clark did secure the loan and pledged the note, which was accompanied by Horne’s letter authorizing Clark to use the note as collateral. First State contacted Horne and verified the agreement between Horne and Clark as to using the note as collateral. Clark defaulted on the loan. When First Bank later attempted to collect on the note, Horne refused to pay, arguing that the note was not negotiable as it could not be transferred without obtaining Horne’s written consent. This suit was instituted. Is the instrument negotiable? Please explain.
Payable to Order or Bearer. Judgment for First State Bank, even though the note in question is not a negotiable instrument. In order for a note to be classified as a negotiable instrument, one must be able to ascertain from the instrument itself and without reference to other documents that the instrument (1) be in writing; (2) is signed by the maker or drawer; (3) contains a promise or order to pay; (4) be unconditional; (5) be for a sum certain in money [Revised Article 3: fixed amount]; (6) contains no other promise by the maker or drawer except as authorized by law; (7) is payable on demand or at a definite time; and (8) is payable to order or bearer. The note executed by Horne failed to meet the requirements of negotiability because the promise to pay was not payable to order or bearer. Rather, a transfer of the note was conditioned on the holder’s obtaining Horne’s written consent. This limitation, although it appeared only on the back of the instrument, was part of the instrument and destroyed its negotiability. Furthermore, that flaw could not be overcome by the accompanying letter from Horne to Clark. In order to facilitate the transfer of notes, the party receiving the note must be able to determine its validity and negotiability from the face of the note. Thus, the note was assigned to First State Bank and is governed by the law of assignments. First State Bank at Gallup v. Clark, 570 P.2d 1144 (N.M. 1977).
The Society National Bank (Society) agreed in a promissory note to lend U.S.A. Diversified Products, Inc. (USAD) up to $2 million in the form of an operating line of credit upon which USAD could make draws of varying amounts. The outstanding balance was to be paid on April 30 of the following year. USAD defaulted on the line of credit, and Society filed a complaint against USAD. Is the promissory note negotiable? Please explain.
Fixed Amount in Money. The line of credit is not a negotiable instrument. This problem is based on the case Yin v. Society National Bank Indiana, Court of Appeals of Indiana, 1996, 665 N.E.2d 58, http://scholar.google.com/scholar_case?case=10434850995862158719&q=665+N.E.2d+58+&hl=en&as_sdt=2,22.
The agreement in this case is a line of credit upon which USAD could make draws of varying amounts. Indeed, the face of the note contains a notation regarding “draws.” Although USAD did make various draws upon the line of credit, it was under no obligation to make any draws whatsoever. In fact, if USAD had never drawn upon the line of credit, it would have owed nothing when the agreement matured. The principal would have been zero. This is noteworthy because it illustrates an important feature of the line of credit: to ascertain the principal owed, one must look beyond the agreement itself. Because of the potentially variable principal which results from such an arrangement, the line of credit contains no sum certain or fixed amount. Lacking an unconditional promise to pay a sum certain (fixed amount), the line of credit falls outside the definition of a negotiable instrument.
A drawer, Commercial Credit Corporation (Corporation), issued two checks payable to Rauch Motor Company. Rauch indorsed the checks in blank, deposited them to its account in University National Bank, and received a corresponding amount of money. The Bank stamped “pay any bank” on the checks and initiated collection. However, the checks were dishonored and returned to the Bank with the notation “payment stopped.” Rauch, through subsequent deposits, repaid the bank. Later, to compromise a lawsuit, the Bank executed a special two-page indorsement of the two checks to Lamson. Lamson then sued the Corporation for the face value of the checks, plus interest. The Corporation contends that Lamson was not a holder of the checks because the indorsement was not in conformity with the Uniform Commercial Code in that it was stapled to the checks. Is Lamson a holder? Please explain.
Indorsements . Yes, Lamson is a holder and would prevail. Because the Bank indorsed the checks to Lamson by name, thus qualifying as a special indorsement, the restrictive indorsement of “Pay any Bank” no longer prevented Lamson from becoming a holder. The problem was whether the special indorsement was correctly and properly affixed to the checks under Section 3-202(2) which provides that “(a)n indorsement must be written…on behalf of the holder and on the instrument or on a paper so firmly affixed thereto as to become a part thereof.” [Revised 3-204(a) provides: “For determining whether a signature is made on an instrument, a paper affixed to the instrument is a part of the instrument.”]
Since it was physically impossible to place all of the language on the two small checks, the indorsement had to be affixed to the checks in some way. Such a paper is called an allonge. The Court agreed that paper clipping is not sufficient but held that stapling the allonge to the checks was a permanent attachment to the checks so that it becomes “a part thereof.” (Under Revised Article 3, it would be adequate.)
Section 1-201(20) defines a holder as a person who possesses an instrument indorsed to him. The Bank’s special indorsement, stapled to the checks, made Lamson a holder. As a holder, Lamson was entitled to payment unless the Corporation establishes a defense. Lamson v. Commercial Credit Corp., 531 P.2d 966 (Co. 1975). [Note: Decision would change under Revised Article 3, Section 3-204(a).]
Certain partners of the Finley Kumble law firm signed promissory notes that secured loans made to the law firm by the National Bank of Washington (NBW). When Finley Kumble subsequently declared bankruptcy and defaulted on the loans, NBW filed suit to collect on the notes. Then NBW itself became insolvent, and the Federal Deposit Insurance Corporation (FDIC) was appointed as receiver for NBW. The FDIC brought suit against the partners who had signed the note. Section 1823(e) of the Federal Deposit Insurance Act places the FDIC in the position of a holder in due course and thus bars all personal defenses against the FDIC claims. Twenty of the Finley partners claimed that they had signed the notes under the threat that their wages and standing in the firm would decrease if they refused to sign. Such a threat constituted economic duress, which, they contended, is not a personal defense but a real defense. Please explain who should win the lawsuit.
Duress . Judgment for F.D.I.C. First, s 3-305(2)(b) provides that holders in due course take free of all defenses except for “(b) such other incapacity, or duress, or illegality of the transaction, as renders the obligation of the party a nullity.” The words “such” and “as” indicate that the section is not stating that any type of duress renders an obligation to be a nullity. Rather, it suggests that only those types of duress that are so severe as to render it a nullity stand as exceptions to the rule that holders in due course take free of defenses.
Of course, the question left open is what type of duress is severe enough to render it a nullity. Neither UCC s 3-305(2)(b) nor the Official Comment attempt to establish a rule governing which types of duress render a transaction void as opposed to merely voidable. Instead, Official Comment 6 declares that “[a]ll such matters are therefore left to the local law.”
Duress takes two forms. In one, a person physically compels conduct that appears to be a manifestation of assent by a party who has no intention of engaging in that conduct. The result of this type of duress is that the conduct is not effective to create a contract (s 174). In the other, a person makes an improper threat that induces a party who has no reasonable alternative to manifesting his assent. The result of this type of duress is that the contract that is created is voidable by the victim.
L&M Home Health Corporation (L&M) had a checking account with Wells Fargo Bank. L&M engaged Gentner and Company, Inc. (Gentner) to provide consulting services, and paid Gentner for services rendered with a check drawn on its Wells Fargo account in the amount of $60,000, dated September 23, 2016. Eleven days later, on October 4, 2016, L&M orally instructed Wells Fargo to stop payment on the check. Eleven days after that, on October 15, 2016, Gentner presented the L&M check to Wells Fargo for payment. On the same date the teller issued a cashier’s check, payable to Gentner, in the amount of $60,000. On November 5, 2016, Wells Fargo placed a “stop payment order” on the cashier’s check. On January 15, 2017, Gentner deposited the cashier’s check at another bank, but it was not honored and was returned stamped “Payment Stopped.” Gentner sues Wells Fargo for wrongful dishonor of the cashier’s check. Is Gentner a holder in due course of the check? Please explain.
Holder in Due Course . The trial court ruled in favor of Gentner, finding that Gentner was a holder in due course of the cashier’s check. To be a holder in due course, one must take the instrument “for value, in good faith, without notice that the instrument is overdue, has been dishonored, contains an unauthorized signature or has been altered, and without notice of any claim to the instrument” (and now, under the revised article, without reason to question its authenticity.)
The reason achieving the status of a holder in due course is important is that the only defenses available against a holder in due course are real defenses that include “infancy” of the obligor, “duress,” lack of legal capacity, illegality of the transaction, fraud and discharge of the obligor by bankruptcy. When the instrument is not in the hands of a holder in due course, the obligor can raise many other defenses (personal or contractual defenses).
Wells Fargo contends that the holderinduecourse doctrine does not apply because the cashier’s check was purchased by Gentner for payment to itself rather than by another party for payment to Gentner. Logically, one would think that must be so and that Gentner’s status as the payee of the cashier’s check would preclude it from claiming holderinduecourse status. However, “[t]he payee of an instrument can be a holder in due course” even though “use of the holderinduecourse doctrine by the payee of an instrument is not the normal situation,” and only “in a small percentage of cases” would it be “appropriate to allow the payee of an instrument to assert rights as a holder in due course.”
The situation of a bank accepting a customer’s check and giving the payee a cashier’s check in return appears to fall within that small percentage of cases which presents an opportunity for the payee to establish holderinduecourse status. Gentner, the payee of the cashier’s check, was acting in complete good faith and had no knowledge of any potential defenses held by Wells Fargo as drawer of the instrument. Specifically it did not know, and had no reason to know, that the L & M check which it submitted to Wells Fargo was subject to a stop notice and was, from Wells Fargo’s perspective, worthless since the funds could not be recovered from the customer’s account. Gentner and Company, Inc. v. Wells Fargo Bank, 90 Cal. Rptr. 2d 904.
While assistant treasurer of Travco Corporation, Frank Mitchell caused two checks, each payable to a fictitious company, to be drawn on Travco’s account with Brown City Savings Bank. In each case, Mitchell indorsed the check in his own name and then cashed it at Citizens Federal Savings & Loan Association of Port Huron. Both checks were cleared through normal banking channels and charged against Travco’s account with Brown City. Travco subsequently discovered the embezzlement, and after Citizens denied its demand for reimbursement, Travco brought a suit against Citizens. Is the indorsement effective? Please explain.
Fictitious Payee Rule. No, the indorsement is not effective against Travco. An endorsement by any person in the name of a named payee is effective if an agent or employee of the maker or drawer has supplied him with the name of the payee intending the latter to have no such interest. Here, however, although Mitchell was an employee of the drawer, Travco, and had supplied the drawer with the names of the fictitious payees, neither check was indorsed in the name of the named payee. Instead, Mitchell indorsed them in his own name, and as a consequence, the indorsements were not effective against Travco, and Citizens is therefore liable. Travco Corporation v. Citizens Federal Savings and Loan Association of Port Huron, 42 Mich. App. 291, 201 N.W. 2d 675 (1972).
On July 1, Anderson sold D’Aveni, a jeweler, a necklace containing imitation gems, which Anderson fraudulently represented to be diamonds. In payment for the necklace, D’Aveni executed and delivered to Anderson her promissory note for $25,000 dated July 1 and payable on December 1 to Anderson’s order with interest at 8 percent per annum.
The note was thereafter successively indorsed in blank and delivered by Anderson to Bylinski, by Bylinski to Conrad, and by Conrad to Shearson, who became a holder in due course on August 10. On November 1, D’Aveni discovered Anderson’s fraud and immediately notified Anderson, Bylinski, Conrad, and Shearson that she would not pay the note when it became due. Bylinski, a friend of Shearson, requested that Shearson release him from liability on the note, and Shearson, as a favor to Bylinski and for no other consideration, struck out Bylinski’s indorsement.
On November 15, Shearson, who was solvent and had no creditors, indorsed the note to the order of Frederick, his father, and delivered it to Frederick as a gift. At the same time, Shearson told Frederick of D’Aveni’s statement that D’Aveni would not pay the note when it became due. Frederick presented the note to D’Aveni for payment on December 1, but D’Aveni refused to pay. Thereafter, Frederick gave due notice of dishonor to Anderson, Bylinski, and Conrad.
What are Frederick’s rights, if any, against Anderson, Bylinski, Conrad, and D’Aveni on the note? Please explain.
Liability Based on Warranty. Frederick may recover from D’Aveni, Conrad, or Anderson. As a holder in due course, Shearson could have recovered against Anderson, Bylinski, Conrad, and D’Aveni. Anderson’s fraud would not have been a defense to D’Aveni against Shearson. It was fraud in the inducement, a personal defense, rather than fraud in the execution. By striking Bylinski’s indorsement, Shearson discharged Bylinski. Consideration was not required. The holder may effect discharge in any manner apparent on the face of the instrument or the endorsement. See Section 3-604. Bylinski’s discharge was obvious upon examination of the note. Frederick is bound by Shearson’s cancellation.
Discharging Bylinski without Conrad’s consent under prior Article 3 acted also as a discharge of subsequent indorsers, who relied on Bylinski’s signature and whose right of recourse against Bylinski has been destroyed. Section 3-606. Revised Article 3, Section 3-605(b), does not follow this rule and thus Conrad’s liability would not be discharged.
As a transferee from Shearson, however, Frederick has rights as a holder in due course. Under the shelter doctrine, a donee acquires a donor’s rights unless the transferee was a party to the fraud affecting the note. Section 3-203(b). Frederick may recover on the note from D’Aveni, Anderson, or Conrad. Their liability is not joint, but several.
The problem does not seek an answer to whether Frederick could recover from Shearson. Shearson would not be liable to Frederick on a warranty because Shearson did not receive consideration from Frederick. However, Shearson would be liable for payment of the note on his indorsement. Section 3-415.
On August 10, 2015, Theta Electronic Laboratories, Inc., executed a promissory note to George and Marguerite Thomson. Three other individuals, Gerald Exten, Emil O’Neil, and James Hane, and their wives also indorsed the note. The note was then transferred to Hane by the Thomsons on November 26, 2016. Although a default occurred at this time, it was not until April 2018, eighteen months later, that Hane gave notice of the dishonor and made a demand for payment on the Extens as indorsers. Are the Extens liable? Please explain.
Secondary Liability. Judgment for the Extens. Unless an indorsement otherwise specifies (as by words such as “without recourse”), every indorser agrees that upon presentment, dishonor, and any necessary notice of dishonor he will pay the instrument according to its terms at the time of his indorsement to the holder or to any subsequent indorser who pays it. Generally, presentment for payment and notice of any dishonor are necessary to charge any indorser, and unless either is waived or excused, an unreasonable delay will discharge the indorser.
Here, Hane waited for an unreasonable period of eighteen months until he gave notice of the dishonor and presented the note to the Extens for payment. This was far beyond the requirement that notice of dishonor be given by persons other than banks before midnight of the third business day after dishonor or receipt of notice of dishonor. Hane v. Exten, 255 Md. 668, 259A.2d 290 (1969). The O’Neils were never given notice of the default and are thus not liable.
Attorney Eliot Disner tendered a check for $100,100 to Sidney and Lynne Cohen. In drawing the check, Disner was serving as an intermediary for his clients, Irvin and Dorothea Kipnes, who owed the money to the Cohens as part of a settlement agreement. The Kipneses had given Disner checks totaling $100,100, which he had deposited into his professional corporation’s client trust account. After confirming with the Kipneses’ bank that their account held sufficient funds, Disner wrote and delivered a trust account check for $100,100 to the Cohens’ attorney, with this note: “Please find $100,100 in settlement (partial) of Cohen v. Kipnes, et al[.] Per our agreement, delivery to you constitutes timely delivery to your clients.” Also typed on the check was a notation identifying the underlying lawsuit. Without Disner’s knowledge, the Kipneses stopped payment on their checks, leaving insufficient funds in the trust account to cover the check to the Cohens. The trust account check therefore was not paid due to insufficient funds; the Kipneses declared bankruptcy; and the Cohens served Disner and his professional corporation with demand for payment. The Cohens sought the amount written on the check plus a $500 statutory penalty. Please explain who should win and why.
Authorized Signatures . Decision for Disner. The trial court entered summary judgment for Disner, reasoning he is not liable on the check because he was a mere conduit or agent for transferring money from the Kipneses to the Cohens. The Cohens appealed from the judgment. California Civil Code § 1719, subdivision (a) provides in part that any person who draws a check that is dishonored due to insufficient funds shall be liable to the payee for the amount owing upon the check and treble damages of at least $100, not to exceed $500.The Cohens do not appeal that Disner was a mere conduit or agent for transferring funds. They contend his representative status and motivations for transferring the funds are irrelevant. According to the Cohens, § 1719 imposes strict liability against the [drawer] of a check drawn on an account lacking sufficient funds.
Their contention of strict liability is based on legislative omission. While the UCC permits the drawer of a dishonored check to prove that he signed in a representative capacity and that the holder in due course took the check with notice of the representative’s lack of liability (UCC, § 3–402, subd. (b)(2), sometimes hereinafter referred to as the “representative capacity” defense), § 1719 does not mention this defense.
Nothing in § 1719 affirmatively supports the Cohens’ contention that the “representative capacity” and other UCC defenses were written out of § 1719. On the contrary, the express language of subdivision (a) compels us to the opposite conclusion. By acknowledging there must be an enforceable obligation to pay, § 1719 echoes the UCC, which precludes recovery where the payee has no “right to enforce the obligation of a party to pay an instrument.” (UCC, § 3–305, subd. (a).) If the drawer has no enforceable obligation to pay a dishonored check, there is no amount “owing upon that check” under the plain language of § 1719.
The court rejected the Cohens’ assertion in their reply brief that the “representative capacity” defense is inapplicable here because the conditions of UCC § 3–402, subdivision (c) have not been met. That subdivision provides: “If a representative signs the name of the representative as drawer of a check without indication of the representative status and the check is payable from an account of the representative person who is identified on the check, the signer is not liable on the check if the signature is an authorized signature of the represented person.”
According to the official code comment on that subdivision: “Subdivision (c) is directed at the check cases. It states that if the check identifies the represented person, the agent who signs on the signature line does not have to indicate agency status. Virtually all checks used today are in personalized form which identify the person on whose account the check is drawn. In this case, nobody is deceived into thinking that the person signing the check is meant to be liable.
The Cohens’ assertion is that because UCC § 3–402, subdivision (b)(2)’s “representative capacity” defense is “subject to” subdivision (c), Disner may not be relieved of liability unless he fulfills the requirements of the subdivision (c) defense. sSubdivisions (b)(2) and (c)should not be read in that restrictive manner. Any finding of liability under UCC § 3–402, subdivision (b)(2) is subject to subdivision (c)’s additional exception that the representative is not liable if he signed his name on a personalized check identifying the account of the represented person. Subdivision (c) expands rather than contracts the representative’s defenses. § 1719, by its clear and unambiguous language, permits the drawer of a dishonored check to prove he has no enforceable obligation to pay the check. Cohen v. Disner, California Court of Appeal, 1995, 36 Cal. App.4th 855, 42 Cal.Rptr.2d 782, 27 UCC Rep.Serv.2d 540, http://scholar.google.com/scholar_case?case=11503422137111626726&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Vincent Medina signed a check in the amount of $34,348 written on the account of First Delta Financial, a family corporation owned and controlled by Medina. His corporate title did not appear before his signature. He issued the check to James G. Wyche. The check was dishonored for insufficient funds. First Delta Financial is in bankruptcy. Wyche contends that Medina is personally liable because he signed the check without indicating his corporate capacity below his signature. Medina argues that he is not personally liable on account of having signed the check. Explain who should win.
Liability of Primary Parties . Medina will prevail. If a representative signs the name of the representative as drawer of a check without indication of the representative status and the check is payable from an account of the represented person who is identified on the check, the signer is not liable on the check if the signature is an authorized signature of the represented person.
§ 673.4021(3), Fla. Stat. (1997).
The official comment makes clear that the revision is intended to address the situation now before us:
Subsection [3] is directed at the check cases. It states that if the check identifies the represented person the agent who signs on the signature line does not have to indicate agency status. Virtually all checks used today are in personalized form which identify the person on whose account the check is drawn. In this case, nobody is deceived into thinking that the person signing the check is meant to be liable.
On September 2, 2011, Levine executed a mortgage bond under which she promised to pay the Mykoffs a preexisting obligation of $54,000. On October 14, 2017, the Mykoffs transferred the mortgage to Bankers Trust Co., indorsing the instrument with the words “Pay to the Order of Bankers Trust Company Without Recourse.” The Lincoln First Bank, N.A., brought this action asserting that the Mykoffs’ mortgage is a nonnegotiable instrument because it is not payable to order or bearer; thus it is subject to Lincoln’s defense that the mortgage was not supported by consideration because an antecedent debt is not consideration. Is the instrument payable to order or bearer? Please explain.
Payable to Order or Bearer. The instrument is not payable to order or bearer. Antecedent debt is sufficient consideration to support a negotiable instrument, but not a nonnegotiable one. Under the U.C.C., a writing, to be negotiable, must “be payable to order or to bearer.” Since the mortgage did not contain such language, it was not a negotiable instrument. The Mykoffs’ indorsement could not change the instrument to a negotiable one. Therefore, the mortgage bond is nonnegotiable and unenforceable because it lacks legal consideration. Bankers Trusts’ claim is unsecured in that, as assignee, Bankers Trust is subject to the defense of lack of consideration (its position can be no better than that of its assignor, the Mykoffs). In Re Levine, 23 B.R. 410 (N.Y. 1982).
On July 21, Boehmer, a customer of Birmingham Trust, secured a loan from that bank for the principal sum of $5,500 in order to purchase a boat allegedly being built for him by A. C. Manufacturing Company, Inc. After Boehmer signed a promissory note, Birmingham Trust issued a cashier’s check to Boehmer and A. C. Manufacturing Company as payees. The check was given to Boehmer, who then forged A. C. Manufacturing Company’s indorsement and deposited the check in his own account at Central Bank. Central Bank credited Boehmer’s account and then placed the legend “P.I.G.,” meaning “Prior Indorsements Guaranteed,” on the check. The check was presented to and paid by Birmingham Trust on July 22. When the loan became delinquent in March of the following year, Birmingham Trust contacted A. C. Manufacturing Company to learn the location of the boat. They were informed that it had never been purchased, and they soon after learned that Boehmer had died on January 24 of that year. Can Birmingham Trust obtain reimbursement from Central Bank under Central’s warranty of prior indorsements? Please explain.
Warranties. Decision for Birmingham Trust based upon breach of the guarantee of prior indorsements. If Central Bank had not guaranteed the indorsements with the “PIG” stamp, however, it would probably not be liable under the presenting bank’s warranties, because a presenting bank only warrants on presentment that (1) it has good title or is authorized to obtain payment; (2) it has no knowledge that the signature of the maker or drawer is unauthorized; and (3) that the item has not been materially altered. These warranties are not as extensive as the transferor’s warranties. Birmingham Bank has no knowledge that the signature of A.C. Manufacturing is unauthorized and thus would not be in breach of the warranties on presentment were it not for the “PIG” stamp it placed on the instrument. Unlike the presenter, the transferor warrants that all signatures are genuine and authorized. If the transfer warranties applied, the warranty would have been breached even without the “PIG” stamp. Birmingham Trust Nat’l Bank v. Central Bank & Trust Co., 44 Ala. App. 630, 275 So.2d 148 (1973). [Revised warranties are covered in Sections 4-207 and 4-208.]
Laboratory Management deposited into its account at Pulaski Bank a check issued by Fairway Farms in the amount of $150,000. The date of deposit was February 5. Pulaski, the depositary bank, initiated the collection process immediately by forwarding the check to Worthen Bank on the sixth. Worthen sent the check on for collection to M Bank Dallas, and M Bank Dallas, still on February 6, delivered the check to M Bank Fort Worth. That same day, M Bank Fort Worth delivered the check to the Fort Worth Clearinghouse. Because TAB/West Side, the drawee/payor bank, was not a clearinghouse member, it had to rely on TAB/Fort Worth for further transmittal of the check. TASI, a processing center used by both TAB/Fort Worth and TAB/West Side, received the check on the sixth and processed it as a reject item because of insufficient funds. On the seventh, TAB/West Side determined to return the check unpaid. TASI gave M Bank Dallas telephone notice of the return on February 7, but physically misrouted the check. Because of this, M Bank Dallas did not physically receive the check until February 19. However, M Bank notified Worthen by telephone on the fifteenth of the dishonor and return of the check. Worthen received the check on the twenty-first and notified Pulaski by telephone on the twenty-second. Pulaski actually received the check from Worthen on the twenty-third. On February 22 and 23, Laboratory Management’s checking account with Pulaski was $46,000. Pulaski did not freeze the account because it considered the return to be too late. The Laboratory Management account was finally frozen on April 30, when it had a balance of $1,400. Pulaski brings this suit against TAB/Fort Worth, Tab/Dallas, and TASI, alleging their notice of dishonor was not timely relayed to Pulaski. Please explain which party is correct in its assertion.
Collection of Items. Decision for Pulaski Bank & Trust. A payor bank’s liability is for the full amount of a check, whereas the collecting bank’s liability is for the full amount minus the loss that would not have occurred if the collecting bank had used ordinary care. TAB Ft. Worth was acting as TAB West Side’s transferor bank, and not its agent. TASI, acting as an agent for both TAB Ft. Worth and TAB West Side, made the appropriate ledger entries between West Side and Ft. Worth, reversing the transaction before midnight on February 7. TAB West Side had timely given notice of dishonor to its transferor/collecting bank prior to its midnight deadline. Pulaski Bank & Trust v. Texas American Bank, 759 S.W.2d 723 (Tex. App. 1988).
Tally held a savings account with American Security Bank. On seven occasions, Tally’s personal secretary, who received his bank statements and had custody of his passbook, forged Tally’s name on withdrawal slips that she then presented to the bank. The secretary obtained $52,825 in this manner. Three years after the secretary’s last fraudulent withdrawal she confessed to Tally who promptly notified the bank of the issue. Can Tally recover the funds from American Security Bank? Please explain.
Customer’s Duties. Partial summary judgment for American Security Bank granted. The U.C.C. imposes a duty upon a bank customer to inspect promptly statements and items either sent to the customer or reasonably made available to him. A customer must report any unauthorized signature on an item within one year from the time the item is made available. Tally first notified the bank of the irregularities some three years after his secretary’s last withdrawal. Tally claims, however, that the one-year time limit only holds when the periodic account statement is accompanied by the items supporting it. In this case, the savings withdrawal slips were retained on file by the bank. They were, however, effectively made available to Tally when the statement was sent. Tally should have reviewed the statement and reported any problems to the bank. Since he did not do so within the specified one-year time period, he cannot recover for the allegedly forged withdrawal orders paid by the bank.
During a period of sixteen months, Great Lakes Higher Education Corp. (Great Lakes), a not-for-profit student loan servicer, issued 224 student loan checks totaling $273,152.88. The checks were drawn against Great Lakes’s account at First Wisconsin National Bank of Milwaukee (First Wisconsin). Each of the 224 checks was presented to Austin Bank of Chicago (Austin) without indorsement of the named payee. Austin Bank accepted each check for purposes of collection and without delay forwarded each check to First Wisconsin for that purpose. First Wisconsin paid Austin Bank the face amount of each check even though the indorsement signature of the payee was not on any of the checks. Has Austin Bank breached its warranty to First Wisconsin and Great Lakes due to the absence of proper indorsements? Please explain.
Bank’s Duties . Negligence claims and breach of warranty to a third party are dismissed with prejudice. [Author’s Note: This case applies Revised Article 3 and 4.] Plaintiffs have claimed negligence in the presentment of checks as a theory of recovery. Presentment under the U.C.C. means “a demand made by or on behalf of a person entitled to enforce an instrument . . . .” U.C.C. § 3-501. Under U.C.C. § 4-202, a collecting bank such as Austin is required to use ordinary care in the presentment of checks or the sending of checks for presentment. Comment Two to this section indicates that where the collecting bank is itself presenting the check for payment, it must use ordinary care with respect to the time and manner of the presentment. However, where the collecting bank is merely sending the check for presentment, it must exercise ordinary care in the routing of the check and the selection of intermediary banks. In this case, Austin was merely sending the checks for presentment. Therefore, since, Austin used ordinary care with respect to routing and choosing intermediaries, it is not liable under § 4-202.
Great Lakes also alleges that it is the third party beneficiary of a transfer warranty owed by Austin to First Wisconsin under U.C.C. § 4-207. Section 4-207 provides, in relevant part, “a customer or collecting bank . . . warrants to the transferee and to any subsequent collecting bank that . . . all signatures on the item are authentic and authorized.” However, the majority of courts do not allow a drawer to maintain an action under § 4-207 as a third party beneficiary. Comment 2 to U.C.C. § 3-417, the minority position that a drawer may maintain such an action is specifically rejected. Therefore, Great Lakes’ claim that it is entitled to relief as a third party beneficiary of Austin’s § 4-207 warranty to First Wisconsin is dismissed.
Jones bought a used car from the A–Herts Car Rental System, which regularly sold its used equipment at the end of its fiscal year. First National Bank of Roxboro had previously obtained a perfected security interest in the car based upon its financing of A–Herts’s automobiles. Upon A–Herts’s failure to pay, First National is seeking to repossess the car from Jones. Does First National have an enforceable security interest in the car against Jones? Please explain.
Priorities of Secured Creditors Against Buyers . The answer depends upon whether Jones is buyer in the ordinary course of business and/or buyer of consumer goods or whether he has knowledge of the perfected security interest of the First National Bank of Roxboro. A buyer in the ordinary course of business is defined in 1-201 (9) as “a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in the ordinary course from a person in the business of selling goods of that kind.” It seems likely that Jones is a buyer in the ordinary course of business here, although the facts as stated are vague as to whether he qualifies for this status. If Jones qualifies as a buyer in the ordinary course of business, he takes the collateral free of any security interest created by A-Herts even if the security interest is perfected as here and even if he knows of its existence. §9-320(a). However, if he does know of its existence, this knowledge may raise an issue as to whether Jones is in fact dealing in good faith and as to whether he is buying with knowledge that the sale to him is in violation of the security interest of the bank. In the case of consumer goods, a buyer who buys without knowledge of a security interest, for value, and for his own personal, family or household use takes the goods free of any purchase money security interest automatically perfected, but takes the goods subject to a security interest perfected by filing. Thus, if Jones does not qualify for buyer in the ordinary course of business status, but is purchasing the goods as consumer goods, he takes them free of the bank’s security interest. If the bank for some reason neglected to file its financing statement, Jones will have priority. However, if the bank has filed a financing statement, then the bank will prevail. This problem is a good illustration of how important it is for the holder of a purchase money security interest to file a financing statement even though that holder may have an automatically perfected security interest.
This problem is loosely based on Hempstead Bank v. Andy’s Car Rental System, 312 N.Y.S.2d 317 (1970), in which the court found against the purchaser and held that “a buyer in the ordinary course of business” does not include a buyer of used cars from a rental agency that regularly sold its cars, since rental agencies are in the business of leasing, not selling cars.
On June 1, Smith contracted with Martin d/b/a Martin Publishing Company to distribute Martin’s newspapers and to account for the proceeds. As part of the contract, Smith agreed to furnish Martin a bond in the amount of $10,000 guaranteeing the payment of the proceeds. At the time the contract was executed and the credit extended, the bond was not furnished, and no mention was made as to the prospective sureties. On July 1, Smith signed the bond with Black and Blue signing as sureties. The bond recited the awarding of the contract for distribution of the newspapers as consideration for the bond.
On December 1, payment was due from Smith to Martin for the sum of $3,600 under the distributor’s contract. Demand for payment was made, but Smith failed to make payment. As a result, Martin brought an appropriate action against Black and Blue to recover the $3,600. What would be the result? Please explain.
Types of Sureties. Decision for Black and Blue. The promise of a surety is not binding without consideration. Here, the surety’s promise was made after the principal debtor (Smith) received an extension of credit from Martin Publishing Company. Consequently, Black and Blue’s suretyship promise must be supported by new consideration, which it was not. The extension of credit by Martin is not sufficient consideration because it was not contemporaneous with the sureties’ promise.
19. Anita bought a television set from Bertrum for her personal use. Bertrum, who was out of security agreement forms, showed Anita a form he had executed with Nathan, another consumer. Anita and Bertrum orally agreed to the terms of the form. Anita subsequently defaulted on payment, and Bertrum sought to repossess the television. (a) Please explain who would win. (b) Please explain whether the result would differ if Bertrum had filed a financing statement. (c) Please explain whether the result would differ if Anita had subsequently sent Bertrum an e-mail that met all the requirements of an effective security agreement?
Perfection by Possession .
a) Decision for Anita. Bertrum has neither perfected nor attached his security interest. In order for a security interest to be enforceable against the debtor it must attach, i.e.: (1) value has been given (2) the debtor has rights in the collateral, and (3) there must be an agreement between the debtor and secured party which in most instances must be authenticated by the debtor. Section 9-203(a). In the problem at hand Bertrum neither took possession of the collateral nor obtained an authenticated record; accordingly Bertrum’s security interest in the television set never became enforceable against Anita.
b) The decision would not differ if Bertrum had filed a financing statement unless the financing statement satisfied the requirements of a security agreement. Section 9-203 (1), 9-102.
c) If the e-mail satisfied the requirements of an authenticated record, sections 9-203, 9-102, Bertrum would prevail.
20. National Acceptance Company loaned Ultra Precision Industries $692,000, and to secure repayment of the loan, Ultra executed a chattel mortgage security agreement on National’s behalf on March 7, 2011. National perfected the security interest by timely filing a financing statement. Although the security interest covered specifically described equipment of Ultra, both the security agreement and the financing statement contained an after-acquired property clause that did not refer to any specific equipment.
Later in 2011 and in 2012, Ultra placed three separate orders for machines from Wolf Machinery Company. In each case it was agreed that after the machines had been shipped to Ultra and installed, Ultra would be given an opportunity to test them in operation for a reasonable period. If the machines passed inspection, Wolf would then provide financing that was satisfactory to Ultra. In all three cases, financing was arranged with Community Bank (Bank) and accepted, and a security interest was given in the machines. Furthermore, in each case a security agreement was entered into, and the secured parties then filed a financing statement within ten days. Ultra became bankrupt on October 7, 2014. National claimed that its security interest in the after-acquired machines should take priority over those of Wolf and Bank because their interests were not perfected by timely filed financing statements. Please explain who has priority in the disputed collateral.
Purchase Money Security Interest . Judgment for Wolf and Bank. Wolf and Bank provided funds for Ultra to purchase the machines and, therefore, had an interest classified as a purchase money security interest in equipment. National, on the other hand, had an ordinary secured interest in the equipment that it had properly perfected. Between these two conflicting interests, the purchase money security interest in the equipment has priority if it was perfected at the time that the debtor, Ultra, received possession of the collateral or within twenty days thereafter. . Section 9-324 (a). Here, Wolf and Bank filed financing statements long after the debtor received physical delivery of the machines but within twenty days of when Ultra completed testing and secured financing and thereby incurred the obligation to purchase the machines. Only when Ultra executed and delivered the security agreements on the machines did it become a debtor. Therefore, since the financing statements were filed within twenty days of that date, Wolf and Bank had properly perfected purchase money security interests in the machines that take priority over National’s claims.