Negotiable Instruments Credit and Bankruptcy

Document Sample
Negotiable Instruments Credit and Bankruptcy Powered By Docstoc
					Negotiable Instruments,
Credit and Bankruptcy

   Chapter 12
   Negotiable Instruments
• Functions of Negotiable Instruments
   – substitute for cash (checks for example)
   – provides way to extend credit (promissory
• Types of Negotiable Instruments
   – 3 party instruments used instead of cash and
     as credit device
      • Orders to Pay: Drafts
      • Orders to Pay: Checks
   – 2 party instruments used as credit device
      • Promises to Pay: Notes
      • Promises to Pay: Certificates of Deposit
           Negotiable Instruments and
           the Concept of Negotiability
• Can be transferred to another party
   – assigned - assignee has same rights and
     responsibilities as assignor
   – transferred by negotiation - transferee takes
     instruments free of transferor’s responsibilities
• transfer order instrument by:
   – payee endorses & delivers instrument to third party
• Bearer instruments
   – drawer may create “to bearer”; “to the order of
     bearer”, “payable to bearer,” “to cash” etc.
   – risky – if lost, finder can be cashed by finder
   – transfer bearer instrument by delivery
    UCC Requirements for
    Negotiable Instruments
• Only negotiable instruments fall under the UCC
• If nonnegotiable, the common law applies
• To be negotiable it must:
   – be written
   – be an unconditional order or promise to pay
   – be signed by the maker or drawer
   – be payable on demand or at a specified time
   – be made out “payable to order” (order paper)
      or “to bearer” (bearer paper)
   – must state a certain sum of money
    Requirements for Holders
         in Due Course
• Person in possession of negotiable
  instrument may be ordinary holder or holder
  in due course
• ordinary holder has same contract
  responsibilities as assignee – holder in due
  course does not
• to be holder in due course, transferee must:
   – give value for instrument
   – take instrument without knowledge it is
     overdue or defective
   – take instrument in good faith
                         Major Types of
                      Negotiable Instruments
• Drafts                                  • Checks
   – unconditional written promise to        – draft drawn on a bank
     pay                                       and payable on demand
       • drawer orders drawee to pay         – Checks used to be a
         $$ to payee                           major method of payment
       • time draft says at a specified      – Now credit & debit cards
         time                                  have largely replaced
       • sight draft gets paid upon
         presentation                        – on a cashier’s check the
                                               bank is both drawer and
   – sales draft – for sale of goods
   – In international, called a bill of
   – Bankers acceptance creates a
     guarantee by a bank that draft is
                      Lor-Mar/Toto, Inc. v. 1st
                        Constitution Bank
• Lor-Mar had a business checking account at 1st Constitution Bank.
• Resolution between Lor-Mar & bank allowed checks to be paid if they
  had a signature of either Van Middlesworth or Toto.
• Bank given samples of their stamped signatures.
• Five bogus checks for $24,350 were written against the account; paid
  by bank. Lor-Mar saw problem in monthly statement.
• Bad checks had all correct information, but on different paper stock
  and color used by Lor-Mar.
• Checks had different “security features” from standard checks.
• Had signatures that looked like Van Middlesworth’s stamped
• Bank allowed customers to use checks not provided by bank.
• Bank thought the signature appeared the same, so it held the
  payment proper.
• Lor-Mar sued.
• Trial court held for Lor-Mar. Bank appealed.
                        Lor-Mar/Toto, Inc. v. 1st
                        Constitution Bank, cont.
• ISSUE: Whether the fraudulent checks were authorized by Lor-Mar
  and were they in accordance with the agreement between Lor-Mar
  and the Bank?
• In New Jersey, strict liability of bank can be shifted to the customer
  as long as the bank lives up to its statutory duty of good faith.
• Parties can agree for bank to honor checks bearing a facsimile
  signature that resembles the specimen on file, BUT must have
  clear and unambiguous language of shifting the risk to the
  customer for a forged facsimile signature resembling the specimen
  on file – didn’t happen here.
• Lor-Mar did not expressly know and assume all risks in the
  unauthorized use of its officer’s facsimile signature.
• No meeting of the minds modifying the customer’s rights.
• HELD: Affirmed. Bank paid improperly.
Promises to Pay
• Notes
   – promise by the maker • Certificates of
     to pay certain $ to    Deposit
                            – bank is maker of
• usually called
                              certificate & promises
  promissory notes
                              to repay customer
• but also have               payee
   – collateral note        – most large certificates
   – real estate mortgage     are negotiable which
     note                     allows them to be
   – installment note         sold, used to pay
   – balloon note             debts or used as
• Creditor: lends money
• Debtor: to whom money is lent
• Principal: the sum of the debt owed
• Equity financing: sale of stock in company or negotiable
  instruments subject to securities regulation
• Debt financing: borrowing money evidenced by contract
• Credit Policy focuses on characteristics such as:
   – capacity (the debtor’s ability to pay)
   – capital (the debtor’s financial condition)
   – character (the debtor’s reputation)
   – collateral (the debtor’s assets to secure the debt)
   – conditions (the economic situation affecting the
     debtor’s business)
           Credit Accounts
• Open Account
   – must pay within fixed time
• Installment Account
   – repay through regular
     (usually monthly)
• Revolving Account
   – make minimum payment &
     can add new debt – credit
     cards work this way
            Credit with Security
        When creditor can take property of debtor to
        satisfy debt – can happen by agreement or
  by    operation of law

• By Agreement - depends if property is real or
• Suretyship - promise by a third party to pay debt
  if debtor doesn’t
• Defenses of Sureties - since debt falls under
  contract law, there are the same defenses that the
  principal (debtor) has – including, impossibility,
  illegality, duress, fraud
                 General Electric Business
              Financial Services v. Silverman
• Warren Park Partners, Ltd. borrowed $34.8 million from GE Financial.
• Bought land in Frisco, Texas. Silverman & partners signed a guaranty
  “absolutely, unconditionally” guaranteeing full payment.
• Silverman also signed “Limited Joinder” guaranteeing full repayment
  of loan even if Warren Park went bankrupt.
• Warren Park defaulted; went into bankruptcy.
• GE demanded payment from Silverman; he did not pay; GE sued.
• Silverman & parties claimed affirmative defenses of (1) fraud, (2)
  extortion, (3) theft & (4) economic duress.
• Said hours before signing the documents, GE notified them changes
  in terms of the agreement.
• They had no time to contest, as loan was needed immediately.
• He signed agreement because he was trapped.
• Claimed GE employee told him new terms would not be enforced.
• GE moved for summary judgment .
            General Electric Business Financial
                  Services v. Silverman
•   HELD: Summary judgment for GE.
•   Breach of limited joinder (a contract claim) and breach of guaranty.
•   GE offered evidence of both claims that defendants did not contest.
•   Instead defendants asserted the 4 affirmative defenses (above).
•   GE argued even if affirmative defenses are true, allegations are barred
    by the Credit Agreement Act (ICAA).
•   ICAA bars all actions or defenses by a debtor based on an oral
    agreement (similar to Statute of Frauds).
•   Defendants didn’t dispute that they made “credit agreements”.
•   Defendants say ICAA does not bar their affirmative defenses.
•   They also argue “unclean hands” of the plaintiff, GE.
•   The court was not swayed, because –
•   Oral promises by GE would contradict the terms of the contract;
    therefore the ICAA bars defendant’s affirmative defenses.
•   Silverman loses.
                    Credit with Security
                 Perfected Security Interest
•   Secured Transactions                                • Default by Debtor
     – product may secure debt                             – Some property my
     – commercial sale of goods - UCC Article 9              be exempt, i.e.
     – must create security interest - be sure it is:        homestead
                                                             exemption (when
     – 1. attached (Attachment)                              personal assets
          • signed by customer                               have been placed as
          • seller provided value                            collateral
          • customer has legal, transferable rights        – Default is when the
            in collateral                                    buyer doesn’t repay
     – 2. perfected (Perfection)                           – creditor can take
          • filing w/proper state official (online)          back property and
•   Interests in Inventory                                   keep or may resell it
                                                             (in a “commercially
     – As collateral, equipment, inventory, raw              reasonable
        materials (tangible property) are used as            manner”)
                                                           – any excess from
•   “Floating Lien” Inventory                                sale of repossessed
     – Goods held for sale and raw materials                 property over debt
     – Inventory is constantly changing                      owed must be
                                                             returned to debtor
                  Fordyce Bank & Trust v.
                     Bean Timberland
• Bank made loans to Bean Timberland so it could buy
  timber from landowners.
• Bean would cut timber and sell logs to Potlatch and Idaho
  Timber (P&I). Revenue from sales would repay loans.
• Bank perfected its interest by filing UCC Financing
  Statement with the Arkansas Secretary of State Office.
• Bean sold timber but failed to repay loans; went bankrupt.
• Bank sued P&I because Bank had a priority interest in
  timber sale proceeds.
• Bank said P&I was negligent in its dealings for failing to do
  a lien search and did not “exercise good faith” required
  under the UCC.
• Trial court held for P&I, ruling they were not negligent.
• Trial court said that P&I was not required to perform a
  security interest search in the “ordinary course of
  business.” Bank appealed.
   Fordyce Bank & Trust v. Bean Timberland
• Under Arkansas UCC 9-320, a buyer in the ordinary course
  of business (P&I) “takes free of a security interest created
  by the buyer’s seller [Bean], even if the security interest is
  perfected [by the bank] and buyer knows of its existence.”
• If P&I were buyers in “ordinary course of business.” No
  duty to perform a lien search. Even if they knew of bank’s
  security interest, P&I can take free of Bank’s interest.
• HELD: Affirmed. Evidence that purchasing timber brought
  to the mill’s front gate without performing a lien search is
  standard timber industry practice.
• P&I’s actions were “usual or customary practices” in the
  timber industry, and they were therefore “buyers in the
  ordinary course of business.” No duty to the bank to
  conduct a lien search.
             Real Estate Financing
• Mortgage: Real estate is used to secure a debt
  obligation evidence by a mortgage
• Debtor is the mortgagor
• Creditor is the mortgagee
• Mortgage is a lien in most states
• In case of default, the mortgagee has the right to
  foreclose on the property
• Deficiency judgment: If proceeds from
  foreclosure not sufficient, a separate legal action
  against debtor is maintained
• Statutory redemption: Period of time mortgagor
  has the right to redeem the property by paying
  the debt (normally within 6 months after default)
          Liens (Nonconsensual Lien)
                Obtained by operation of law.
• Should be removed before property is sold
• Mechanic’s Lien
   – party that furnished material, labor, or services for
     construction or repair of building or other real property
     places the lien
• Possessory or Artisan’s Lien
   – party that added value to or cared for personal property
     places the lien
• Court-Decreed Liens
   – Attachment lien is court-ordered seizure of goods
     through writ of attachment
   – Judgment lien occurs when creditor has successful
     action against debtor
   – If debtor doesn’t pay judgment, creditor asks court for a
     writ of execution

• Purpose: orderly resolution when debtor owes more
  than can be paid.
• Federal Bankruptcy Code has been amended – most
  recent revision was The Bankruptcy Abuse
  Prevention and Consumer Protection Act of 2005.
• Most bankruptcies involve individuals.
• Chapter 7 (Liquidation)
• Chapter 13 (Reorganization of debts)
• Chapter 11 (Business wishes to remain in operation
  and not be liquidated.)
            Personal Bankruptcy
• Most bankruptcies involve individuals
• Means businesses do not get paid
• Dept. of Justice’s U.S. Trustee Program approves
  organizations to provide mandatory credit counseling
• Credit counseling must be taken before filing bankruptcy
• Debtor education is taken after filing
• Income and Means Testing
   – Income test determines if person files under Chapter 7
     or Chapter 13
   – People with higher income less likely to have debts
   – Test of income against expenditures – to see if person
     has above average income for a given area
 Bankruptcy : Chapter 7 Proceedings
• Most bankruptcies are voluntary, but
  creditors may force an involuntary
• Upon filing, there is a freeze on actions
  against the debtor and the debtor’s
• Trustee is appointed to administer the
  debtor’s estate
• Assets are liquidated and proceeds
  distributed to creditors.
• Liquidation and fair distribution of debtor’s
  non-exempt assets to creditors
             Bankruptcy Chapter 7
• Used to be the most commonly used (now about half)
• Since 2005 reforms, many people forced into Chapter 13
• Chapter 7 means liquidation of debts and fair distribution
  of debtor’s non-exempt assets
• Liquidating bankruptcy available for businesses under
  Ch. 7, but only individuals can be discharged under Ch 7.
• Bankruptcy petition provides
   – Statement of the financial affairs of debtor
   – List of all creditors & addresses, with amounts owed
   – List of properties owned by debtor
   – Statement of current income & expenses of debtor
   – Priority of creditors
         Bankruptcy - Chapter 13
• Available only to individuals.
• Sole proprietorship may file under Chapter 13.
• Debtor files plan for payment of creditors over time
  (installment repayment plan).
• Debtor keeps property and shares administration of the
  bankrupt estate with court-appointed trustee.
• Trustee collects income from debtor; pays creditors.
• Payments made under approved Confirmation Plan
• Debts of those bankrupt not discharged.
• Plan usually is accomplished within 5 years.
• Long-term secured debt (i.e. house mortgage) treated
• If plan fails, possible to shift to Ch 7 for total discharge.
Bankruptcy - Chapter 7
     • Priority of classes of creditors
        – secured creditors
        – costs of preserving and
          administering debtor’s estate
        – unpaid wage claims
        – refund of security deposits
        – alimony and child support
        – taxes
        – unsecured creditors
     • All creditors of particular class must
       be paid before going to next class
                     In re Darby
• After Darby filed Chapter 13 bankruptcy, Time Warner
  canceled his cable service.
• Darby filed motion with bankruptcy court to compel Time
  Warner to reinstate his service, with his assurances of
  future payment.
• Bankruptcy Court and District Court ruled that cable
  service was not a “utility” that must be provided as a
  “necessity” under law. Darby appealed.
• HELD: Affirmed. Cable service is not a “necessity”.
• Bankruptcy laws give protections to debtors from cut-off
  of service by a utility after they file for bankruptcy.
• Utilities are “necessities” and must be provided to
   – Include electric company, gas supplier or telephone
• Cable service not a “necessity” and bankruptcy court
  need not require its reinstatement to Darby.
            Bankruptcy Chapter 11
• Allows businesses to keep operating,
  without liquidation of assets
• “Prepackaged” bankruptcy filings: debtor &
  creditors settle issues before debtor files,
  and court then approves
• Reorganization
   – stays further action by creditors
   – debtor acts as trustee, called debtor in
     possession, to run business for benefit of
     all parties
   – creditors are satisfied by class in order of
     priority of claims
               In the Matter of Kmart Corporation

• Kmart, in Chapter 11 bankruptcy, requested to pay, in full,
  claims of “critical vendors.”
• Kmart said that if it didn’t pay these vendors, they would
  not do business in the future and were necessary for
  Kmart to stay in operation. Changed the order of unpaid
  creditors (vendors).
• Bankruptcy judge agreed – granted order.
• Kmart determined the critical vendors, paying 2330
  suppliers $300 million.
• 2000 unpaid vendors, and 43,000 additional unsecured
  creditors received 10 cents on the dollar (mostly in stock
  of reorganized company).
• Some creditors appealed. District court reversed order of
  payments to critical vendors. Decision was appealed.
            In the Matter of Kmart Corporation

• HELD: Affirmed.
• Kmart argued that the District Court’s reversal order was
  too late – money had already changed hands.
• Too bad. To order payment of critical vendors, it is
  necessary to show
   – 1) disfavored creditors will be as well off with
     reorganization as with liquidation (this was never
     demonstrated), and
   – 2) that critical vendors would cease deliveries if old
     debts were left unpaid during litigation.
• #2 was not always true, i.e. some of the critical vendors
  must continue business due to long-term contracts

Shared By: