Borrowing Money Most businesses rely on credit to buy supplies or equipment. The business will use –Negotiable instruments (sometimes called commercial paper) or –Secured transactions Both are governed by the Uniform Commercial Code
Negotiable Instruments A contract to pay money A negotiable instrument is used as –A substitute for money –A loan of money Money is not a negotiable instrument Article 3 of the UCC (RCW 62A.3) applies
Purpose UCC 3 is designed to facilitate commerce – to make pieces of paper into something that is almost as reliable and transferable as money.
Foundation The fundamental rule of negotiable instruments: –The possessor of a piece of commercial paper has an unconditional right to be paid, as long as The paper is negotiable It has been negotiated to the possessor The possessor is a holder in due course The issuer cannot claim any of a limited number of “real” defenses
Types Four specific types of negotiable instruments –Notes (promissory notes) –Certificates of Deposit –Drafts –Checks
Promissory Note A promise to pay money, whereby the maker signs the instrument, promising to pay money to the payee. The note can be collectable either on a specific date in the future (time note) or at any time the payee decides to collect (demand note).
Certificate of Deposit If a note is made by a bank, it is called a certificate of deposit.
Draft and Checks A draft is a three-party instrument in which the drawer orders the drawee to pay money to the payee.
Negotiability Six requirements – Must be –In writing –Signed by the maker or drawing –An unconditional promise or order to pay –For a stated fixed amount of money –Payable on demand or at a definite time –Payable to bearer or order
Transfer Transfer creates a holder, who at the very least receives the rights of a previous possessor.
The Holder A holder of a negotiable instrument is a person who –Has bearer paper (payable to bearer) –Has order paper (payable to the order of a specific person) which is properly endorsed A holder takes the instrument subject to all of the defenses that could have been brought against the original payee.
Holder in Due Course A holder in due course has an automatic right to receive payment for a negotiable instrument – this may even be more than the previous possessor. A holder in due course takes free of most claims against payment. The holder in due course is exempt from defenses that could have been made against the original payee.
Holder in Due Course There are 5 requirements that must be satisfied to be a holder in due course –Must be a holder –Of a negotiable instrument –Who took for value –In good faith –Without notice of any outstanding claims or other defects
Taking for Value Holder can take value by: –Performing the instrument’s promise –Acquiring a security interest or other lien in the instrument –Taking instrument in payment for an antecedent debt –Giving a negotiable instrument as payment –Giving irrevocable commitment as payment
Good Faith The holder must meet both of these tests: –Subjective test. Did the holder believe the transaction was honest in fact? –Objective test. Did the transaction appear to be commercially reasonable? Only applies to holder, not the transferor
Taking Without Notice Holder is on notice that an instrument has an outstanding claim or defect if there is reason to know: –Instrument is overdue –Instrument has been dishonored –Actual knowledge or any suspicious event –That a claim or defense exists –Instrument is altered forged or incomplete
Holder through an HDC Shelter Rule –A transferor of an instrument passes on all of his rights. When a holder in due course transfers an instrument, the recipient acquires all the same rights – even if he is not a holder in due course himself. Limitations on the shelter principle if new holder engaged in fraud or illegality.
Payment Process Presentment – holder demands payment from one who is obligated to pay –Must exhibit the instrument –Show identification –Surrender the instrument (if paid in full) or give a receipt (if only partially paid)
Payment Process Dishonor – The maker or drawee refuses to pay Notice of Dishonor – Given to those who are secondarily liable (i.e., check stamped “insufficient funds”)
Liability There are two kinds of liability associated with negotiable instruments: –Signature liability –Warranty liability
The Basic Rules The culprit is always liable –If a forger signs someone else’s name to an instrument, that signature counts as the forger’s signature, not as that of the person whose signature was forged The drawee bank is liable if it pays a check on which the drawer’s name is forged In other cases, a person who first acquires an instrument from a culprit is liable to anyone else who pays value for it.
Transfer Warranties A person who transfers an instrument warrants that: –She is a holder of the instrument –All signatures are authentic and authorized –The instrument has not been altered –No defense can be asserted against her –The issuer is solvent
Presentment Warranties Anyone who presents a check warrants that –He is a holder –The check has not be altered –He has no reason to believe the drawer’s signature is forged Anyone who presents a promissory note for payment warrants only that he is a holder of the instrument
Defenses Universal (or real) and personal defenses are valid against any ordinary holder Only real defenses can be used against a holder in due course
Real Defenses Forgery Bankruptcy Minority Alteration Mental incapacity Duress Illegality Fraud in the execution
Personal Defenses Breach of contract Lack of consideration Prior Payment Unauthorized completion Fraud in the inducement
Consumer Paper Notes labeled “consumer paper” (consumer credit contracts) are not negotiable instruments because they are nonnegotiable. –A holder (even an HDC) has the same rights as the person who made the contract
Discharge Discharge from the obligation or from liability occurs in one of 5 ways –Proper payment –Agreement –Cancellation –Certification –Alteration
Ambiguities UCC favors negotiability. In interpreting negotiable instruments, courts should construe the paper so that –Words take precedence over numbers –Handwritten terms prevail over typed and printed terms –Typed terms win over printed terms
The Bank’s Duties A bank must pay a check if it is authorized by the customer and complies with the terms of the checking account agreement. If a bank wrongfully dishonors an authorized check, it is liable to the customer for all actual and consequential damages.
Secured Transactions Article 9A of the UCC governs secured transactions. In a secured transaction, the debtor’s promise to pay is “secured” by something of value that the creditor can seize if the debtor fails to make good on his or her promise to pay. The valued property is “collateral”
Purpose UCC 9A addresses the creditor’s two concerns –Can the collateral be seized if the debtor defaults? –Will the creditor have priority over other creditors with rights to the same property?
The Property Article 9A applies to any transaction intended to create a security interest in personal property or fixtures. This could include –Goods –Inventory –Negotiable instruments –Investment property –Other intangible property
Attachment “Attachment” is the UCC’s term for describing the enforceability of the creditor’s right to seize collateral. Three steps are required: –The creditor must have a signed security agreement and –Must have given something of value –The debtor must have rights in the collateral
Security Agreement The security agreement must contain a description of the collateral and must be signed by the debtor.
Perfection In order for a creditor to have priority over other creditors, the creditor must have a perfected security interest. This requires: –Possession of the collateral or –Filing of a financing statement or –Giving money for the purchase of consumer goods (purchase money security interest)
Possession The secured party may take possession of the goods (this may or may not be in conjunction with filing). –Must use reasonable care in the custody and preservation of the collateral
Filing The most common way of perfecting –File financing statement with appropriate state agency Financing statement provides –Name of debtor –Name of secured party –Identification of collateral
Purchase Money A purchase money security interest is the interest taken by the person who sells the collateral or by the person who advances the money so the debtor can by the collateral. This interest is perfected automatically, without filing.
Buyer of Secured Goods A buyer in the ordinary course of business has the highest right to the goods.
Priority The general order of priority among creditors and buyers is: –Buyer in the ordinary course of business –Perfected purchase money security interest –Perfected security interest –Lien creditors –Unperfected security interests –General creditors
Default If the debtor defaults, the secured party may take possession of the collateral without any court order –The secured party may sell or otherwise dispose of the collateral in any commercially reasonable manner –May retain the collateral as satisfaction of the debt
Termination Once the debt is paid in full, the secured party must complete a termination statement –Document indicating that secured party no longer claims an interest in the collateral.
Bankruptcy Federal law Purposes: –Rehabilitation of the debtor –Liquidation Fairly divide debtor’s assets
Common Options Chapter 7 - Liquidation of all existing assets Chapter 11 - Business reorganization Chapter 13 – Individual reorganization
Process Petition –Voluntary (by debtor) –Involuntary (by creditors) Trustee is appointed to gather and distribute assets Meeting of creditors Payment of Claims Discharge www.uscourts.gov/bkforms/index.html