Business Law and the Regulation of Business 11th Edition by Richard Mann, Barry Roberts

Exercise 14

FACTS In the mid-1990s, D. J. Rivera, a ''financial advisor,'' sold ninety-three-year-old John G. Talcott, Jr. an investment for ''somewhere in the amount of $75,000.'' The investment produced no returns. On December 7, 1999, Salvatore Guarino, a cohort of Rivera, established check-cashing privileges at Any Kind Checks Cashed, Inc. That day, he cashed a $450 check without incident. On January 10, 2000, Rivera telephoned Talcott and talked him into sending him a check for $10,000 made out to Guarino, which was to be used for travel expenses to obtain a return on the original $75,000 investment. Rivera received the check on January 11. On that same morning Rivera spoke to Talcott and stated that the $10,000 was more than what was needed for travel. He said that $5,700 would meet the travel costs. Talcott called his bank and stopped payment on the $10,000 check.
In spite of what Rivera told Talcott, Guarino appeared at Any Kind's Stuart, Florida, office on January 11 and presented the $10,000 check to Nancy Michael. She was a supervisor with the company with the authority to approve checks over $2,000. Guarino showed Michael his driver's license and the Federal Express envelope from Talcott in which he received the check. She asked him the purpose of the check, and he told her that he was a broker and that the maker of the check had sent it as an investment. She was unable to contact Talcott by telephone. Based on her experience, Michael believed the check was good. The Federal Express envelope was ''very crucial'' to her decision, because it indicated that the maker of the check had sent it to the payee trying to cash the check. After deducting the 5 percent fee, Michael cashed the check and gave Guarino $9,500.
On January 15, 2000, Rivera called Talcott and asked about the $5,700, again promising to send him a return on his investment. The same day, Talcott sent a check for $5,700. He assumed that Rivera knew that he had stopped payment on the $10,000 check. On January 17, 2000, Guarino went into the Stuart branch of the Any Kind store and presented the $5,700 check payable to him to the teller, Joanne Kochakian. He showed her the Federal Express envelope in which the check had come. Kochakian noticed that Michael had previously approved the $10,000 check. She called Michael, who was working at another location, and told her about Guarino's check. Any Kind had no written procedures that a supervisor was required to follow in deciding which checks over $2,000 to cash. Michael instructed the cashier not to cash the check until she contacted Talcott, to obtain approval. On her first attempt, Kochakian received no answer. On the second call, Talcott approved cashing the $5,700 check. There was no discussion of the $10,000 check. Any Kind cashed the second check for Guarino, and deducted a 3 percent fee.
On January 19, Rivera called Talcott to warn him that Guarino was a cheat and a thief. Talcott immediately called his bank and stopped payment on the $5,700 check. Talcott's daughter called Any Kind and told it of the stop payment on the $5,700 check.
Any Kind filed a two-count complaint against Guarino and Talcott, claiming that it was a holder in due course. Talcott's defense was that Any Kind was not a holder in due course and that his obligation on the checks was nullified because of Guarino's illegal acts.
The trial court entered final judgment in favor of Any Kind for only the $5,700 check. On the $10,000 check, the judge found for Talcott. The court held that the check-cashing store was not a holder in due course, because the procedures it followed with the $10,000 check did not comport with reasonable commercial standards of fair dealing. The court found that the circumstances surrounding the cashing of the $10,000 check were sufficient to put Any Kind on notice of potential defenses.
DECISION Judgment of the trial court affirmed.
OPINION Gross, J. Using the terminology of the Uniform Commercial Code, Talcott was the *** ''drawer'' of the check, the person who signed the draft ''as a person ordering payment.'' [UCC § 3-103(3)(a)] By Federal Expressing the check to Guarino, Talcott issued the check to him. See [UCC § 3-105(a)] (defining ''issue'' as ''the first delivery of an instrument by the maker or drawer … for the purpose of giving rights on the instrument to any person''). Guarino indorsed the check and cashed it with Any Kind. See [UCC § 3-204 (a)] (defining ''indorsement''). Any Kind immediately made the funds available to Guarino, less its fee. Talcott stopped payment on the check with his bank, so the check was returned to Any Kind. See [UCC § 4.403(a)] (regarding a customer's right to stop payment).
When Guarino negotiated the check with Any Kind, it became a holder of the check, making it a ''person entitled to enforce'' the instrument. See [UCC §§ 3.201 (a),.203 (b),.301 (a)]. As the drawer of the check dishonored by his bank, Talcott's obligation was to pay the draft to a person entitled to enforce the draft ''according to its terms at the time it was issued.…'' [UCC § 3.414(a)].
Unless Any Kind is a holder in due course, its right to enforce Talcott's obligation to pay the draft is subject to (1) all defenses Talcott could raise ''if the person entitled to enforce the instrument were enforcing a right to payment under a simple contract,'' and (2) a claim of ''recoupment'' Talcott could raise against Guarino. [UCC § 3.305 (a) (b)]. Because Talcott was fraudulently induced to issue the checks, this case turns on Any Kind's entitlement to holder in due course status.
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The good faith requirement of the holder in due course doctrine ''has been the source of an ancient and continuing dispute.'' [Citation]. On the one hand, should the courts apply a so-called objective test, and ask whether a reasonably prudent person, behaving the way the alleged holder in due course behaved, would have been acting in good faith? Or should the courts instead apply a subjective test and examine the person's actual behavior, however stupid and irrespective of the reaction a reasonably prudent person would have had in the same circumstance? The legal establishment has steered a crooked course through this debate. [Citations.]
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Application of [old UCC's] ''honesty in fact'' standard to Any Kind's conduct in this case would clothe it with holder in due course status. It is undisputed that Any Kind's employees were pure of heart, that they acted without knowledge of Guarino's wrongdoing.
However, in 1992, the legislature adopted a new definition of ''good faith'' that applies to the [UCC] section 3.302 definition of a holder in due course: '''good faith' means honesty in fact and the observance of reasonable commercial standards of fair dealing.'' [Citation.] To the old, subjective good faith, ''honesty in fact'' standard, the legislature added an objective component-the ''pure heart of the holder must now be accompanied by reasoning that assures conduct comporting with reasonable commercial standards of fair dealing.'' [Citation.] No longer may a holder of an instrument act with ''a pure heart and an empty head and still obtain holder in due course status.'' [Citation.]
Comment 4 to section 3.103, Florida Statutes Annotated, attempts to shed light on how to interpret the new standard:
Although fair dealing is a broad term that must be defined in context, it is clear that it is concerned with the fairness of conduct rather than the care with which an act is performed. Failure to exercise ordinary care in conducting a transaction is an entirely different concept than failure to deal fairly in conducting the transaction.
The Code does not define the term ''fair dealing.'' ***
Application of holder in due course status is the law's value judgment that certain holders are worthy of protection from certain types of claims. For example, it has been argued that application of the old subjective standard facilitated the transfer of checks in the stream of commerce; arguably one would be ''more willing to accept the checks if … she knows … she can be a holder in due course of that instrument and take it free of defenses that might have existed between the buyer and the seller in the underlying transaction.'' [Citation.] In applying the new standard, ''fairness'' should be measured by taking a global view of the underlying transaction and all of its participants. A holder ''must act in a way that is fair according to commercial standards that are themselves reasonable.'' [Citation.]
To apply the law requiring ''good faith'' under section 3.302 (a), we adopt the analysis set forth by the Supreme Court of Maine:
The factfinder must … determine, first, whether the conduct of the holder comported with industry or ''commercial'' standards applicable to the transaction and, second, whether those standards were reasonable standards intended to result in fair dealing. Each of those determinations must be made in the context of the specific transaction at hand. If the factfinder's conclusion on each point is ''yes,'' the holder will be determined to have acted in good faith even if, in the individual transaction at issue, the result appears unreasonable. Thus a holder may be accorded holder in due course status where it acts pursuant to those reasonable commercial standards of fair dealing-even if it is negligent-but may lose that status, even where it complies with commercial standards, if those standards are not reasonably related to achieving fair dealing. [Citation.]
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Check cashing businesses occupy a special niche in the financial industry. They are part of the ''alternative financial services'' or ''fringe banking'' sector, a part of the market that ''has become a major source of traditional banking services for low-income and working poor consumers, residents of minority neighborhoods, and people with blemished credit histories.'' [Citations.]
***
Against this backdrop, we cannot say that the trial court erred in finding that the $10,000 check was a red flag. The $10,000 personal check was not the typical check cashed at a check cashing outlet. The size of the check, in the context of the check cashing business, was a proper factor to consider under the objective standard of good faith in deciding whether Any Kind was a holder in due course. [Citation.]
Guarino was not the typical customer of a check cashing outlet. As the trial judge observed, because of the 5% fee charged, it is unusual for a small businessman such as a broker to conduct business through a check cashing store instead of through a traditional bank. Guarino did not have a history with Any Kind of cashing checks of similar size without incident. The need for speed in a business transaction is usually less acute than for someone cashing a paycheck or welfare check to pay for life's necessities. The need for speed in cashing a large business check is consistent with a drawer who, for whatever reason, might stop payment. Fair dealing in this case required that the $10,000 check be approached with a degree of caution.
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To affirm the trial court is not to wreak havoc with the check cashing industry. Verification with the maker of a check will not be necessary to preserve holder in due course status in the vast majority of cases arising from check cashing outlets. This was neither the typical customer, nor the typical transaction of a check cashing outlet.
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The legislature's addition of an objective standard of conduct may well have the effect of ''slowing the 'wheels of commerce''' in some transactions. [Citation.] However, by adopting changes to the ''good faith'' standard in the holder in due course doctrine, the legislature ''necessarily must have concluded that the addition of the objective requirement to the definition of 'good faith' serves an important goal. The paramount necessity of unquestioned negotiability has given way, at least in part to the desire for reasonable commercial fairness in negotiable transactions.'' [Citation.] In this case, reasonable commercial fairness required Any Kind to approach the $10,000 check with some caution and to verify it with the maker if it wanted to preserve its holder in due course status.
INTERPRETATION With respect to establishing holder in due course status, ''good faith'' means honesty in fact and the observance of reasonable commercial standards of fair dealing.
ETHICAL QUESTION Did any of the parties act unethically? Explain.
CRITICAL THINKING QUESTION Do you agree with the position taken by Revised Article 3? Explain.