enforcing an instrument

Question 1

prima facie case

Answer 1

-P seeking enforcement must prove 1) the P is a person entitled to enforce the instrument and 2) the signatures on the instrument are valid

Question 2

person entitled to enforce

Answer 2

1) a holder
2) non-holder in possession of the instrument who has the rights of a holder OR
3) a person not in possession but who has the right to enforce (eg: instrument has been lost or stolen

Question 3

validity of signatures

Answer 3

• accepted as authentic unless specifically denied in the pleadings
• the party claiming validity generally has the burden of proving the signatures are valid

Question 4

defenses

Answer 4

• once the P establishes the prima facie case, D can assert any real or personal defenses at his disposal.
• if P is HDC, P can re-establish the right to payment if only the defenses proferred are personal defenses

Question 5

lost, destroyed, or stolen instrument

Answer 5

• P has the right to enforce an instrument even if the instrument was lost or stolen
• as long as the loss of possession did not result from the holder transferring the instrument, and the holder cannot reasonably obtain possession of the instrument because the instrument is lost or destroyed

Question 6

conversion

Answer 6

• a person converts the prop of another when he wrongfully deprives the other of that property or its value
• instrument is converted if it is taken by transfer other than a negotiation from a person not entitled to enforce the instrument or receive payment
• measure of liability is generally the amount payable on the instrument

Question 7

who can’t bring an action for conversion

Answer 7

• issuer and acceptors– other remedies

- payees and endorsees who did not receive delivery of instrument may not bring conversion actions