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Fifth Third Bank v. Jones
payoff department. Approximately one week later, it was noted in the
debtor of the loss, and both parties searched, without success, for a copy
amount of a payoff-actually probably a little bit more than the full amount of
the payoff.
Judgment was entered in favor of the debtor, and the foreclosure was
terminated.
The bank filed post-trial motions, including a motion for a new trial on the
for the payoff amount. We are not persuaded.
[1] Link to KeyCite Notes[2] Link to KeyCite Notes When sufficiency of the
evidence is challenged on appeal, an appellate court must determine
whether the evidence, viewed as a whole and in the light most favorable to
the prevailing party, is sufficient to support the verdict. Parr v. Triple L & J
bank's assertion that it is entitled to a de novo standard of review.
[3] Link to KeyCite Notes Here, the trial court's conclusion that the check
“was either a cashier's check or certified funds or a certified check” was
supported by the bank representative's testimony that if the bank had
received a personal check instead of certified funds, a notation would have
down to the “payoff department.”
The trial court's conclusion that the check was “for the full amount of a
payoff” also has support in the testimony of the bank representative.
Specifically, she testified that when she received the check, she “assumed
it was a payoff.” While she testified that she had not determined whether
finding that the check “was either a cashier's check or certified funds or a
certified check” and that the check was “for the full amount of a payoff.”
II.
The bank asserts that the trial court erred as a matter of law by ruling that
the promissory note was paid in full because the missing check was not
extent discharge would result if an amount of money equal to the amount
of the instrument were taken in payment of the obligation. Discharge of the
obligation does not affect any liability that the obligor may have as an
endorser of the instrument.
(Emphasis added.)
General Assembly, looking first to the statute's plain language. In re 2000-
2001 Dist. Grand Jury, 97 P.3d 921, 924 (Colo.2004). If a statute is clear
and unambiguous on its face, then we need not look beyond the plain
language and must apply the statute as written. Garhart ex rel. Tinsman v.
Columbia/HealthONE, L.L.C., 95 P.3d 571, 591 (Colo.2004).
payment of an obligation. In that case the obligation is discharged unless
there is an agreement to the contrary.” Section 4-3-310 cmt. 2 (emphasis
added). This comment indicates that the drafters intended that the taking
for an obligation occurs simultaneously with the giving of the payment. This
interpretation corresponds with the plain meaning of the verb “take,” which
the check is paid, certified, or dishonored. The bank's interpretation of
“taken for an obligation” would render subsection (b) meaningless.
Further, case law supports this interpretation. As used in the Uniform
Commercial Code, certified or bank checks are the equivalent of cash in
satisfying the underlying obligation. Section 4-3-310(a); Harrington v.
cashier's check, money order, or currency passes with delivery to the
person who receives it in good faith and for valuable consideration.
Transamerica Ins. Co. v. Long, 318 F.Supp. 156, 160 (W.D.Pa.1970); see
also Chen v. Roosevelt & Main St. Realty Corp., 131 Misc.2d 572, 574,
500 N.Y.S.2d 948, 950 (Sup.Ct.1986) (“Plaintiffs' acceptance ... of the
The bank's reliance on Transamerica Ins. Co. v. Long, supra, 318 F.Supp.
at 160, and Am. Fed. Sav. & Loan Ass'n v. Madison Valley Props. Inc., 288
Mont. 365, 958 P.2d 57, 65-66 (1998), is unavailing. Those cases hold that
in some situations, an instrument purchased with stolen funds can defeat
the holder's title to the proceeds.
requesting payment of the amount of the check.” Section 4-3-312(b),
C.R.S.2006. In this context, “ ‘[c]laimant’ means a person who claims the
right to receive the amount of a cashier's check, teller's check, or certified
check that was lost, destroyed, or stolen.” Section 4-3-312(a)(2),
C.R.S.2006.
lost the check. Therefore, the debtor does not need to comply with § 4-3-
312 to benefit from the check.
In light of the immediately foregoing argument, it should be noted that the
check was lost without the bank's having recorded the identity of the
drawee, the endorsees if any, the drawer bank, or the amount. We would
[8] Link to KeyCite Notes The bank argues that the trial court erred as a
matter of law by concluding that the loan was discharged even though
procedural conditions required by the debtor's mortgage agreement were
never met. However, the bank did not make this argument to the trial court,
and so it will not be addressed on appeal. See Estate of Stevenson v.
Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n. 5 (Colo.1992).
The judgment is affirmed.
amount of a payoff-actually probably a little bit more than the full amount of
the payoff.
Judgment was entered in favor of the debtor, and the foreclosure was
terminated.
The bank filed post-trial motions, including a motion for a new trial on the
for the payoff amount. We are not persuaded.
[1] Link to KeyCite Notes[2] Link to KeyCite Notes When sufficiency of the
evidence is challenged on appeal, an appellate court must determine
whether the evidence, viewed as a whole and in the light most favorable to
the prevailing party, is sufficient to support the verdict. Parr v. Triple L & J
bank's assertion that it is entitled to a de novo standard of review.
[3] Link to KeyCite Notes Here, the trial court's conclusion that the check
“was either a cashier's check or certified funds or a certified check” was
supported by the bank representative's testimony that if the bank had
received a personal check instead of certified funds, a notation would have
down to the “payoff department.”
The trial court's conclusion that the check was “for the full amount of a
payoff” also has support in the testimony of the bank representative.
Specifically, she testified that when she received the check, she “assumed
it was a payoff.” While she testified that she had not determined whether
finding that the check “was either a cashier's check or certified funds or a
certified check” and that the check was “for the full amount of a payoff.”
II.
The bank asserts that the trial court erred as a matter of law by ruling that
the promissory note was paid in full because the missing check was not
extent discharge would result if an amount of money equal to the amount
of the instrument were taken in payment of the obligation. Discharge of the
obligation does not affect any liability that the obligor may have as an
endorser of the instrument.
(Emphasis added.)
General Assembly, looking first to the statute's plain language. In re 2000-
2001 Dist. Grand Jury, 97 P.3d 921, 924 (Colo.2004). If a statute is clear
and unambiguous on its face, then we need not look beyond the plain
language and must apply the statute as written. Garhart ex rel. Tinsman v.
Columbia/HealthONE, L.L.C., 95 P.3d 571, 591 (Colo.2004).
payment of an obligation. In that case the obligation is discharged unless
there is an agreement to the contrary.” Section 4-3-310 cmt. 2 (emphasis
added). This comment indicates that the drafters intended that the taking
for an obligation occurs simultaneously with the giving of the payment. This
interpretation corresponds with the plain meaning of the verb “take,” which
the check is paid, certified, or dishonored. The bank's interpretation of
“taken for an obligation” would render subsection (b) meaningless.
Further, case law supports this interpretation. As used in the Uniform
Commercial Code, certified or bank checks are the equivalent of cash in
satisfying the underlying obligation. Section 4-3-310(a); Harrington v.
cashier's check, money order, or currency passes with delivery to the
person who receives it in good faith and for valuable consideration.
Transamerica Ins. Co. v. Long, 318 F.Supp. 156, 160 (W.D.Pa.1970); see
also Chen v. Roosevelt & Main St. Realty Corp., 131 Misc.2d 572, 574,
500 N.Y.S.2d 948, 950 (Sup.Ct.1986) (“Plaintiffs' acceptance ... of the
The bank's reliance on Transamerica Ins. Co. v. Long, supra, 318 F.Supp.
at 160, and Am. Fed. Sav. & Loan Ass'n v. Madison Valley Props. Inc., 288
Mont. 365, 958 P.2d 57, 65-66 (1998), is unavailing. Those cases hold that
in some situations, an instrument purchased with stolen funds can defeat
the holder's title to the proceeds.
requesting payment of the amount of the check.” Section 4-3-312(b),
C.R.S.2006. In this context, “ ‘[c]laimant’ means a person who claims the
right to receive the amount of a cashier's check, teller's check, or certified
check that was lost, destroyed, or stolen.” Section 4-3-312(a)(2),
C.R.S.2006.
lost the check. Therefore, the debtor does not need to comply with § 4-3-
312 to benefit from the check.
In light of the immediately foregoing argument, it should be noted that the
check was lost without the bank's having recorded the identity of the
drawee, the endorsees if any, the drawer bank, or the amount. We would
[8] Link to KeyCite Notes The bank argues that the trial court erred as a
matter of law by concluding that the loan was discharged even though
procedural conditions required by the debtor's mortgage agreement were
never met. However, the bank did not make this argument to the trial court,
and so it will not be addressed on appeal. See Estate of Stevenson v.
Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n. 5 (Colo.1992).
The judgment is affirmed.
