Legal Case Review Essay

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Rivera of 1990. This case involved Rivera, who was a financial advisor and Salvatore Guarino, Rivera's cohort, selling John G. Talcott, Jr. A resident, 93 years of age in Massachusetts a $75,000 investment. Talcott sent a check for $10,000 payable to Guarino for the purpose of travel expenses in acquiring a return on the original investment of $75,000. When Rivera informed Talcott that he only needed $5,700 for traveling expenses, Talcott stopped payment on the check for $10,000. Guarino however cashed the check with a company that charged him five percent for cashing the check and the company deposited the check in the company's bank. A second check was sent by Talcott to Guarino for the amount of $5,700.00 and he took it to the same company and cashed the check. Rivera called Talcott to warn him about Guarino and informed him that he was dishonest at which time Talcott stopped payment on the second check. The company that cashed the check was called by Talcott's daughter and informed that there was a stop payment on the second check in the amount of $5,700.00. The company filed a lawsuit against both Talcott and Guarino stating the claim that it was the holder in due course.

I. Decision of the Trial Court

The decision of the trial court in this case was such that found in favor of Any Kind for only the second check in the amount of $5,700.00 and stated finding that the "circumstances surrounding the cashing of the $10,000.00 check were suspicious" and should have put the company on notice of a problem being present meaning that the company was "not a holder in due course of that check." (Whaley, nd, p. 43) The reason stated by the trail court for this decision was specifically that the "events and circumstances were sufficient" to put the company "on notice of potential defense." (Negotiable Instruments, nd) The trial court held specifically that due to the "circumstances of a person describing himself as a broker, receiving funds in the amount of $10,000.

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00 and negotiating the check for those funds at a $500 discount were sufficient" to put the company on "inquiry notice that some confirmation or explanation should be obtained." (Negotiable Instruments, nd) In essence, the company should have "approached the $10,000.00 with additional caution beyond the FedEx envelope, and should have verified it with the maker if it wanted to preserve its holder-in-due-course status." (Negotiable Instruments, nd) This is reported to have been affirmed in the case [Any Kind Checks Cashed, Inc. v. Talcott, 830 So 2d 160 (Fla App 2002)].

II. Statute Law

It is reported that in order to be a holder in due course "the possessor of the instrument must qualify as a 'holder' meaning that the instrument must be "technically 'negotiable' and must have been technically 'negotiated' into the hands of its current possessor (however, the named payee becomes a holder on issuance of the instrument without the necessity of a negotiation, as does anyone to whom a bearer instrument is issued)." (Whaley, nd, p. 36) In addition the bank on which the check is actually drawn is not qualified as a holder since instrument "must be negotiated to a holder, and the process by which the drawee bank acquires the instrument is not a negotiation, it is a mere surrender for payment (a 'presentment')." (Whaley, nd, p. 36) Whaley (nd) emphasizes the importance of establishing whether or not "someone qualifies as a holder in due course" and that measurement of this is established "at the moment he or she gave value for the instrument" and this is based on the assumption that a valid negotiation has taken place "so as to create holder status." (Whaley, nd, p. 36) Stated by Whaley (nd) is the second consideration of 'value' and specifically emphasized is the important of establishing whether or not "someone qualifies as a holder in due course" through measurement "at the moment he or she gave value for the instruction" and this is based on the assumption that a.....

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