Real or universal defenses are valid against all holders, including HDCs. Universal defenses include the following: (1) Forgery, (2) Fraud in the execution, (3) Material alteration (complete defense against a holder, partial defense against an HDC),
Full Answer
Real defenses consist of infancy, acts that would make a contract void (such as duress), fraud in the execution, forgery, and discharge in bankruptcy. A 1976 trade regulation rule of the Federal Trade Commission abolishes the holder-in-due-course rule for consumer transactions.
Thus, a holder may be accorded holder in due course 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]
In negotiable-instrument law, defenses that are good against a holder in due course. (or “universal defenses”)—they are good against an HDC. The real defenses good against any holder, including HDCs, are as follows (see Figure 24.2 "Real Defenses" ):
A defense is a reason why the would-be obligor will not pay; a claim is an assertion of ownership in the instrument. If a person is fraudulently induced to issue or make an instrument, he has a claim to its ownership and a defense against paying.
Does bankruptcy dismiss you from your debt? Personal defenses are defenses that can be used against a holder but no a holder in due course of a negotiable instrument. The most common personal defenses are breach of contract, failure or lack of consideration, fraud in the inducement, lack of delivery, and payment.
A holder in due course takes a negotiable instrument free of all defenses that could be asserted by any party to the instrument. As a general rule, a holder in due course takes a negotiable instrument subject to any claims that could be asserted to the instrument by any person.
Real defenses are good against any holder, including an HDC. These are infancy, void obligations, fraud in the execution, bankruptcy, discharge of which holder has notice, unauthorized signatures, and fraudulent alterations.
Constructive notice through public filing or recording is sufficient notice to prevent a person from being a holder in due course. Bill issues a negotiable promissory note to Paula, who indorses it in blank and delivers it to Allen.
In commercial law, a holder in due course is someone who takes a negotiable instrument in a value-for-value exchange without reason to doubt its legitimacy.
The UCC provides that to be an HDC, a person must be a holder of paper that is not suspiciously irregular, and she must take it in good faith, for value, and without notice of anything that a reasonable person would recognize as tainting the instrument.
Which of the following is true of using the defense of failure of consideration by a maker or drawer of an instrument? It can be used when the instrument is negotiated to a holder in due course.
Requirements for Being a Holder in Due CourseBe a holder of a negotiable instrument;Have taken it: a) for value, b) in good faith, c) without notice. (1) that it is overdue or. ... Have no reason to question its authenticity on account of apparent evidence of forgery, alteration, irregularity or incompleteness.
(1) A holder in due course is a holder who takes the instrument (a) for value; and (b) in good faith; and (c) without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person. (2) A payee may be a holder in due course.
Universal (real) Defenses: Absolute defenses to liability on a negotiable instrument that are valid against all holders, including HDCs and other holders with the rights of HDCs.
Holder in Due Course (HDC) A holder who acquires a negotiable instrument for value, in good faith, and without notice that the instrument is overdue, that it has been dishonored, that any person has a defense or claim against it, or in any way question its authenticity. Indorsee.
43:- A Holder in due course is a person who becomes the possessor of the instrument.
The holder-in-due-course doctrine is important because it allows the holder of a negotiable instrument to take the paper free from most claims and defenses against it. Without the doctrine, such a holder would be a mere transferee.
The shelter rule#N#Under Article 3 of the Uniform Commercial Code, the transferee of an instrument acquires the same rights his or her transferor had.#N#provides that the transferee of an instrument acquires the same rights that the transferor had. Thus a person who does not himself qualify as an HDC can still acquire that status if some previous holder (someone “upstream”) was an HDC.
If under the state law the effect is to render the obligation of the instrument entirely null and void, the defense may be asserted against a holder in due course. If the effect is merely to render the obligation voidable at the election of the obligor, the defense is cut off.”.
3. Antecedent debt. Likewise, taking an instrument in payment of, or as security for, a prior claim, whether or not the claim is due, is a taking for value.
Carter argues that its motion for summary judgment should have been granted because, as a holder in due course, it has the right to recover on the checks from the drawer, Omni.
The UCC provides generally that a person who has notice that an instrument is overdue cannot be an HDC. What constitutes notice? When an inspection of the instrument itself would show that it was due before the purchaser acquired it, notice is presumed. A transferee to whom a promissory note due April 23 is negotiated on April 24 has notice that it was overdue and consequently is not an HDC. Not all paper contains a due date for the entire amount, and demand paper has no due date at all. In Sections 3-302 (a) (2) and 3-304, the UCC sets out specific rules dictating what is overdue paper.
An HDC in a nonconsumer transaction is not subject to personal defenses, but he is subject to the so-called real defense s. In negotiable-instrument law, defenses that are good against a holder in due course. (or “universal defenses”)—they are good against an HDC.