HomeMy WebLinkAbout2080 t
for antecedent claim. That is, Plaintiff is claiming that by
the deposit of 4he $233,068 check, it acquired a security interest
in this check, or that the check was taken for payment of the
$150,000 debt which Ologistics owed to Plaintiff. In accepting
this check, Plaintiff merely deposited the check and then payment
was stopped, and on the same date, the check was debited to
Ologistics. The antecedent debt from Ologistics to the bank was
evidenced by two promissory notes which are the subject of this
suit. The Plaintiff never cancelled this debt by issuing a debit
memo or cancelling the notes themselves. Plaintiff never changed
its position as a result of depositing this check. The depositing
of the check by Plaintiff was merely a bookkeeping entry and gave
a provisional credit only, which is not itself a parting for
value under the Uniform Commercial Code. To take value, the
holder must have changed its position. Marine Midland Bank-New
York v. Graybar Electric Co., Inc. v Dynamics Carp. of America,
21 UCC (N.Y. Court of Appeal, 1977).. Plaintiff is relying on-the
case of Exchange Nat. Bank of Winter Haven v. Beshara, 236 So.2d
198 (2 DCA 1970). However, in that case, the bank credited the
full amount of the check and honored checks drawn by the de-
i
positor which equaled or exceeded the amount of the check. The
bank actually lost money because it honored the deposited check,
~ allowing other checks to b~e written against it, which~is not
the case here. In this case, Plaintiff did not take this check
€ for value and is therefore not a holder in due course. Plaintiff
has failed to meet the burden of proof that it is a holder in due
course as required by Florida Statute 673.307(3).
Since Plaintiff is not a holder in due course of the
$233,068 check, Plaintiff then is subject to all defenses that
HILP has to this check. This in turn depends on whether HILP
had the right to cancel the check, which in turn depends on
interpretation of the "tri-party agreement" between the parties
and the AIA contract between HILP and.Ologistics.
Plaintiff contends that the $233,068~could only be
cancelled on ten days notice, since the "tri-party agreement"
provides this agreement can only be voided upon ten days notice
-4-
^~!!R`_2`~1~ o~cFl_117~