(a) Subject to Subsection (c) and Section 55-3-106(d) NMSA 1978, "holder in due course" means the holder of an instrument if:

(1) the instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and

(2) the holder took the instrument (i) for value, (ii) in good faith, (iii) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series, (iv) without notice that the instrument contains an unauthorized signature or has been altered, (v) without notice of any claim to the instrument described in Section 55-3-306 NMSA 1978, and (vi) without notice that any party has a defense or claim in recoupment described in Section 55-3-305(a) NMSA 1978.

(b) Notice of discharge of a party, other than discharge in an insolvency proceeding, is not notice of a defense under Subsection (a), but discharge is effective against a person who became a holder in due course with notice of the discharge. Public filing or recording of a document does not of itself constitute notice of a defense, claim in recoupment, or claim to the instrument.

(c) Except to the extent a transferor or predecessor in interest has rights as a holder in due course, a person does not acquire rights of a holder in due course of an instrument taken (i) by legal process or by purchase in an execution, bankruptcy, or creditor's sale or similar proceeding, (ii) by purchase as part of a bulk transaction not in ordinary course of business of the transferor, or (iii) as the successor in interest to an estate or other organization.

(d) If, under Section 55-3-303(a)(1) NMSA 1978, the promise of performance that is the consideration for an instrument has been partially performed, the holder may assert rights as a holder in due course of the instrument only to the fraction of the amount payable under the instrument equal to the value of the partial performance divided by the value of the promised performance.

(e) If (i) the person entitled to enforce an instrument has only a security interest in the instrument and (ii) the person obliged to pay the instrument has a defense, claim in recoupment, or claim to the instrument that may be asserted against the person who granted the security interest, the person entitled to enforce the instrument may assert rights as a holder in due course only to an amount payable under the instrument which, at the time of enforcement of the instrument, does not exceed the amount of the unpaid obligation secured.

(f) To be effective, notice must be received at a time and in a manner that gives a reasonable opportunity to act on it.

(g) This section is subject to any law limiting status as a holder in due course in particular classes of transactions.

History: 1978 Comp., § 55-3-302, enacted by Laws 1992, ch. 114, § 115.

OFFICIAL COMMENTS

UCC Official Comments by ALI & the NCCUSL. Reproduced with permission of the PEB for the UCC. All rights reserved.

1. Subsection (a)(1) is a return to the N.I.L. rule that the taker of an irregular or incomplete instrument is not a person the law should protect against defenses of the obligor or claims of prior owners. This reflects a policy choice against extending the holder in due course doctrine to an instrument that is so incomplete or irregular "as to call into question its authenticity." The term "authenticity" is used to make it clear that the irregularity or incompleteness must indicate that the instrument may not be what it purports to be. Persons who purchase or pay such instruments should do so at their own risk. Under Subsection (1) of former Section 3-304, irregularity or incompleteness gave a purchaser notice of a claim or defense. But it was not clear from that provision whether the claim or defense had to be related to the irregularity or incomplete aspect of the instrument. This ambiguity is not present in subsection (a)(1).

2. Subsection (a)(2) restates Subsection (1) of former Section 3-302. Section 3-305(a) [55-3-305 NMSA 1978] makes a distinction between defenses to the obligation to pay an instrument and claims in recoupment by the maker or the drawer that may be asserted to reduce the amount payable on the instrument. Because of this distinction, which was not made in former Article 3, the reference in Subsection (a)(2)(vi) is to both a defense and a claim in recoupment. Notice of forgery or alteration is stated separately because forgery and alteration are not technically defenses under Subsection (a) of Section 3-305 [55-3-305 NMSA 1978].

3. Discharge is also separately treated in the first sentence of Subsection (b). Except for discharge in an insolvency proceeding, which is specifically stated to be a real defense in Section 3-305(a)(1) [55-3-305 NMSA 1978], discharge is not expressed in Article 3 as a defense and is not included in Section 3-305(a)(2) [55-3-305 NMSA 1978]. Discharge is effective against anybody except a person having rights of a holder in due course who took the instrument without notice of the discharge. Notice of discharge does not disqualify a person from becoming a holder in due course. For example, a check certified after it is negotiated by the payee may subsequently be negotiated to a holder. If the holder had notice that the certification occurred after negotiation by the payee, the holder necessarily had notice of the discharge of the payee as indorser. Section 3-415(d) [55-3-415 NMSA 1978]. Notice of that discharge does not prevent the holder from becoming a holder in due course, but the discharge is effective against the holder. Section 3-601(b) [55-3-601 NMSA 1978]. Notice of a defense under Section 3-305(a)(1) [55-3-305 NMSA 1978] of a maker, drawer or acceptor based on a bankruptcy discharge is different. There is no reason to give holder in due course status to a person with notice of that defense. The second sentence of Subsection (b) is from former Section 3-304(5).

4. Professor Britton in his treatise Bills and Notes 309 (1961) stated: "A substantial number of decisions before the [N.I.L.] indicates that at common law there was nothing in the position of payee as such which made it impossible for him to be a holder in due course." The courts were divided, however, about whether the payee of an instrument could be the holder in due course under N.I.L.. Some courts read N.I.L. § 52(4) to mean that a person could be a holder in due course only if the instrument was "negotiated" to that person. N.I.L. § 30 stated that "an instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof." Normally, an instrument is "issued" to the payee; it is not transferred to the payee. N.I.L. § 191 defined "issue" as the "first delivery of the instrument * * * to a person who takes it as a holder." Thus, some courts concluded that the payee never could be a holder in due course. Other courts concluded that there was no evidence that the N.I.L. was intended to change the common law rule that the payee could be a holder in due course. Professor Britton states on p. 318: "The typical situations which raise the [issue] are those where the defense of a maker is interposed because of fraud by a [maker who is] principal debtor * * * against a surety co-maker, or where the defense of fraud by a purchasing remitter is interposed by the drawer of the instrument against the good faith purchasing payee."

Former Section 3-302(2) stated: "A payee may be a holder in due course." This provision was intended to resolve the split of authority under the N.I.L.. It made clear that there was no intent to change the common law rule that allowed a payee to become a holder in due course. See Comment 2 to former Section 3-302. But there was no need to put Subsection (2) in former Section 3-302 because the split in authority under N.I.L. was caused by the particular wording of N.I.L. § 52(4). The troublesome language in that section was not repeated in former Article 3 nor is it repeated in revised Article 3. Former Section 3-302(2) has been omitted in revised Article 3 because it is surplusage and may be misleading. The payee of an instrument can be a holder in due course, but use of the holder-in-due-course doctrine by the payee of an instrument is not the normal situation.

The primary importance of the concept of holder in due course is with respect to assertion of defenses or claims in recoupment (Section 3-305) [55-3-305 NMSA 1978] and of claims to the instrument (Section 3-306) [55-3-306 NMSA 1978]. The holder-in-due-course doctrine assumes the following cases as typical. Obligor issues a note or check to Obligee. Obligor is the maker of the note or drawer of the check. Obligee is the payee. Obligor has some defense to Obligor's obligation to pay the instrument. For example, Obligor issued the instrument for goods that Obligee promised to deliver. Obligee never delivered the goods. The failure of Obligee to deliver the goods is a defense. Section 3-303(b) [55-3-303 NMSA 1978]. Although Obligor has a defense against Obligee, if the instrument is negotiated to Holder and the requirements of subsection (a) are met, Holder may enforce the instrument against Obligor free of the defense. Section 3-305(b) [55-3-305 NMSA 1978]. In the typical case the holder in due course is not the payee of the instrument. Rather, the holder in due in due course is an immediate or remote transferee of the payee. If Obligor in our example is the only obligor on the check or note, the holder-in-due-course doctrine is irrelevant in determining rights between Obligor and Obligee with respect to the instrument.

But in a small percentage of cases it is appropriate to allow the payee of an instrument to assert rights as a holder in due course. The cases are like those referred to in the quotation from Professor Britton referred to above, or other cases in which conduct of some third party is the basis of the defense of the issuer of the instrument. The following are examples:

Case #1. Buyer pays for goods bought from Seller by giving to Seller a cashier's check bought from Bank. Bank has a defense to its obligation to pay the check because Buyer bought the check from Bank with a check known to be drawn on an account with insufficient funds to cover the check. If Bank issued the check to Buyer as payee and Buyer endorsed it over to Seller, it is clear that Seller can be a holder in due course taking free of the defense if Seller had no notice of the defense. Seller is a transferee of the check. There is no good reason why Seller's position should be any different if Bank drew the check to the order of Seller as payee. In that case, when Buyer took delivery of the check from Bank, Buyer became the owner of the check even though Buyer was not the holder. Buyer was a remitter. Section 3-103(a)(11) [55-3-103 NMSA 1978]. At that point nobody was the holder. When Buyer delivered the check to Seller, ownership of the check was transferred to Seller who also became the holder. This is a negotiation. Section 3-201 [55-3-201 NMSA 1978]. The rights of seller should not be affected by the fact that in one case the negotiation to Seller was by a holder and in the other case the negotiation was by a remitter. Moreover, it should be irrelevant whether Bank delivered the check to Buyer and Buyer delivered it to Seller or whether Bank delivered it directly to Seller. In either case Seller can be holder in due course that takes free of Bank's defense.

Case #2. X fraudulently induces Y to join X in a spurious venture to purchase a business. The purchase is to be financed by a bank loan for part of the price. Bank lends money to X and Y by deposit in a joint account of X and Y who sign a note payable to Bank for the amount of the loan. X then withdraws the money from the joint account and absconds. Bank acted in good faith and without notice of the fraud of X against Y. Bank is payee of the note executed by Y, but its right to enforce the note against Y should not be affected by the fact that Y was induced to execute the note by the fraud of X. Bank can be a holder in due course that takes free of the defense of Y. Case #2 is similar to Case #1. In each case the payee of the instrument has given value to the the person committing the fraud in exchange for the obligation of the person against whom the fraud was committed. In each case the payee was not party to the fraud and had no notice of it.

Suppose in Case #2 that the note does not meet the requirements of Section 3-104(a) [55-3-104 NMSA 1978] and thus is not a negotiable instrument covered by Article 3. In that case, Bank cannot be a holder in due course but the result should be the same. Bank's rights are determined by general principles of contract law. Restatement Second, Contracts § 164(2) governs the case. If Y is induced to enter into a contract with Bank by fraudulent misrepresentation by X, the contract is voidable by Y unless Bank "in good faith and without reason to know of the misrepresentation either gives value or relies materially on the transaction." Comment e to § 164(2) states:

"This is the same principle that protects an innocent person who purchases goods or commercial paper in good faith, without notice and for value from one who obtained them from the original owner by misrepresentation. See Uniform Commercial Code § 2-403(1), 3-305 [55-2-403, 55-3-305 NMSA 1978, respectively]. In the cases that fall within [§ 164(2)], however, the innocent person deals directly with the recipient of the misrepresentation, which is made by one not a party to the contract."

The same result follows in Case #2 if Y had been induced to sign the note as an accommodation party (Section 3-419) [55-3-419 NMSA 1978]. If Y signs as co-maker of a note for the benefit of X, Y is a surety with respect of the obligation of X to pay the note but is liable as maker of the note to pay Bank. Section 3-419(b) [55-3-419 NMSA 1978]. If Bank is a holder in due course, the fraud of X cannot be asserted against Bank under Section 3-305(b) [55-3-305 NMSA 1978]. But the result is the same without resort to holder-in-due-course doctrine. If the note is not a negotiable instrument governed by Article 3, general rules of suretyship apply. Restatement, Security § 119 states that the surety (Y) cannot assert a defense against the creditor (Bank) based on the fraud of the principal (X) if the creditor "without knowledge of the fraud * * * extended credit to the principal on the security of the surety's promise * * *." The underlying principle of § 119 is the same as that of § 164(2) of Restatement Second, Contracts.

Case #3. Corporation draws a check payable to Bank. The check is given to an officer of Corporation who is instructed to deliver it to Bank in payment of a debt owed by Corporation to Bank. Instead, the officer, intending to defraud Corporation, delivers the check to Bank in payment of officer's personal debt, or the check is delivered to Bank for deposit to the officer's personal account. If Bank obtains payment of the check, Bank has received funds of Corporation which have been used for the personal benefit of the officer. Corporation in this case will assert a claim to the proceeds of the check against Bank. If Bank was a holder in due course of the check it took the check free of the Corporation's claim. Section 3-306 [55-3-306 NMSA 1978]. The issue in this case is whether Bank had notice of the claim when it took the check. If Bank knew that the officer was a fiduciary with respect to the check, the issue is governed by Section 3-307 [55-3-307 NMSA 1978].

Case #4. Employer, who owed money to X, signed a blank check and delivered it to Secretary with instructions to complete the check by typing in X's name and the amount owed to X. Secretary fraudulently completed the check by typing in the name of Y, a creditor to whom the Secretary owed money. Secretary then delivered the check to Y in payment of Secretary's debt. Y obtained payment of the check. This case is similar to Case #3. Since Secretary was authorized to complete the check, Employer is bound by Secretary's act in making the check payable to Y. The drawee bank properly paid the check. Y received funds of the employer which were used for the personal benefit of Secretary. Employer asserts a claim to these funds against Y. If Y is a holder in due course, Y takes free of the claim. Whether Y is a holder in due course depends upon whether Y had notice of Employer's claim.

5. Subsection (c) is based on former Section 3-302(3). Like former Section 3-302(3), Subsection (c) is intended to state existing case law. It covers a few situations in which the purchaser takes an instrument under unusual circumstances. The purchaser is treated as a successor in interest to the prior holder and can acquire no better rights. But if the prior holder was a holder in due course, the purchaser obtains rights of a holder in due course.

Subsection (c) applies to a purchaser in an execution sale or sale in bankruptcy. It applies equally to an attaching creditor or any other person who acquires the instrument by legal process or to a representative, such as an executor, administrator, receiver, or assignee for the benefit of creditors, who takes the instrument as part of an estate. Subsection (c) applies to bulk purchases lying outside of the ordinary course of business of the seller. For example, it applies to the purchase by one bank of a substantial part of the paper held by another bank which is threatened with insolvency and seeking to liquidate its assets. Subsection (c) would also apply when a new partnership takes over for value all of the assets of an old one after a new member has entered the firm, or to a reorganized or consolidated corporation taking over the assets of a predecessor.

In the absence of controlling state law to the contrary, Subsection (c) applies to a sale by a state bank commissioner of the assets of an insolvent bank. However, subsection (c) may be preempted by federal law if the Federal Deposit Insurance Corporation takes over an insolvent bank. Under the governing federal law, the FDIC and similar financial institution insurers are given holder in due course status and that status is also acquired by their assignees under the shelter doctrine.

6. Subsection (d) and (e) clarify two matters not specifically addressed by former Article 3:

Case #5. Payee negotiates a $1,000 note to Holder who agrees to pay $900 for it. After paying $500, Holder learns that Payee defrauded Maker in the transaction giving rise to the note. Under Subsection (d) Holder may assert rights as a holder in due course to the extent of $555.55 ($500 $900 = .555 x $1,000 = $555.55). This formula rewards holder with a ratable portion of the bargained for profit.

Case #6. Payee negotiates a note of Maker for $1,000 to Holder as security for payment of Payee's debt to Holder of $600. Maker has a defense which is good against Payee but of which Holder has no notice. Subsection (e) applies. Holder may assert rights as a holder in due course only to the extent of $600. Payee does not get the benefit of the holder-in-due-course status of Holder. With respect to $400 of the note, Maker may assert any rights that Maker has against Payee. A different result follows if the payee of a note negotiated it to a person who took it as a holder in due course and that person pledged the note as security for a debt. Because the defense cannot be asserted against the pledgor, the pledgee can assert rights as a holder in due course for the full amount of the note for the benefit of both the pledgor and pledgee.

7. There is a large body of state statutory and case law restricting the use of the holder in due course doctrine in consumer transactions as well as some business transactions that raise similar issues. Subsection (g) subordinates Article 3 to that law and any other similar law that may evolve in the future. Section 3-106(d) [55-3-106 NMSA 1978] also relates to statutory or administrative law intended to restrict use of the holder-in-due-course doctrine. See Comment 3 to Section 3-106 [55-3-106 NMSA 1978].

8. The status of holder in due course resembles the status of protected holder under Article 29 of the Convention on International Bills of Exchange and International Promissory Notes. The requirements for being a protected holder under Article 29 generally track those of Section 3-302 [55-3-302 NMSA 1978].

Repeals. — Laws 1992, ch. 114, § 237 repealed former 55-3-302 NMSA 1978, as enacted by Laws 1961, ch. 96, § 3-302, relating to holder in due course, effective July 1, 1992. Laws 1992, ch. 114, § 115, enacted a new section, effective July 1, 1992. For provisions of former section, see the 1991 NMSA 1978 on NMOneSource.com.

I. GENERAL CONSIDERATION.

Holder's burden when maker shows fraud. — Where the maker shows fraud in the inception of the instrument, the burden on the holder to show that he is a holder in due course may be removed by showing that he acquired title in accordance with this section. Gebby v. Carrillo, 1918-NMSC-135, 25 N.M. 120, 177 P. 894 (decided under former law).

Clear evidence needed for verdict. — To justify directing a verdict in favor of the holder, or in setting aside a verdict against holder, the bona fides of the holder must be established without substantial evidence to impeach it, and by evidence so clear as to leave no room for difference of opinion concerning it among fair-minded men. Gebby v. Carrillo, 1918-NMSC-135, 25 N.M. 120, 177 P. 894 (decided under former law).

Bank issuing cashier's check. — In issuing a cashier's check, a bank acts as both drawer and drawee, since a cashier's check constitutes a draft drawn by the bank upon itself, and upon the subsequent presentment of the check, the bank is not a holder in due course. Casarez v. Garcia, 1983-NMCA-013, 99 N.M. 508, 660 P.2d 598, cert. denied, 99 N.M. 578, 661 P.2d 478.

Bank receiving check. — Where bank, which received check for unlawful sale of debtor's property, had actual notice of senior lienholder's interest in the property, above and beyond the filing required by 55-1-201 NMSA 1978, such notice would defeat holder in due course status under this section. Case Credit Corp. v. Portales Nat'l Bank, 1998-NMSC-035, 126 N.M. 89, 966 P.2d 1172.

II. HOLDER FOR VALUE.

Additional credit deemed sufficient value. — Where credit was requested by appellant on behalf of the corporation, and appellee extended it on the condition that appellant and corporation as accommodation maker and maker, respectively, execute a note in favor of appellee for the entire amount of the open account plus the amount of additional credit requested, appellee was deemed to be a holder for value as the additional credit was extended to the corporation in reliance on appellant's promise to execute the note. Hutchison v. Boney, 1963-NMSC-040, 72 N.M. 194, 382 P.2d 525.

Executory contract. — Where the consideration for a note is an executory contract, knowledge of the transaction by a purchaser of the note, who acquires it by transfer before its maturity, will not prevent recovery thereon upon subsequent failure of consideration, by a breach of the executory contract. Azar v. Slack, 1924-NMSC-025, 29 N.M. 528, 224 P. 398 (decided under former law).

III. HOLDER WITHOUT NOTICE.

Generally. — Where the president of a bank alone discounted notes for it, and as such discounted a note which he had made as treasurer of a corporation, and his authority to make it is denied, the bank was not a holder for value without notice. Oak Grove & Sierra Verde Cattle Co. v. Foster, 1895-NMSC-003, 7 N.M. 650, 41 P. 522 (decided under former law).

Insufficient number of signers. — Where note was in conventional form except that it provided that this note is not binding on any of the signers until signed by not less than 10 men, but was unconditionally delivered to payee when only seven men had signed it, it was invalid and payee was not holder in due course, even though three more men signed it after such delivery. Wood v. Eminger, 1940-NMSC-077, 44 N.M. 636, 107 P.2d 557 (decided under former law).

No evidence of reliance on condition. — The buyer of air conditioner under conditional sales contract was not "estopped" from denying liability for unpaid portion of purchase price evidenced by installment note, and from claiming damages for breach of warranty, because prior to acquisition of the note by a holder in due course who simultaneously acquired rights under the sale contract, the buyer had written in a letter that conditioner was satisfactory, where no evidence was introduced to show that the holder-purchaser relied upon the buyer's letter in making the purchase. State Nat'l Bank v. Cantrell, 1943-NMSC-028, 47 N.M. 389, 143 P.2d 592, 152 A.L.R. 1216 (decided under former law).

Law reviews. — For note, "New Mexico's Uniform Commercial Code: Presentment Warranties and the Myth of the 'Shelter Provision'," see 4 Nat. Resources J. 398 (1964).

For comment, "Assignments - Maker's Defenses Cut Off - Uniform Commercial Code § 9-206," see 5 Nat. Resources J. 408 (1965).

For note, "Self-Help Repossession Under the Uniform Commercial Code: The Constitutionality of Article 9, Section 503," see 4 N.M. L. Rev. 75 (1973).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 11 Am. Jur. 2d Bills and Notes §§ 337, 339, 376, 397, 403, 414, 418, 419, 424, 426, 486, 495, 498; 12 Am. Jur. 2d Bills and Notes § 1326.

Crediting the proceeds of negotiable paper to holder's deposit account as constituting bank a holder in due course, 6 A.L.R. 252, 59 A.L.R.2d 1173.

Effect of fraud in the inception of a bill or note to throw upon a subsequent holder the burden of proving that he is a holder in due course, 18 A.L.R. 18, 34 A.L.R. 300, 57 A.L.R. 1083.

One taking bill or note as a gift or in consideration of love and affection as a holder for value or in due course protected against defenses between prior parties, 48 A.L.R. 237.

Endorsee of bill or note based on executed consideration, who knows of circumstances which might result in rescission as between original parties, as holder in due course, 59 A.L.R. 1026.

Notice which has been forgotten as affecting status as holder in due course, 89 A.L.R.2d 1330.

Payee as holder in due course, 2 A.L.R.3d 1151.

What constitutes taking instrument in good faith, and without notice of infirmities or defenses, to support holder-in-due-course status, under U.C.C. § 3-302, 36 A.L.R.4th 212.

10 C.J.S. Bills and Notes § 169.