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2018 Georgia Code 11-3-309 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 11-3-309 Case Law from Google Scholar Amendments to OCGA 11-3-309

TITLE 11 COMMERCIAL CODE

Section 3. Negotiable Instruments, 11-3-101 through 11-3-605.

ARTICLE 3 NEGOTIABLE INSTRUMENTS

11-3-309. Enforcement of lost, destroyed, or stolen instrument.

  1. A person not in possession of an instrument is entitled to enforce the instrument if (i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred; (ii) the loss of possession was not the result of a transfer by the person or a lawful seizure; and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
  2. A person seeking enforcement of an instrument under subsection (a) of this Code section must prove the terms of the instrument and the person's right to enforce the instrument. If that proof is made, Code Section 11-3-308 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

(Code 1981, §11-3-309, enacted by Ga. L. 1996, p. 1306, § 3.)

JUDICIAL DECISIONS

Holder is one who has possession of a check.

- Pursuant to O.C.G.A. § 11-3-309(a)(iii), a person cannot reasonably obtain possession of a check when the check's whereabouts cannot be determined. Sun Nurseries, Inc. v. Lake Erma, LLC, 316 Ga. App. 832, 730 S.E.2d 556 (2012).

Action against insurer barred by limitations period in insurance policy.

- Mortgagee's claim against an insurance company for enforcement of a lost or stolen instrument under O.C.G.A. § 11-3-309(a) evolved from the insurance policy and, therefore, was barred by the two-year limitation period in the policy. Auto-Owners Ins. Co. v. Hale Haven Props., 346 Ga. App. 39, 815 S.E.2d 574 (2018).

Burden of proof.

- Since a bank was not trying to enforce a note, but rather was seeking to foreclose on the property which secured a pro se borrower's loan, the bank was not, as the borrower contended, required to prove the bank's right to enforce the note under O.C.G.A. § 11-3-309(a) in order to exercise the power of sale in the security deed. Morrison v. Bank of Am., N.A., F. Supp. 2d (N.D. Ga. July 31, 2014).

RESEARCH REFERENCES

U.L.A.

- Uniform Commercial Code (U.L.A.) § 3-309.

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