O.C.G.A.
O.C.G.A.

O.C.G.A. § 11-3-309 (2019)

Enforcement of lost, destroyed, or stolen instrument

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) 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.

(b) 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.

History

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

Annotations

JUDICIAL DECISIONS Holder is one who has possession of a check. - Pursuant to O.C.G.A. § 11-3309(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 Ga. App. LEXIS 667 (2012), cert. denied, No. S12C1867, 2012 Ga. LEXIS 882 (Ga. Nov. 5, 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 Ga. App. LEXIS 330 (2018), cert. denied, No. S18C1418, 2019 Ga. LEXIS 88 (Ga. Jan. 22, 2019), cert. denied, No. S18C1423, 2019 Ga. LEXIS 75 (Ga. Jan. 22, 2019). 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. § 113-309(a) in order to exercise the power of sale in the security deed. Morrison v. Bank of Am., N.A., No. 1:13-cv-1052-WSD, 2014 U.S. Dist. LEXIS 104426 (N.D. Ga. July 31, 2014).

RESEARCH REFERENCES U.L.A. Uniform Commercial Code (U.L.A.) § 3309.

Notes of Decisions
Cited in 6 cases (2 in the last 5 years), 2011–2022 · leading case: Hale Haven Props., LLC v. Bank of Am., N.A., 815 S.E.2d 574 (Ga. Ct. App. 2018).
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Hale Haven Props., LLC v. Bank of Am., N.A., 815 S.E.2d 574 (Ga. Ct. App. 2018). · cites it 4× “In addition to its initial breach-of-contract claim against Auto-Owners, Hale Haven requested reformation of the insurance policy, and added claims for enforcement of the check under OCGA § 11-3-309 ; bad faith damages and attorney fees under OCGA § 33-4-6 for a refusal to pay…”
Sun Nurseries, Inc. v. Lake Erma, LLC, 730 S.E.2d 556 (Ga. Ct. App. 2012). · cites it 2× “See generally OCGA § 11-3-309 (a) (iii). Thus, pretermitting whether mailing the First Check constituted a form of delivery, that check was lost in the mail and Sun never received delivery or otherwise had possession of it.”
Jenkins v. Wachovia Bank, Nat'l Ass'n, 711 S.E.2d 80 (Ga. Ct. App. 2011). · cites it 2× “18 Under OCGA § 11-3-301, a “[p]erson entitled to enforce” an instrument means (i) the holder of the instrument; (ii) a nonholder in possession of the instrument who has the rights of a holder; or (iii) a person not in possession of the instrument who is entitled to enforce the…”
Citimortgage, Inc. v. Garcia, 538 P.3d 89 (N.M. Ct. App. 2022). “6, § 3-309 (West 1995); Ga. Code Ann. § 11-3-309 (West 1996); Haw.”
River Forest, Inc. v. Multibank 2009-1 RES-ADC Venture, LLC, 771 S.E.2d 126 (Ga. Ct. App. 2015). · cites it 2× “OCGA § 11-3-301 provides: “Person entitled to enforce” an instrument means (i) the holder of the instrument; (ii) a nonholder in possession of the instrument who has the rights of a holder; or (iii) a person not in possession of the instrument who is entitled to enforce the…”
CitiMortgage, Inc. v. Garcia (N.M. Ct. App. 2022). “6, § 3 - 309 (West 1995); Ga. Code Ann. § 11-3-309 (West 1996); Haw.”
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