(A) A person not in possession of an instrument is entitled to enforce the instrument if all of the following apply:
(1) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred.
(2) The loss of possession was not the result of a transfer by the person or a lawful seizure.
(3) 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 division (A) of this section must prove the terms of the instrument and the person's right to enforce the instrument. If that proof is made, divisions (A) and (B) of section 1303.36 of the Revised Code 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 for the person required to pay the instrument may be provided by any reasonable means.
Notes of Decisions
Cited in 76
cases (10 in the last 5 years), 1984–2026 · leading case: SRMOF 2009-1 Trust v. Lewis, 2014 Ohio 71 (Ohio Ct. App. 2014).
SRMOF 2009-1 Trust v. Lewis, 2014 Ohio 71 (Ohio Ct. App. 2014). · cites it 10דLewis further argues that the Trust may not rely on the Lost Note Affidavit as the basis for an interest in the note at the time the complaint was filed as the Lost Note Affidavit failed to meet the requirements of R.”
SMS Fin. XXVI, L.L.C. v. Waxman Chabad Ctr., 2021 Ohio 4174 (Ohio Ct. App. 2021). · cites it 12דThe Trial Court committed prejudicial error in granting the Defendant Chabad House of Cleveland’s and The Waxman Chabad Center’s Motion for Summary Judgment, and denying Plaintiff’s Motion for Summary Judgment and Motion for Reconsideration, by failing to find that the recent…”
Bank of Am., N.A. v. Pasqualone, 2013 Ohio 5795 (Ohio Ct. App. 2013). · cites it 3ד{¶ 32} With respect to a negotiable instrument, a "holder" means: "The person in possession of a negotiable instrument that is payable either to bearer or to an identified 8 As noted, both a non-holder in possession of an instrument who has the rights of a holder, as well as a…”
Wachovia Bank of Delaware, N.A. v. Jackson, 2011 Ohio 3203 (Ohio Ct. App. 2011). · cites it 2ד31 provides: {¶19} “(A) “Person entitled to enforce” an instrument means any of the following persons: {¶20} “(1) The holder of the instrument; {¶21} “(2) A nonholder in possession of the instrument who has the rights of a holder; {¶22} “(3) A person not in possession of the…”
U.S. Bank, N.A. v. Jones, 2016 Ohio 7168 (Ohio Ct. App. 2016). · cites it 7ד31(A) identifies three persons entitled to enforce an instrument: (1) the holder of the instrument; (2) a nonholder in possession of the instrument who has the rights of a holder; and (3) a person not in possession of the instrument who is entitled to enforce the instrument…”
Bayview Loan Servicing, L.L.C. v. St. Cyr, 2017 Ohio 2758 (Ohio Ct. App. 2017). “201(B)(21)(a) defines a holder of a negotiable instrument as "[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." When an instrument is endorsed in blank, it is payable to the bearer.”
Deut Sche Bank Trust Co. of Ams. v. Jones, 2018 Ohio 587 (Ohio Ct. App. 2018). · cites it 2ד{¶ 24} As explained in Herren , Under Ohio's version of the Uniform Commercial Code ("UCC"), one entitled to enforce an instrument is any of the following: (1) The holder of the instrument; (2) A nonholder in possession of the instrument who has the rights of a holder; (3) A…”
U.S. Home Ownership, L.L.C. v. Collin L. Young, 2018 Ohio 1059 (Ohio Ct. App. 2018). · cites it 2ד{¶ 27} Applying R.C. 1303.38 to the Modification Agreement, we find that USHO has failed to demonstrate the absence of any genuine dispute of fact on the material question of whether USHO was entitled to enforce the agreement at the time possession of the original was lost, or…”
Nationstar Mtge., L.L.C. v. West, 2014 Ohio 735 (Ohio Ct. App. 2014). · cites it 2ד31 (A) provides that a “[p]erson entitled to enforce” an instrument includes: (1) The holder of the instrument; (2) A nonholder in possession of the instrument who has the rights of a holder; (3) A person not in possession of the instrument who is entitled to enforce the…”
U.S. Bank Natl. Assn. v. Franko, 2018 Ohio 687 (Ohio Ct. App. 2018). · cites it 3דBank proceeded to enforce the note under R.C. 1303.38, which provides that a person not in possession of an instrument is entitled to enforce the instrument if (1) that person possessed the instrument at the time the loss of possession occurred, or if ownership of the instrument…”
Bank of New York Mellon Trust Co, N.A. v. Loudermilk, 2013 Ohio 2296 (Ohio Ct. App. 2013). · cites it 2ד31 provides: {¶38} (A) “Person entitled to enforce” an instrument means any of the following persons: (1) The holder of the instrument; (2) A nonholder in possession of the instrument who has the rights of a holder; (3) A person not in possession of the instrument who is…”
Bank of New York Mellon Trust Co. Natl. v. Mihalca, 2012 Ohio 567 (Ohio Ct. App. 2012). · cites it 2ד31(A)(3); R.C. 1303.38(B). However, in accordance with the policy underlying the real- party-in-interest rule, a court may not enter judgment in favor of a person who has lost a note “unless it finds that the person required to pay the instrument is adequately protected against…”
U.S. Home Ownership, L.L.C. v. Collin L. Young, 2018 Ohio 1059 (Ohio Ct. App. 2018). “{¶ 27} Applying R.C. 1303.38 to the Modification Agreement, we find that USHO has failed to demonstrate the absence of any genuine dispute of fact on the material question of whether USHO was entitled to enforce the agreement at the time possession of the original was lost, or…”
U.S. Bank, N.A. v. Jones, 2016 Ohio 7168 (Ohio Ct. App. 2016). “31(A) identifies three persons entitled to enforce an instrument: (1) the holder of the instrument; (2) a nonholder in possession of the instrument who has the rights of a holder; and (3) a person not in possession of the instrument who is entitled to enforce the instrument…”
SRMOF 2009-1 Trust v. Lewis, 2014 Ohio 71 (Ohio Ct. App. 2014). “Lewis further argues that the Trust may not rely on the Lost Note Affidavit as the basis for an interest in the note at the time the complaint was filed as the Lost Note Affidavit failed to meet the requirements of R.”
SMS Fin. XXVI, L.L.C. v. Waxman Chabad Ctr., 2021 Ohio 4174 (Ohio Ct. App. 2021). “The Trial Court committed prejudicial error in granting the Defendant Chabad House of Cleveland’s and The Waxman Chabad Center’s Motion for Summary Judgment, and denying Plaintiff’s Motion for Summary Judgment and Motion for Reconsideration, by failing to find that the recent…”
Bank of New York Mellon Trust Co. Natl. v. Mihalca, 2012 Ohio 567 (Ohio Ct. App. 2012). “31(A)(3); R.C. 1303.38(B). However, in accordance with the policy underlying the real- party-in-interest rule, a court may not enter judgment in favor of a person who has lost a note “unless it finds that the person required to pay the instrument is adequately protected against…”
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