Skip to main content

Search

Consumer Bankruptcy Law and Practice: 15.4.3.8.2.1 Loans related to government units and nonprofit institutions: § 523(a)(8)(A)(i)

The exception has had several different wordings and, as amended in 1990,528 covers an “educational benefit, overpayment or loan”529 that is “made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or a nonprofit institution.”530 This language covers most, if not all, student loans made or insured by nonprofit institutions or governmental units.

Consumer Bankruptcy Law and Practice: 15.4.3.8.2.2 Funds received as educational benefits, scholarships, or stipends; § 523(a)(8)(A)(ii)

The exception also applies to “an obligation to repay funds received as an educational benefit, scholarship, or stipend.”535 This language in subpart (A)(ii) is applicable to certain educational benefit grants involving funds received by the debtor or advanced on the debtor’s behalf.536 However, subpart (A)(ii) is not a “catch-all” provision designed to include every type of transaction that creates an educational benefit for a debtor.537 Important

Consumer Bankruptcy Law and Practice: 15.4.3.8.2.3 Private student loans; § 523(a)(8)(B)

The exception was broadened in 2005 to also include, in subpart (B), any other education loans from for-profit lenders if they are qualified education loans as defined in section 221(d)(1) of the Internal Revenue Code.541 The term “qualified education loan” is defined in section 221(d)(1) of the Internal Revenue Code to mean any indebtedness incurred by the taxpayer solely to pay qualified higher education expenses.542 Debtors who have incurred debt for education and other purposes may

Consumer Banking and Payments Law: Introduction and Listing of Provisions

This appendix reprints those selected provisions of the Uniform Commercial Code (UCC) Articles 1, 3, 4, and 4A and their official comments that are most often consulted in consumer cases involving checks and wires. Every state has adopted these four UCC Articles, but not every state has adopted the same version.

Article 1 was revised in 2001 and every state has adopted those amendments.

Consumer Banking and Payments Law: Section 1-103. Construction of [Uniform Commercial Code] to Promote Its Purposes and Policies; Applicability of Supplemental Principles of Law.

(a) [The Uniform Commercial Code] must be liberally construed and applied to promote its underlying purposes and policies, which are:

(1) to simplify, clarify, and modernize the law governing commercial transactions;

(2) to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; and

(3) to make uniform the law among the various jurisdictions.

Consumer Banking and Payments Law: Section 1-104. Construction Against Implied Repeal.

[The Uniform Commercial Code] being a general act intended as a unified coverage of its subject matter, no part of it shall be deemed to be impliedly repealed by subsequent legislation if such construction can reasonably be avoided.

Official Comments

Source: Former Section 1-104.

Changes from former law: Except for changing the form of reference to the Uniform Commercial Code, this section is identical to former Section 1-104.

Consumer Banking and Payments Law: Section 1-201. General Definitions.

(a) Unless the context otherwise requires, words or phrases defined in this section, or in the additional definitions contained in other articles of [the Uniform Commercial Code] that apply to particular articles or parts thereof, have the meanings stated.

(b) Subject to definitions contained in other articles of [the Uniform Commercial Code] that apply to particular articles or parts thereof:

* * *

(2) “Aggrieved party” means a party entitled to pursue a remedy.

Consumer Banking and Payments Law: Section 1-202. Notice; Knowledge.

(a) Subject to subsection (f), a person has “notice” of a fact if the person:

(1) has actual knowledge of it;

(2) has received a notice or notification of it; or

(3) from all the facts and circumstances known to the person at the time in question, has reason to know that it exists.

(b) “Knowledge” means actual knowledge. “Knows” has a corresponding meaning.

Consumer Banking and Payments Law: Section 1-205. Reasonable Time; Seasonableness.

(a) Whether a time for taking an action required by [the Uniform Commercial Code] is reasonable depends on the nature, purpose, and circumstances of the action.

(b) An action is taken seasonably if it is taken at or within the time agreed or, if no time is agreed, at or within a reasonable time.

Official Comments

Source: Former Section 1-204(2)-(3).

Consumer Banking and Payments Law: Section 1-304. Obligation of Good Faith.

Every contract or duty within [the Uniform Commercial Code] imposes an obligation of good faith in its performance and enforcement.

Official Comments

Source: Former Section 1-203.

Changes from former law: Except for changing the form of reference to the Uniform Commercial Code, this section is identical to former Section 1-203.

Consumer Banking and Payments Law: Section 3-103. Definitions.

(a) In this Article:

(1) “Acceptor” means a drawee who has accepted a draft.

2002 amendments (not widely adopted, see Appx. A, Introduction) added new paragraphs 2 and 3, as set out in this footnote.4

(2) “Drawee” means a person ordered in a draft to make payment.

(3) “Drawer” means a person who signs or is identified in a draft as a person ordering payment.

Consumer Banking and Payments Law: Section 3-104. Negotiable Instrument.

(a) Except as provided in subsections (c) and (d), “negotiable instrument” means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it:

(1) is payable to bearer or to order at the time it is issued or first comes into possession of a holder;

(2) is payable on demand or at a definite time; and

Consumer Banking and Payments Law: Section 3-109. Payable to Bearer or to Order.

(a) A promise or order is payable to bearer if it:

(1) states that it is payable to bearer or to the order of bearer or otherwise indicates that the person in possession of the promise or order is entitled to payment;

(2) does not state a payee; or

(3) states that it is payable to or to the order of cash or otherwise indicates that it is not payable to an identified person.

Consumer Banking and Payments Law: Section 3-113. Date of Instrument.

(a) An instrument may be antedated or postdated. The date stated determines the time of payment if the instrument is payable at a fixed period after date. Except as provided in Section 4-401(c), an instrument payable on demand is not payable before the date of the instrument.

(b) If an instrument is undated, its date is the date of its issue or, in the case of an unissued instrument, the date it first comes into possession of a holder.

Official Comment

Consumer Banking and Payments Law: Section 3-114. Contradictory Terms of Instrument.

If an instrument contains contradictory terms, typewritten terms prevail over printed terms, handwritten terms prevail over both, and words prevail over numbers.

Official Comment

Section 3-114 replaces subsections (b) and (c) of former Section 3-118.

* * *

UCC © by ALI and NCCUSL. Reproduced with the permission of the PEB for the UCC. All rights reserved.

Consumer Banking and Payments Law: Section 3-118. Statute of Limitations.

(a) Except as provided in subsection (e), an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date.

Consumer Banking and Payments Law: Section 3-201. Negotiation.

(a) “Negotiation” means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder.

(b) Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder. If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.

Official Comment