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Consumer Banking and Payments Law: Section 3-204. Indorsement.

(a) “Indorsement” means a signature, other than that of a signer as maker, drawer, or acceptor, that alone or accompanied by other words is made on an instrument for the purpose of (i) negotiating the instrument, (ii) restricting payment of the instrument, or (iii) incurring indorser’s liability on the instrument, but regardless of the intent of the signer, a signature and its accompanying words is an indorsement unless the accompanying words, terms of the instrument, place of the signature, or other circumstances unambiguously indicate that the signature was made for

Consumer Banking and Payments Law: Section 3-205. Special Indorsement; Blank Indorsement; Anomalous Indorsement.

(a) If an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a “special indorsement.” When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person. The principles stated in Section 3-110 apply to special indorsements.

Consumer Banking and Payments Law: Section 3-301. Person Entitled to Enforce Instrument.

“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 instrument pursuant to Section 3-309 or 3-418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

Official Comment

Consumer Banking and Payments Law: Section 3-302. Holder in Due Course.

(a) Subject to subsection (c) and Section 3-106(d), “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

Consumer Banking and Payments Law: Section 3-308. Proof of Signatures and Status as Holder in Due Course.

(a) In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings. If the validity of a signature is denied in the pleadings, the burden of establishing validity is on the person claiming validity, but the signature is presumed to be authentic and authorized unless the action is to enforce the liability of the purported signer and the signer is dead or incompetent at the time of trial of the issue of validity of the signature.

Consumer Banking and Payments Law: Section 3-310. Effect of Instrument on Obligation for Which Taken.

(a) Unless otherwise agreed, if a certified check, cashier’s check, or teller’s check is taken for an obligation, the obligation is discharged to the same extent discharge would result if an amount of money equal to the amount of the instrument were taken in payment of the obligation. Discharge of the obligation does not affect any liability that the obligor may have as an indorser of the instrument.

Consumer Banking and Payments Law: Section 3-312. Lost, Destroyed, or Stolen Cashier’s Check, Teller’s Check, or Certified Check.*

(a) In this section:

(1) “Check” means a cashier’s check, teller’s check, or certified check.

(2) “Claimant” means a person who claims the right to receive the amount of a cashier’s check, teller’s check, or certified check that was lost, destroyed, or stolen.

2002 amendments (not widely adopted, see Appx. A, Introduction) replaced “written statement made,” as set out in the footnote below.

Consumer Banking and Payments Law: Section 3-401. Signature.

(a) A person is not liable on an instrument unless (i) the person signed the instrument, or (ii) the person is represented by an agent or representative who signed the instrument and the signature is binding on the represented person under Section 3-402.

(b) A signature may be made (i) manually or by means of a device or machine, and (ii) by the use of any name, including a trade or assumed name, or by a word, mark, or symbol executed or adopted by a person with present intention to authenticate a writing.

Consumer Banking and Payments Law: Section 3-403. Unauthorized Signature.

(a) Unless otherwise provided in this Article or Article 4, an unauthorized signature is ineffective except as the signature of the unauthorized signer in favor of a person who in good faith pays the instrument or takes it for value. An unauthorized signature may be ratified for all purposes of this Article.

(b) If the signature of more than one person is required to constitute the authorized signature of an organization, the signature of the organization is unauthorized if one of the required signatures is lacking.

Consumer Banking and Payments Law: Section 3-404. Impostors; Fictitious Payees.

(a) If an impostor, by use of the mails or otherwise, induces the issuer of an instrument to issue the instrument to the impostor, or to a person acting in concert with the impostor, by impersonating the payee of the instrument or a person authorized to act for the payee, an indorsement of the instrument by any person in the name of the payee is effective as the indorsement of the payee in favor of a person who, in good faith, pays the instrument or takes it for value or for collection.

Consumer Banking and Payments Law: Section 3-407. Alteration.

(a) “Alteration” means (i) an unauthorized change in an instrument that purports to modify in any respect the obligation of a party, or (ii) an unauthorized addition of words or numbers or other change to an incomplete instrument relating to the obligation of a party.

Consumer Arbitration Agreements: 4.4.1 Overview

Other than express assent, a party’s assent to a contract may be implied, as manifested through conduct that is consistent with an agreement to be bound by contractual terms. Before finding implied assent, two conditions must be satisfied. First, there must be sufficient evidence that the offer was communicated; that the party was adequately notified of the terms of the agreement. Second, the party must have taken action that is sufficient to indicate assent. The burden is on the party seeking to enforce arbitration to show that the term was communicated and accepted.

Consumer Arbitration Agreements: 4.4.2.1 General

Implied assent does not apply unless the party attempting to enforce the arbitration clause demonstrates that the other party received actual or constructive notice of the arbitration clause.128 Courts look at two factors when determining whether notice was sufficient: whether notice of the arbitration clause was delivered to the consumer or worker, and whether the nature of the notice was sufficient to make an average person aware that they would become bound by the clause through the conduct alleged to constitute assent.

Consumer Arbitration Agreements: 4.4.2.3 Proof of Notice’s Delivery

When the consumer or worker resisting arbitration alleges never having received notice of an arbitration requirement, the party seeking to enforce the arbitration agreement based on implied assent bears the burden of proving sufficient delivery of notice of the arbitration terms.141 When the facts are in dispute, the worker or consumer may be entitled to a jury trial.142

Consumer Arbitration Agreements: 4.4.2.4 Notice Must Be Conspicuous

The party seeking to enforce an arbitration clause must demonstrate not only that the notice was received, but that the form of the notice was sufficient to make an average person aware that they would become bound by the clause.158 While notice sent via email is not necessarily ineffective, courts have refused to enforce arbitration agreements imposed via email when the arbitration clause was downplayed or easy to miss.159