Posted: August 25th, 2016

Who should prevail in the litigation?

23.6. Holder in Due Course On December 10, 1987, National Financial Services (National) issued a check to Patrick J. Doherty for $62,812.36. The check was drawn on National’s account at the Bank of New England. The next day, Doherty took the check to his bank, the M & I Marshall & Ilsley Bank (M & I), and properly indorsed it. The bank gave Doherty bank gave Doherty $1,350 in cash and deposited the remainder of the funds into his checking account at the bank. As soon as the check was deposited, M & I froze these funds to help offset a $90,000 overdraft in Doherty’s account. When Doherty learned of this action, he contacted National and asked them to stop payment
on the check. Although National agreed to do so, it refused to issue a new check until the original was returned. In the meantime, M & I forwarded the check for payment to the Bank of New England. The Bank of New England returned the check to M & I, stamped “payment stopped.” When M & I received the dishonored check, it sent it to Doherty, who forwarded it to National. National then issued Doherty a new check. M & I sued National to recover on the first check. M & I claims it was a holder in due course and that National could not stop payment on the check. Who wins?
M & I Marshall & Ilsley Bank v. National Financial Services Corporation, 704 F.Supp. 890, 1989 U.S.Dist. Lexis. 1233 (E.D.Wis.)
Is the Bank a holder in due course? Who should prevail in the litigation?