Month: January 2017

Sometimes, I use Google for Legal Research

I received an e-mail from a potential client this week that sort of confused me. Frankly, I didn’t know the answer.

The dispute related to a term I hadn’t seen before. The issue involved a check that his bank had returned, unpaid, to the other bank as “Return to Maker.” When I saw that, I went around the other bank lawyers. That’s my real “first step in researching weird legal issues”–asking the older bank lawyers if they’ve ever seen this.

When they either hadn’t (or weren’t at their desks), well, I consulted Google.

And, sure, you’re probably thinking that a lawyer shouldn’t admit to googling legal questions, but you’re wrong. Google is great to get general answers or concepts, before digging down on Westlaw.

In fact, I suspect Google is how the readers of this blog got here. But, Google can’t be entirely trusted, and you have to consider the legitimacy and trust-worthiness of the source when you click on the results.

So, yes, I found out that “return to maker” means, generally, that the payor bank has reason to deny the check due to a suspicion that the negotiable instrument has been forged, modified, or is generally unsure of the legitimacy. That note instructs the drawee bank to revisit the issue with their customer.

With that information (and before I gave out any legal advice), I did that deep dive on Westlaw  to confirm my analysis under Tennessee’s UCC adoption of Article 3.

So, there you have it. If a lawyer denies using Google, don’t believe them.

 

Exceptions to the Automatic Stay Exist to Allow Enforcement of Some Materialmen’s Liens

When a borrower files bankruptcy, a good rule of thumb is that the automatic stay of 11 U.S.C. § 362 applies to stay any and all acts against the borrower or his property related to pre-petition causes of action and debts.

But, 11 U.S.C. § 362(b) provides some exceptions, include the exception found at § 362(b)(3), which provides that the automatic stay does not stay

…any act to perfect, or to maintain or continue the perfection of, an interest in property to the extent that the trustee’s rights and powers are subject to such perfection under section 546(b) of this title or to the extent that such act is accomplished within the period provided under section 547(e)(2)(A) of this title…
This section is most important to creditors who hold some lien interest in the debtor’s property, but the bankruptcy was filed during the time that the creditor was allowed to perfect them (or maintain them).
A Bankruptcy Court  in North Carolina recently issued an opinion that clearly shows how this exception should apply in Branch Banking & Trust Co. v. Construction Supervision Services, Inc. (In re Construction Supervision Services, Inc).
In that case, a subcontractor held valid but unperfected materialman’s lien rights on a property, which remained valid and enforceable, but for the bankruptcy filing. Because of the 362(b)(3) exception (i.e. the rights were valid and timely, except for the fact that a bankruptcy was filed), the contractor was able to assert those rights post-petition.
Again, the general rule is that a bankruptcy operates to stay all activity, but there are exceptions.