Okla. Stat. tit. 12A § 3-309

Current through Laws 2024, c. 9.

Section 3-309 - Enforcement of Lost, Destroyed, or Stolen Instrument

(a) A person not in possession of an instrument is entitled to enforce the instrument if:

(1) the person seeking to enforce the instrument:

(A) was entitled to enforce the instrument when loss of possession occurred; or

(B) 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; and

(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 subsection (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, Section 3-308 of this title 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 may be provided by any reasonable means.

Okla. Stat. tit. 12A, § 3-309

Added by Laws 1991, SB 25, c. 117, § 60, eff. 1/1/1992; Amended by Laws 2008, SB 1708, c. 382, §7, eff. 11/1/2008 (Laws 2008, SB 1708, c. 382 held unconstitutional and void by Weddington v. Henry, 2008 OK 102, 202 P.3d 143, and repealed by Laws 2009, SB 991, c. 208, §22, eff. 11/1/2009); Amended by Laws 2009, SB 991, c. 208, §7, eff. 11/1/2009.

Oklahoma Code Comment

1. Section 3-309 modifies pre-revision Section 3-804 to the extent that rights now are stated in terms of a person entitled to enforce the instrument, as opposed to the rights of an "owner," as set forth in pre-revision Section 3-804. There is no intent however, to change prior law. This Section also encompasses the evidentiary rules included in Fed. R. Evid. 1004 and Section 3004 of the Oklahoma Evidence Code, 12 O.S. § 3004 (1978), pertaining to admissibility of other evidence of the contents of a writing if the original is lost, destroyed, or not available.

2. Subsection (a)(iii) does not apply where the instrument is available through replevin or other process. In such an instance, the payee must obtain possession of the instrument through process, and the suit must be on the instrument. See UCC § 3-310 in the event of forgery. If the instrument cannot be obtained by replevin or other process, then subsection (a)(iii) applies.

3. Under subsection (b), before the court can enter judgment on a lost, stolen or destroyed instrument, the court must find that the maker or drawer is adequately protected. Adequate protection includes indemnity against future demands and damages (Powell v. C.I.T. Corp., 193 Okla. 292,142 P.2d 976 (1943)) and posting bond (Gerald F. Miller, Indemnity Bonds on Lost Cashier's Check: How Long Must Losers Be Weepers? 84 COM. L.J. 219 (1979)).

4. A person who claims a right to receive the amount of a cashier's check, teller's check or certified check which was lost, stolen or destroyed may assert rights under this Section or Section 3-312 pursuant to sub section 3-312(d).