Morgan L. Weinstein of Van Ness Law Firm, PLC recently had an article published in the University of New Hampshire Law Review titled The Non-Uniform Commercial Code: The Creeping, Problematic Application of Article 9 to Determine Outcomes in Foreclosure Cases.
In the published piece, Weinstein discusses the idea of negotiability of promissory notes, implications of negotiability on whether a party has standing to enforce a note, and the benefits of Article 3 enforcement over Article 9 enforcement. Recently, states have been divided as to which portion of the Uniform Commercial Code should determine a plaintiff’s standing with respect to a note; the recent trend has been toward enforcement under Article 9 instead of Article 3.
The state of Florida could be a turning point; defense counsel in Florida has argued for enforcement to be determined under Article, 9, and that promissory notes are not negotiable instruments. These arguments have recently gained traction in lower courts, and also, an appellate court in Florida upheld the use of Article 9 enforcement in the case of HSBC Bank USA, N.A. v. Perez, 165 So. 3d 696 (Fla. 4th DCA 2015).