The Uniform Commercial Code (enacted in every state, including Illinois) has a three-year statute of limitations.
This case is a bad check case. The plaintiff sued her former lawyer and a bank when the lawyer allegedly forged her signature on a check and converted her money. The defendant bank argued that the case was filed after the three-year period and thus should be dismissed. The trial court agreed and dismissed the case.
On appeal, Hawkins argued that the claim did not accrue until she discovered it and, therefore, her lawsuit was timely.
First, the legal standard for holding the bank liable for wrongfully cashing a check:
"Section 3-420(a) of the UCC provides in relevant part: "An instrument is *** converted if it is taken by transfer, other than a negotiation, from a person not entitled to enforce the instrument or a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment." 810 ILCS 5/3-420(a) (West 2010). "To establish that a financial institution is liable for conversion under Illinois law, the plaintiff must establish (1) that she owned, held an interest in, or had the right to possess a negotiable instrument; (2) that someone forged or without authority placed the plaintiff's endorsement on the instrument; and (3) that the defendant financial institution negotiated the check without her authorization." Rodrigue v. Olin Employees Credit Union, 406 F.3d 434, 439 (7th Cir. 2005)."
Second, the appellate court concluded that the result, while it was harsh, was in accordance with the majority of jurisdictions that have ruled on this issue. The court explained:
"As noted above, almost every jurisdiction that has addressed this issue has held that the discovery rule does not apply to the UCC's three-year statute of limitations on claims for the conversion of negotiable instruments. See Estate of Hollywood v. First National Bank of Palmerton, 2004 PA Super 321, ¶ 20 (and cases cited therein). Accordingly, we are compelled to adopt the majority view and hold that the discovery rule does not toll the running of the three-year statute of limitations set forth in section 3-118(g) of the UCC.
¶ 26 In the present case, there is no evidence that the plaintiff could have known that Nalick converted her inheritance check from her mother's estate. Unlike the plaintiffs in Haddad's of Illinois and Kidney Cancer Ass'n, there is no indication that the plaintiff in the present case was in the best position to easily and quickly detect the loss and take appropriate action or that she could have detected the conversion sooner with adequate bookkeeping. Nonetheless, we believe that we must apply the three-year statute of limitations on claims for the conversion of negotiable instruments.
¶ 27 "The rationale most often cited in support of the majority perspective is that application of the discovery rule would be inimical to the underlying purposes of the UCC, including the goals of certainty of liability, finality, predictability, uniformity, and efficiency in commercial transactions." Rodrigue, 406 F.3d at 445-46. Application of the discovery rule to a cause of action for the conversion of a negotiable instrument undermines the underlying goals of the UCC. Id. Although the mechanical application of the statute of limitations in the present case leads to a harsh result, courts addressing this issue have noted that greater good is served by the strict application of the limitations period. Menichini v. Grant, 995 F.2d 1224, 1230 (3d Cir. 1993); Husker News Co. v. Mahaska State Bank, 460 N.W.2d 476, 479 (Iowa 1990) ("Strict application of the limitation period, while predictably harsh in some cases, best serves the twin goals of swift resolution of controversies and `certainty of liability' advanced by the U.C.C.")."
The problem with the discovery rule is that the rule leaves the statute of limitations open ended. Plaintiff can sue whenever the conversion is discovered. This is bad for banks and increases transaction costs because the bank may have to evaluate a transaction years after the fact. The other rationale against using the discovery rule is that the plaintiff is usually in the best position to know that there was a conversion. Most people would, in theory, notice that a large check was missing and take some action. Here, the missing check was not discovered because the lawyer lied to the client.
Comment: this is a thoughtful well-researched opinion that lays out both sides of the issue and explains why the court chose the path that it chose. The court checked the law of other jurisdictions and reviewed the policy reasons in favor of a hard and fast three-year statute of limitations.
Edward X. Clinton, Jr.
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