Printable Format84-3-309. 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) must prove the terms of the instrument and the person's right to enforce the instrument. If that proof is made, K.S.A. 84-3-308, and amendments thereto, 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.
History: L. 1991, ch. 296, § 35; L. 2005, ch. 58, § 3; July 1.
KANSAS COMMENT, 1996
This section is identical to the 1995 Official text except that the small roman numbers have been changed to arabic numbers. It is derived from the former 84-3-804 with modifications. Historical case and statutory references may be obtained from the 1965 or 1983 bound Volume 7 of the Kansas Statutes Annotated.
The owner of, or person entitled to enforce, an instrument which is destroyed, lost or stolen may sue prior parties upon proof of ownership, the terms of the instrument, and why it cannot be produced. The utility of the section is greatly reduced, however, by the need to supply bond or other adequate protection. The major concern is that a later holder in due course may later demand payment at anytime before the expiration of the statute of limitations set out in 84-3-118. A holder in due course holds free of the claims of anyone. 84-3-306. A possible solution may be to sue under this section shortly before the statute of limitations has run if the prior party is unwilling to pay the owner.
If the instrument is a cashier's check, teller's check or certified check, 84-3-312 should also be consulted.
CASE ANNOTATIONS
1. Insurers involved in underwriting losses from lost or stolen checks were not debt collectors under FDCPA (15 U.S.C.A. § 1692 et seq.) Stark v. Hasty, 236 F. Supp. 2d 1214, 1215 (2002).
2. Law firm defending client in insurance loss claims action fell within FDCPA (15 U.S.C.A. § 1692 et seq.) exception to debt collector definition. Kavassay v. Hasty, 236 F. Supp. 2d 1240, 1271 (2002).