Since deciding La Junta State Bank, the Colorado Supreme Court has recognized that constructive possession applies in the negotiable-instruments context. See Georg v. Metro Fixtures Contractors, Inc., 178 P.3d 1209, 1214 (Colo. 2008) ("[T]here are circumstances wherein requiring actual physical possession of the instrument would be problematic and constructive possession applies." (citing 6 William D. Hawkland & Lary Lawrence, Uniform Commercial Code Series, ยง 3-301:3 (1999))). And though a blank-indorsed instrument was not at issue in Georg, the court there provided a rule for analyzing whether a party maintained possession of an instrument through constructive possession: "a determination of constructive possession should occur only when delivery is clearly for an identifiable person under circumstances excluding any other party as a holder in due course."
โPossession is an element designed to prevent two or more claimants from qualifying as holders who could take free of the other party's claim of ownership.โ Georg v. Metro Fixtures Contractors, Inc., 178 P.3d 1209, 1213 (Colo.2008) (citation omitted). โWith rare exceptions, those claiming to be holders have physical ownership of the instrument in question.โ
The requirement of possession prevents multiple โclaimants from qualifying as holders who could take free of the other party's claim of ownership.โ Georg v. Metro Fixtures Contractors, Inc., 178 P.3d 1209, 1213 (Colo.2008). A negotiation occurs when the instrument is transferred โto a person who thereby becomes its holder.โ
The underlying basis for the holder in due course doctrine is succinctly stated in a case from another jurisdiction involving checks. In Georg v. Metro Fixtures Contractors, Inc., 178 P.3d 1209 (Colo. 2008), the Supreme Court of Colorado sitting En Banc, stated: "The holder in due course doctrine is designed to encourage the transfer and usage of checks and facilitate the flow of capital.
ยถ 14 We review de novo a grant of summary judgment. Georg v. Metro Fixtures Contractors, Inc. , 178 P.3d 1209, 1212 (Colo. 2008). Summary judgment is appropriate only if the pleadings and supporting documentation demonstrate that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c) ; W. Elk Ranch, L.L.C. v. United States , 65 P.3d 479, 481 (Colo. 2002).
ยถ 44 The banks contend the trial court erred when it concluded that Branch Banking and Trust was not a holder in due course pursuant to section 4โ3โ302, C.R.S.2013, who took the deed of trust free from any defense of forgery under section 4โ3โ305, C.R.S.2013. Once again, we perceive no error. ยถ 45 The question whether a party is a holder in due course under undisputed facts is a question of law that we review de novo. Georg v. Metro Fixtures Contractors, Inc., 178 P.3d 1209, 1212 (Colo.2008). ยถ 46 โA holder in due course must meet five conditions: (1) be a holder; (2) of a negotiable instrument who took it; (3) for value; (4) in good faith; (5) without notice of certain problems with the instrument.โ
We disagree.An appellate court reviews the trial court's order granting summary judgment de novo. Georg v. Metro Fixtures Contractors, Inc., 178 P.3d 1209, 1212 (Colo.2008). Summary judgment is appropriate when there are no genuine material factual issues and the moving party is legally entitled to judgment.
Constructive possession of an instrument has been recognized in cases involving the UCC's related "holder in due course" principle. See Georg v. Metro Fixtures Contractors, Inc., 178 P.3d 1209, 1214 (Colo. 2008) (collecting cases). For similar reasons, Metro could constructively possess the WMLD on behalf of State Capital, thus fulfilling the possession requirement of ยง 330(4).
"A check is a negotiable instrument." Georg v. Metro Fixtures Contractors, Inc. , 178 P.3d 1209, 1212 (Colo. 2008). It is not clear whether, in analyzing the question of accord and satisfaction, the court should look to state law or federal common law, and the parties do not address the issue directly.
Finally, "an important policy objective of the [Uniform Commercial Code] is to protect the party least able to protect himself or herself. Where one of two innocent parties must suffer because of the wrongdoing of a third person, the loss must fall on the party who has by his conduct created the circumstances which enabled the third party to perpetuate the wrong." Georg v. Metro Fixtures Contractors, Inc., 178 P.3d 1209, 1216 (Colo. 2008) (internal quotations and citations omitted) (finding that the defrauded plaintiff's recourse was not against the good faith recipient of a cashier's check but against the plaintiff's own employee who defrauded it). In the instant case, the undisputed facts reveal that Berwick created the circumstances which enabled Bryant to misappropriate Berwick's funds; Berwick gave Bryant a check in the amount of $250,000 solely on Bryant's promise the funds would not be spent.