In bankruptcy dispute over interests in property, the promissory note held by a bank as creditor was self-authenticated as commercial paper under FRE 902(9), in In re Cook, 457 F.3d 561 (6th Cir. Aug. 9, 2006) (No. 05-6613)
FRE 902 provides for the self-authentication of commercial paper and related documents: “Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.” There are few cases applying this rule. One example comes from the Sixth Circuit.
In the case, a dispute arose over the bankruptcy estate of the Cooks. The trustee sought a declaration that its interests were superior to all other creditors, including a bank which claimed to possess a mortgage. The trustee argued that the bank did not have a perfected security interest in the property and the trustee had a superior interest as a judicial lien creditor. The bank filed an affidavit with the bankruptcy court submitting a copy of the original adjustable rate note executed by the bankruptcy debtors. The bankruptcy court concluded that the bank’s possession of “the original note” constituted “prima facie entitled to enforce the note.” Cook, 457 F.3d at 565. The district court affirmed the bankruptcy court’s finding that the bank had physical possession of the promissory note and that this possession amounted to a perfected interest in the Cooks’ property, with priority over the claims of the bankruptcy trustee. The trustee appealed, contending in part that there were material facts in dispute as to whether the bank actually possessed the promissory note.
The Sixth Circuit affirmed the lower court’s ruling that the bank had a priority in its claim over the trustee. The circuit noted, in part, that the promissory note, which was attached to the affidavit, was “self-authenticating evidence pursuant to Rule 902 of the Federal Rules of Evidence. See Fed. R. Evid. 902(9) (stating that extrinsic evidence is not required to demonstrate the authenticity of ‘[c]ommercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law’).” Cook, 457 F.3d at 566. Consequently, the bank had established its interest in the promissory note.
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