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Fifth Third Bank v. Jones

Colorado Court of Appeals
168 P.3d 1 (2007)


Facts

Monay Jones (defendant) executed a promissory note in favor of a mortgage company. The note was secured by Jones’s home. Fifth Third Bank (Fifth Third) (plaintiff) later became the holder of the note. Jones defaulted on the note. Fifth Third received a check from a third party as payment on Jones’s account. A representative of Fifth Third noted the receipt of the check in the bank’s records as a payoff and sent the check to Fifth Third’s payoff department, but Fifth Third lost the check before it was posted to Jones’s account or submitted for payment. Fifth Third then brought a foreclosure action against Jones. Jones asserted that the note had been paid in full by a cashier’s check. Fifth Third argued that the bank had not taken the check for Jones’s obligation, because internal bank actions had still been pending before the check was posted to Jones’s account. A Fifth Third representative testified that the bank would not have accepted a personal check as a payoff and that, if the check had been a personal check rather than certified funds, a notation would have been made in the bank records. The representative also testified that no such record was made. The trial court found that it was more likely than not that the check had been (1) a cashier’s check, certified funds, or a certified check and (2) for the full amount of the payoff on the promissory note. The trial court entered judgment for Jones. Fifth Third appealed.

Rule of Law

Issue

Holding and Reasoning (Roy, J.)

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