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socrateaser
socrateaser, Attorney
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Under Massachusetts law, regarding a promissory note between

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Under Massachusetts law, regarding a promissory note between a company and a private individual lender, is a true facsimile copy signed by the borrowing company's president valid and enforecable in the absence of the original which seems to be lost. Of note is that the masthead date printing on the facsimile shows it came from that company president's office and is date-stamped coincidental with the promissory note date. Also, the company's books reflect the loan and debt this promissory note speaks to.

Massachusetts subscribes to the common law "best evidence rule."

 

The best evidence rule provides that, where the contents of a document are to be proved, the party must either produce the original or show a sufficient excuse for its nonproduction. See P.J. Liacos, Massachusetts Evidence 746 (7th ed. 1999). See also 2 McCormick, Evidence ? 230 (5th ed. 1999). The rule is a doctrine of evidentiary preference "principally aimed, not at securing a writing at all hazards and in every instance, but at securing the best obtainable evidence of its contents." Id. at ? 237. See Fauci v. Mulready, 337 Mass. 532, 540 (1958), quoting comment on Rule 602 of the ALI Model Code of Evidence ("The 'best evidence' rule, here involved, 'at common law is a preferential, rather than an exclusionary rule'"). Thus, where the original has been lost, destroyed, or otherwise unavailable, its production may be excused and other evidence of its contents will be admissible, provided that certain findings are made.

 

As a threshold matter, the proponent must offer evidence sufficient to warrant a finding that the original once existed. See Fauci v. Mulready, supra at 540-543. If the evidence warrants such a finding, the judge must assume its existence, and then determine if the "original had become unavailable, otherwise than through the serious fault of the proponent . . . and that reasonable search had been made for it." Id. at 540. See Proposed Mass. R. Evid. 1004 ("The original is not required, and other evidence of the contents of a writing . . . is admissible if . . . . All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith"). If the judge makes these findings in favor of the proponent, the judge must allow secondary evidence to establish the contents of the lost writing. Fauci v. Mulready, supra at 542.

 

Under MGL Ch. 106 § 3-308, a negotiable instrument is enforceable if the party seeking enforcement can prove the signature of the party against whom enforcement is sought, and under § 3-309, if the instrument is lost or destroyed then the person seeking enforcement...must prove the terms of the instrument and the person’s right to enforce the instrument, and 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.

 

In short, a copy of a note is enforceable, assuming that it can be proved that the original once existed. Evidence showing payments against the note by the party against whom enforcement is sought would be sufficient to prove that the copy represents a note that once existed in original form.

 

Hope this helps.

 

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Edited by socrateaser on 4/21/2010 at 10:43 PM EST
Customer: replied 6 years ago.

From your summary: In short, a copy of a note is enforceable, assuming that it can be proved that the original once existed. Evidence showing payments against the note by the party against whom enforcement is sought would be sufficient to prove that the copy represents a note that once existed in original form.

 

My follow up questions:

 

1. Would you be of the opinion that the very existence of a facsimile which came from the borrowers fax machine, automatically date-stamped and address-stamped from his machine, satisfies the requirement that an original had to exist to have made the fax copy from in the first place?

 

2. Would you be of the opinion that some minor payments amounting to about 5% of the note balance, as well as the fact the debt is on the company's ledger for several years with entries and dates that coordinate with the amount and dating of the note itself, further satisfies the criteria for enforcement.

 

Thank you, XXXXX XXXXX very much appreciate your reply and am happy to accept your answer and recommend the service further.

 

 

 

 

 

 

1. Would you be of the opinion that the very existence of a facsimile which came from the borrowers fax machine, automatically date-stamped and address-stamped from his machine, satisfies the requirement that an original had to exist to have made the fax copy from in the first place?

A: That's good evidence. This is one of those situations, where the more evidence you pile on, the better your success of proving the note.

2. Would you be of the opinion that some minor payments amounting to about 5% of the note balance, as well as the fact the debt is on the company's ledger for several years with entries and dates that coordinate with the amount and dating of the note itself, further satisfies the criteria for enforcement.

 

A: This would be even better evidence, assuming that the journal entries weren't made by the proponent of the note (i.e., you).

 

I assume that the note wasn't acknowledged by a notary public. Because if it was, then there would be a record in the notary's journal, and that would be the best evidence.

Customer: replied 6 years ago.
The journal entries were made by the company's accountant under the direct supervision of the company president who's siganture is on the fax copy. I had no contact with the process. The 2006 note called for the borrower to have an additional copy notarilzed but he either never did that or it has been done and lost. We were trusting friends then and there is nothing but acrimony now (a common story I'm sad to say). It sounds to me like I have good evidence. I suspect if the borrower now wants to deny that it is his signature and that the fax is of the authentic note, then he might be open to some fraud charge for having duped me into making the loan. What do you think?

If you can get the accountant to admit to the transaction, that would be good. But, I wouldn't bet on that.

 

People don't just give other people large amounts of money. No jury will buy that. There was a loan -- the only question is what are the terms of the loan. The copy of the note helps establish the terms.

 

I don't think you have a very difficult case to prove, unless you have some prior convictions for forgery.

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