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Copyright (c) 2011 West Virginia Law Review
West Virginia Law Review

ARTICLE: TITLE EXAMINATIONS, WHEN IS ACTION ON THE SECURITY INSTRUMENT BARRED

Fall 2011

West Virginia Law Review

114 W. Va. L. Rev. 1

Author

John W. Fisher, II *

Excerpt

I. INTRODUCTION

As lawyers who are involved in real estate transactions know, the typical loan involves two separate legal instruments: the "promissory note" and a security document, typically, a deed of trust in West Virginia. Each of these instruments has its own purpose or function in the transaction as is well illustrated by the recent case Arnold v. Palmer. 1 While the distinction between being personally liable, i.e., responsible for the payment of the promissory note, and having property in which one has an ownership interest serve as surety for a debt obligation is perhaps the most important difference in the purpose of these two documents to the parties to the transaction, the title lawyer also recognizes the problems created by each of these documents having separate statutes of limitations. The goal of this article will be to examine whether the West Virginia Legislature was more successful in addressing this issue in the late 1990s than the efforts of earlier legislatures beginning in the early 1920s.

A good place to begin the discussion is with the definitions of each document provided in the Arnold case:
A promissory note is known as a negotiable instrument, enforcement of which is governed by the Uniform Commercial Code. Such enforcement is illustrated by W.Va. Code 46-3-401 (1993) (Repl. Vol. 2007), which states in relevant part that "(a) A person is not liable on an instrument unless (i) the person signed the instrument or (ii) the person is represented by an agent ...
 
 
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