Tuesday, March 26, 2013

First Hawaiian Bank v. Zukerkorn case brief

First Hawaiian Bank v. Zukerkorn case brief summary

FACTS: Action was instituted by bank to recover balance owing on two notes and on a credit
card account.

ISSUE: Whether the new promise to pay off past debt constituted consideration to re-invoke
old promise top pay off debt.

(1) a question of fact precluding summary judgment was presented on issue
whether a new promise to pay balance owing on notes, collection of which was barred by
applicable six-year statute of limitations, was created by an express promise on part of
debtor to pay balance to bank, by an express acknowledgment, or by part payment, and
(2) even if debtor expressly acknowledged balance owing on note executed in favor of bank,
collection of which was barred by statute of limitations, or made part payment of balance
owing, such action on part of debtor was only prima facie evidence of a new promise which
could be rebutted by other evidence and by circumstances under which it was made.

Restatement 2d § 82 – Promise to pay Indebtedness; Effect on the Statute of
(1) A promise to pay all or part of an antecedent contractual or quasi-contractual
indebtedness owed by the promisor is binding if the indebtedness is still enforceable
or would be except for the effect of a statute of limitations.
(2) The following facts operate as such a promise unless other facts indicate a different
(a) A voluntary acknowledgement to the obligee, admitting the present existence of the
antecedent indebtedness; or
(b) A voluntary transfer of money, a negotiable instrument, or other thing by the
obligor to the obligee, made as interest on or part payment of or collateral security
for the antecedent indebtedness; or
(c) A statement to the obligee that the statute of limitations will nto be pleaded as a

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