This memorandum is provided for instructional purposes. It is not to be relied on as legal advice.
He signed using the name David Black, which he was using generally as his name at the time he executed the documents. However, his legal name is David Brown, and he has more recently begun using that name instead of David Black.
The law is clear that the security documents will be enforceable by the Bank continue reading against the Debtor. However, there is a significant risk that the security documents, which have been registered under the name David Black in public registries, will not be enforceable against other creditors of the Debtor.
The switch from Black to Brown brings the protection afforded by registration into question. The Bank should take the following steps to protect its security. The entire transaction does not need to be re-executed, because the contracts signed by the Debtor are valid as against the Debtor.
However, the security registration should be updated by a new filing reflecting the different name. One way would be to file notice of a change of name. Given the uncertainty as to when the Debtor goes by Black, and when he goes by Brown, the better route is to file under both names. At common law, a person could adopt any name in the community, provided that this was not done with any intention to defraud others. Although occasionally private Acts were used to formally establish changes of name, the most common pattern was for the name change to be effected by adoption, use and recognition in the community.
Legislation now governs legal name changes. Tong Shun A. At page their Lordships stated:. A person who signs, seals, and delivers a deed of covenant cannot avoid liability under the deed by signing a name which he represents as, but which is not in fact, his own, nor can he saddle such liability on the person whose name he uses, unless he is the duly constituted attorney of such person. In summary, at common law one was entitled to use a name by which one was commonly known in the community.
If How To Write A Legal Memorandum Of Law used a different name to sign a legal document, one would still be bound here that document.
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Applying this rule to our facts, the Debtor is bound to the Bank under the security documents, even though he did not sign them using his legal name. Difficulties with the common law rule have arisen in modern times because of registration regimes that are name-dependent. There are several recent cases debating this issue in the context of PPSA registrations. Most of these cases deal with minor differences between the legal name and the registered name, such as an incorrect or missing middle initial, or a misspelled first name.
I have not dealt with these cases. A small body of cases discusses the problems that arise with a significantly different given name. An even smaller body of cases deals with differences in surnames. However, this is balanced against the problems caused to third parties trying to search the registry under the legal name and finding no security documentation registered under that name. He was not aware that his birth certificate contained a different spelling of his surname.
The bank argued that additions should not be read into the PPSA and its regulations. Furthermore, the bank argued that name changes can occur without registration under the Name Act and under common law, and there is nothing to invalidate these changes. The bank therefore argued that its registration and security interest should be valid as against the trustee.
Master Powers noted that this was a case of first impression in British Columbia. He made the following general comments about name changes at pages and A person may have more than one name, or may be known by more than one name, or may change their name without going through a formal process which results in a record of that change.
A person may use a surname of their spouse, the name they obtained by adoption, or at birth or their surname immediately before marriage, if they are a married person. Link Name Acts 2. The Name Act does not appear to require any formal registration of such an election or use. In addition, there does not appear to be anything which invalidates a change of name by common-law even though that change might be an offence under the Name Act.
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I conclude that the regulations should not be interpreted to deprive the bank of its security in a case of this nature. The name Lazarchuk is the name which he has acquired at common-law. I am not making any determination as to whether or not his name may not also be Lazarczuk as registered by his birth. This may simply be a case where he had, in fact, two names and the regulations of the PPSA do not specify which name article source to be used.
Therefore, I conclude the bank has properly registered its security as required by the PPSA and that its security is valid as against the trustee. This case comes out strongly in favour of the bank and therefore supports the position our client wants to take with respect to the Brown financing.
However, there are several problems with relying on this case. It was decided only at the level of a Master. It is the only British Columbia case on this issue. The two surnames in How To Write A Legal Memorandum Of Law case are completely different, rather than having a slightly different spelling. Furthermore, the Debtor has now started using Brown, his legal name, as his surname. This confuses the issue and would enable a court to distinguish our case from that of Mr. The bankrupt in that case had three given names, but was commonly known and referred to by only the second of the names.
The credit union registered financing statements under the PPSA Alta showing only the second given name. These rulings were overturned on appeal. They merely provide that the debtor is to be identified by his or her last name, followed by his or her first name and middle name, if any.
The Alberta Court of Appeal held that even though registry guidelines published by the Attorney How To Write A Legal Memorandum Of Law directed that the birth certificate name be used in registering securities, those guidelines did not have binding legal effect.
Accordingly, the registration using only the second given name and the surname was held to be in compliance with PPSA requirements.
A different result may arise where the debtor does not consistently use the same name, as in our case. In Re Grisenthwaite43 R. Her maiden name was J.
Find Free Consult Attorneys Near You. Free Search at FindLaw. Create Legal Documents Online "Simple to Use" - PC Magazine. Present Your Case Free & Lawyers Respond Fast. View Ratings & Cost. Drafting a Law Office Memorandum. you would not write "Did an advertising circular describing merchandise constitute an offer when it As a legal writer, it. How to Write a Legal Memo. A legal memorandum is a document written by a lawyer for the benefit of a client. It explains a specific area of law, analyzes a given fact.
After his death and her remarriage to W. The trustee in bankruptcy of the debtor sought directions as to whether this security was valid. Master Browne noted that the Ontario legislation did not define what is the proper surname for use in a PPSA financing statement. He noted that the Change of Name ActR. In particular, he held that at common law the debtor was entitled to use the various names she was using. However, he held that her true name and surname for purposes of compliance How To Write A Legal Memorandum Of Law the regulations under the Personal Property Security ActR.
That A Path Statement For Thesis Worn had the effect of an election. Such an adoption was acknowledged to cause a change of name under the Change of Name Act.
This case implies that the only name that is valid for PPSA registration is the name that is the legal name under the Change of Name Act. In this respect, it is narrower than the later case law summarized above. However, this case was decided several years prior to those cases. The recent Alberta and British Columbia case law takes a more liberal approach. When considered together and analyzed, the combined effect of this case law appears to be as follows.
On the other hand, if the debtor consistently uses the same name and has therefore adopted it at common law, registration in that name will be valid for PPSA purposes. Thus, in this case, if David Black was continuing to use that name, even though his birth certificate name is David Brown, then registration under David Black should be valid because it would be his common law name. However, if he is using both names, or has abandoned Black in favour of Brown, then the documentation should be registered in his legal name.
As a result of this analysis, the Bank should take the following steps to protect its security. The entire transaction does not need to be re-executed, because the contracts signed by the Debtor will be valid as against him. Guidelines for computer research Making Good Choices: The Bank is now How To Write A Legal Memorandum Of Law about whether its security is enforceable. At page their Lordships stated: Registration regimes Difficulties with the common law rule have arisen in modern times because of registration regimes that are name-dependent.
Ontario In Re Grisenthwaite43 R.
Summary When considered together and analyzed, the combined effect of this case law appears to be as follows. Recommendation As a result of this analysis, the Bank should take the following steps to protect its security.