Starting in November 15, 2010, Kenneth Flaka, a former partner to Dawda, Mann, Mulcahy & Sadler, P.L.C., defrauded the law firm by presenting and depositing checks drawn on the law firm’s IOLTA account into Flaska’s personal bank account at Bank of America. Flaska deposited nine checks over the course of three years, totaling $529,676.50. All nine of the checks were drawn from the law firm’s IOLTA account and were payable on their face to “Bank of America.” In order to recoup their losses, the law firm sued Bank of America, alleging that Bank of America did not make an inquiry into the checks before depositing them, therefore breaking the common law “duty of inquiry.” The defendant contended that, since the law firm is not one of its customers, it did not owe the law firm any duty. Bank of America also contended that it held the checks as a holder in due course. The judge rules in favor of the law firm, finding the holderin-due-course defense as inapplicable. Why did the judge decide that the holder-in-due-course defense is inapplicable? Were there any irregularities in the checks which should have alerted Bank of America to possible fraud?

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