Schering-Plough Healthcare Products, Inc. v. Nbd Bank, N.A., N/k/a Nbd Bank, and Nbd Bank Dearborn, N.A.

98 F.3d 904, 30 U.C.C. Rep. Serv. 2d (West) 1009, 1996 U.S. App. LEXIS 27623, 1996 WL 613143

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 25, 1996
• Docket: 95-1781
• Status: Published

Opinions

KENNEDY, J., delivered the opinion of the court, in which NORRIS, J., joined. MATIA, J. (pp. 913-19), delivered a separate dissenting opinion.

KENNEDY, Circuit Judge.

Plaintiff Schering-Plough Healthcare Products, Inc., (“Schering-Plough”) appeals from an order of summary judgment for defendants, NBD Bank (“NBD”) and NBD Bank Dearborn (“NBD-Dearborn”), in this breach of contract action. Plaintiff argues that the District Court erred when it: (1) interpreted Michigan’s Statute of Frauds to bar its enforcement of defendants’ alleged promises to certify certain checks, issue cashier’s checks, and deposit certain funds into its account; (2) found that defendants did not accept certain checks for payment; (3) concluded that defendants had not contracted to certify certain checks, issue cashier’s checks, and make certain funds available; and, (4) determined that defendants had not breached their duties of good faith performance and fair dealing. For the following reasons, we AFFIRM.

I. Facts

On December 1, 1994, Schering-Plough, a supplier of healthcare products, received two checks from F & M Distributors, Inc. (“F & M”). The first check, which was payable to Schering-Plough, was in the amount of $111,-903.20. The second check was in the amount of $335,734.33 and was payable to an affiliate of Schering-Plough. Both checks were drawn on F & M’s controlled disbursement account at NBD-Dearborn, an affiliate of NBD that handles only these types of accounts. This account was a “zero balance” arrangement under which NBD-Dearborn notified F & M, through a computer system report, of the checks presented for payment. Each day the account would begin with a zero balance and, upon F & M’s direction, would be funded by a funding account, which in turn was funded by deposits by F & M and borrowings from F & M’s credit facilities, to pay those checks presented for payment. Because F & M had the discretion to fund the account to pay checks after they were presented for payment, NBD-Dearborn would not know if there were adequate funds in F & M’s account until the end of the day on which the checks were posted on the computer system report.

On Thursday, December 1, 1994, Robert Hannon, an employee of Schering-Plough, took the F & M cheeks to the Warren, Michigan, branch of NBD (NBD-Warren). At NBD-Warren, Harmon was told that F & M’s account had sufficient funds to pay the cheeks and that the checks could be converted to cashier’s checks. David Parlangeli, an assistant manager at NBD-Warren, verified that no stop payment orders had been placed on the checks, and then wrote “no stops” and “TV,” the initials of the person from whom he received that information, on the checks. According to plaintiff, Parlangeli spoke with a senior loan officer for F & M’s account and then informed Harmon that he would not issue cashier’s checks for the F & M checks. Harmon left the bank with the cheeks, and without cashier’s checks.

The following day, Friday, December 2, Schering-Plough employee James Hamilton telephoned the Fairlane branch of NBD (NBD-Fairlane) and spoke with Assistant Vice President Sandra Martin. Plaintiff claims that Martin confirmed that funds were available to pay the cheeks and that the cheeks could be properly presented at her bank branch for certification. That afternoon, Hamilton arrived at NBD-Fairlane and presented Martin with the cheeks for certification. After consulting the folder containing information necessary to certify checks on zero balance controlled disbursement accounts, Martin learned and informed Hamilton that the F & M checks could not be certified.¹

Because NBD would not certify the checks or issue cashier’s cheeks in lieu of their certification, Hamilton decided to open an account with NBD-Fairlane and deposit the checks in an effort to expedite the availability of those funds. He contacted his office and instructed employees there to assemble and fax the documents needed to do that. The account, which was governed by a contract affording NBD the right to wait a reasonable time after an item has been deposited into the account before funds may be withdrawn to insure that the item has been collected, was opened on a temporary basis until the documents authorizing the account were legally reviewed.

Martin told Hamilton that she would know by mid-day on Monday, December 5, whether funds would be available for payment of the cheeks. Because she would not be in the office on Monday, Martin instructed Hamilton to call another employee, Cheryl Mosby, to verify that the funds had been deposited.

As instructed, Hamilton called Mosby on Monday and inquired whether the funds had been deposited in Schering-Plough’s newly opened account. According to Hamilton, Mosby told him that because F & M’s account was an “interdepartment” bank branch account and Sehering-Plough’s account was a regular NBD checking account, she would not know if the funds were collected until Wednesday, December 7.

NBD-Dearborn received the checks on Monday, December 5. That same day, F & M filed a petition for relief under Chapter 11 of the Bankruptcy Code.² The following day, NBD issued a notice to Schering-Plough stating that the checks were being returned unpaid with the notation “refer to maker.”

Schering-Plough filed this suit against NBD and NBD-Dearborn alleging that NBD and NBD-Dearborn accepted the checks under Mioh. Comp. Laws § 440.3408 and thus agreed to pay the amount indicated on the face of the checks. In addition, Schering-Plough claimed that: (1) NBD breached its alleged agreement of December 1, 1994, to issue cashier’s cheeks in exchange for the F & M checks; (2) NBD and NBD-Dearborn breached their alleged agreement of December 2, 1994, to certify the checks upon presentment; and (3) NBD and NBD-Dearborn breached their alleged agreement to make the funds represented by the checks avalable to Schering-Plough in its newly-opened account by mid-day December 5. Finally, Schering-Plough claimed that defendants breached their duties of good faith and fair dealing when they refused to honor the cheeks as promised in those agreements.

The District Court granted defendants’ motion for summary judgment, holding that the “no stops” and “TV” markings did not constitute acceptance of the cheeks, that NBD’s alleged promises to certify the checks, to issue cashier’s checks, or to make funds available were merely “preliminary discussions, invitations to deal, and estimates of the availability of funds rather than the firm and objective commitment that is required for contractual liability,” 890 F.Supp. 651, 656 (E.D.Mieh.1995), and that there was neither consideration for those agreements nor a consideration substitute such as promissory estoppel. The District Court further held that because all three alleged agreements were oral promises to engage in financial accommodations, the Michigan Statute of Frauds, MiCH. Comp. Laws § 566.132(2), bars their enforcement. Finally, the District Court dismissed plaintiffs cause of action for breach of duties of good faith and fair dealing on the basis that that cause of action cannot be sustained in the absence of an underlying, enforceable agreement. Plaintiff appeals from the District Court’s grant of summary judgment.

II. Discussion

A. Standard of Review

We review a grant of summary judgment de novo. Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 229 (6th Cir. 1990). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In determining whether summary judgment is proper, we view the facts and any reasonable inferences drawn from those facts in a light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The mere existence of a colorable actual dispute does not preclude an award of summary judgment; there must be a genuine dispute between the parties on an issue of material fact in order to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986).

B. Acceptance of Checks

Schering-Plough argues that the District Court erred when it granted summary judgment for the defendants, claiming that there is a genuine issue of material fact regarding whether the “no stops” and “TV” notations on the cheeks evidence NBD’s intent to accept the checks. NBD’s operating procedures provide that before a cashier’s check is issued for a check drawn against an NBD-Dearbom zero balance controlled disbursement account, the issuing employee must verify with the bookkeeper that no stop payments exist on the check and place the initials of the bookkeeper who provides that information on the check.³ Plaintiff suggests that once Parlangeli wrote “no stops” and “TV” on the checks, as required by the operating procedures, the checks were accepted, and that the “TV” and “no stops” markings evidence their acceptance. We disagree.

Under Michigan law,

“[ajcceptance” means the drawee’s signed agreement to pay a draft as presented. It must be written on the draft and may consist of the drawee’s signature alone. Acceptance may be made at any time and becomes effective when notification pursuant to instructions is given or the accepted draft is delivered for the purpose of giving rights on the acceptance to any person.

Mich. Comp. Laws § 440.3409(1). A signature may be made “(i) manually or by means of a device or machine, and (ii) by the use of any name, including a trade or assumed name, or by a word, mark, or a symbol executed or adopted by a person with present intention to authenticate a writing.” Mich. Comp. Laws § 440.3401(2).

Neither “no stops” nor “TV” constitutes NBD’s signed agreement to pay the cheeks as presented. “No stops” simply indicates that the drawer had not canceled the checks, and “TV” merely identifies the individual who provided that information. These markings do not represent a name, word, mark or symbol adopted by NBD. Nor do they evidence NBD’s intent to pay the drafts as presented or to authenticate them. Instead, they indicate that the checks satisfied one preliminary requirement to certification. Therefore, we conclude there is no genuine issue of material fact as to whether NBD accepted the checks.

C. The Michigan Statute of Frauds

Schering-Plough also challenges the District Court’s findings that the alleged promises to issue cashier’s checks, to certify the checks, and to make funds available constituted merely preliminary discussions, invitations to deal, and estimates of the availability of funds rather than the commitment required for contractual liability, and that the alleged promises were unsupported by consideration or a consideration substitute. Because we conclude, as did the District Court, that the Michigan Statute of Frauds bars the enforcement of these alleged agreements, it is unnecessary for us to consider whether these agreements were supported by consideration or reflected the intent of the parties to be contractually bound.

The Michigan Statute of Frauds in relevant part provides:

An action shall not be brought against a financial institution to enforce any of the following promises or commitments of the financial institution unless the promise or commitment is in writing and signed with an authorized signature by the financial institution:

(a) A promise or commitment to lend money, grant or extend credit, or make any other financial accommodation.

Mich. Comp. Laws § 566.132(2). The statute fails to define “financial accommodation,” and we and the Michigan courts have not had occasion to consider whether issuing a cashier’s check in exchange for a check drawn on a zero balance controlled disbursement account, certifying a check drawn on a zero balance controlled disbursement account, or making available funds represented by a cheek drawn on a zero balance controlled disbursement account are financial accommodations. However, plaintiff urges us to adopt a definition of financial accommodation that includes only extensions of money or credit to accommodate another. We reject plaintiffs argument.

Because the Michigan Statute of Frauds explicitly bars the enforcement of oral promises to extend money or credit, interpreting financial accommodation to reference only transactions involving the extension of money or credit would render the financial accommodation language superfluous. It is a well-settled rule of statutory construction, however, that courts should avoid interpretations of statute that render words superfluous. Vause v. Capital Poly Bag, Inc. (In re Vause), 886 F.2d 794, 801 (6th Cir.1989). Instead, after an examination of the purpose of the statute and the nature of the promises alleged in this case, we conclude that the term financial accommodation refers to transactions other than those involving the extension of money or credit.

The legislative history of Michigan’s Statute of Frauds reflects that the statute was designed to protect financial institutions from suits, by businesses that have experienced a significant downturn, alleging oral promises of financial commitment that expose the financial institution to a risk of loss. House Legislative Analysis Section, Financial Institution Commitments, House Bill 5968 (12-7-92). To determine whether the alleged agreements in this case were such promises of financial commitment, we examine whether execution of these promises would have required NBD to advance its own funds at a risk of loss.

Before considering whether the alleged promises were promises of financial accommodation within the meaning of the Michigan Statute of Frauds, however, it is necessary to understand the nature of a cashier’s check and a certified check. First, a cashier’s check is a bill of exchange drawn by a bank on itself. Mutual Sav. & Loan v. National Bank of Detroit, 185 Mich.App. 591, 462 N.W.2d 797, 799 (1990). Upon its issuance, a cashier’s check is a primary obligation of the issuing bank. Id. It represents the bank’s noncountermandable promise to make available its own resources to pay the amount represented by the check upon demand. Id.

Just as a bank pledges its own resources when it issues a cashier’s check, when a bank certifies a check, it accepts that check thereby assuming liability for its payment. MiCH. Comp. Laws § 440.3409(4). A certified check is a check accepted by the bank on which it is drawn. Certifying a check

implies that the check is drawn upon sufficient funds in the hands of the drawee, that they have been set apart for its satisfaction, and that they shall be so applied whenever the check is presented for payment. It is an undertaking that the check is good then, and shall continue good, and this agreement is as binding on the bank as its notes of circulation, a certificate of deposit payable to the order of depositor, or any other obligation it can assume.

First Nat’l Bank v. Currie, 147 Mich. 72, 110 N.W. 499, 501 (1907) (quoting Merchants’ Bank v. State Bank, 77 U.S. (10 Wall.) 604, 647-48, 19 L.Ed. 1008 (1870)). Once the bank certifies a cheek it is estopped from denying liability on the check. See First Nat’l Bank, 110 N.W. at 502-03.

When a bank issues a cashier’s check in exchange for a check drawn on a zero balance controlled disbursement account, certifies a check drawn on a zero balance controlled disbursement account, or makes available funds represented by a check drawn on a zero balance controlled disbursement account, before the account has been funded for the cheek’s payment, the financial institution assumes a risk of loss. That risk of loss stems from the fact that the payor of a check drawn on a zero balance controlled disbursement account may choose not to or be unable to fund the account for the check’s payment even after the cheek has been submitted to the drawee bank for collection; there is no guarantee that the check will be paid.⁴ Even if the bank has the authority to automatically transfer funds from the funding account or to draw on a credit line to fund the zero balance controlled disbursement account, the funding account may be depleted or no funds may remain on the line of credit such that there are no available sources of funding. In the event that the account, for whatever reason, is not funded for payment of that cheek, the bank that issued the cashier’s cheek in exchange for a check drawn on a zero balance controlled disbursement account or certified that check must nonetheless honor the cashier’s check or the certified check. See United States v. Wolfsmnkel, 44 F.3d 782, 786 (9th Cir.1995) (acknowledging that when a bank issues a cashier’s check in exchange for a check it bears a risk of loss); Gordon Fireworks Co. v. Capital Nat’l Bank, 236 Mich. 271, 210 N.W. 263, 263 (1926) (recognizing that a bank is liable on a cheek it has certified). Similarly, if the financial institution makes the funds represented by the check available to the payee before the controlled disbursement account has been funded for the check’s payment, and the zero balance controlled disbursement account is not funded, the financial institution may bear the risk of loss; once those funds are no longer in its possession, the bank cannot easily recover them.⁵

The dissent accuses the majority of the Court of exaggerating the risk that defendants would have assumed had they executed the agreements as alleged. The dissent suggests that if F & M had failed to fund the account for the checks’ payment after defendants paid those checks, the bank would have had “simple and straightforward recourse against [F & M].” As this case, demonstrates, however, that is not always the case. F & M’s bankruptcy would have frustrated any efforts on the part of the defendants to obtain “simple and straightforward” recourse.⁶ Due to the bankruptcy filing, defendants would have been forced by operation of the automatic stay to seek recovery in the context of the bankruptcy proceedings. Unless they were secured or could claim a right of set-off, their recovery would most likely be limited. Since defendants would have assumed the risk that quick and complete repayment in the event that the account was not funded would not be available if it en- ■ gaged in the transactions as alleged, the promises were promises of financial accommodation.

As is evident by the facts of this case, issuing a cashier’s check in exchange fer a cheek drawn on a zero balance controlled disbursement account, certifying a check drawn on a zero balance controlled disbursement account, and making available funds represented by a check drawn on a zero balance controlled disbursement account before the account has been funded for the cheek’s payment, expose the financial institution to a risk of loss and, therefore, are financial accommodations within the meaning of the Michigan Statute of Frauds.⁷ Accordingly, promises to engage in these transactions are unenforceable unless in writing.

Because NBD’s alleged December 1 promise to issue plaintiff cashier’s checks in exchange for checks drawn on F & M’s zero balance controlled disbursement account and defendants' alleged agreement to certii~r those checks are promises to engage in financial accommodations and are not evidenced by a writing, they are not enforceable. Finally, because defendants' alleged agreement to make the funds represented by the checks available in plaintiffs newly-opened account by mid-day December 5 also falls within the meaning of financial accommodation, we conclude that it too is unenforceable absent a writing.

Nonetheless, plaintiff argues that• NBD's alleged promises to make available the funds represented by the F & M checks by issuing cashier's checks, certiI~ying the checks, or by depositing those funds in plaintiffs account, were not promises of financial accommodation, but merely promises to perform a bookkeeping task involving debiting F & M's account and crediting plaintiff the amount of that debit. Plaintiffs argument, however, ignores the nature of the zero balance controlled disbursement account. When the account has a balance greater than zero, those. funds that are in the account have been designated to pay the checks that have already been presented, not the checks that may be presented in the future. Only after the check has been presented for payment is the payor requested to fund the account for that check's payment. However, as discussed earlier, the account may not be funded for any of a number of reasons. Because there were no such funds in F & M's zero balance controlled disbursement account that were available to debit when the checks were presented for payment, the alleged promises were not merely promises to perform accounting functions. Instead, they were defendants' promises to make its own funds available for the checks' payment and, therefore, were promises of financial accommodation.

Finally, plaintiff argues that, by definition, the term "financial accommodation" does not include agreements supported by consideration. Plaintiff, therefore, suggests that because the alleged agreements in this case were supported by consideration, they were not financial accommodations and, thus, the Michigan Statute of Frauds does not bar their enforcement. The Michigan Statute of Frauds bars the enforcement of oral promises "to lend money, grant or extend credit, or make any other financial accommodation." MIcH. CoMp. LAws § 566.132(2)(a). The statute characterizes promises to lend money and grant or extend credit as types of financial accommodations. See Micu. Coivrp. LAWS § 566.132(2)(a). Plaintiffs argument, therefore, suggests that whenever an oral promise to lend money or grant or extend credit is supported by consideration it does not fail within the Michigan Statute of Frauds. This interpretation, however, would defeat the purpose of the statute. Instead, the Statute of Frauds is unconcerned with whether certain promises are supported by consideration. It presupposes that the agreements are otherwise enforceable, and prevents their enforcement based on the type of promise and the fact that they are not evidenced by a writing. Therefore, we find that piaintiffs argument that the Michigan Statute of Frauds does not apply to defendants' alleged promises is without merit.

Given the applicabifity of the Statute of Frauds to defendants' alleged promises of financial accommodation and plaintiffs failure to meet the writing requirement contained therein, we find no error in the District Court's grant of summary judgment on plaintiffs contract claims.⁸

D. Promissory Estoppel

Next, plaintiff claims that the District Court erred by failing to consider its promissory estoppel argument. Plaintiff raises its promissory estoppel claim only in the consideration context, claiming that its travel from Memphis to Detroit was consideration for defendants’ promise to certify the cheeks or to make the funds represented by the checks otherwise available.⁹ To the extent that plaintiff claims that defendants’ promises induced Schering-Plough to travel to Detroit to obtain certification and open an account with NBD, the District Court did address plaintiffs argument and found that that trip was not a bargained for exchange, but instead merely a prerequisite for NBD to consider certification or to open the account.¹⁰ Nonetheless, because the Michigan Statute of Frauds bars enforcement of the alleged agreements, we need not address whether plaintiffs travel from Memphis to Detroit was consideration for the alleged agreements.

E. Breach of Duties of Good Faith and Fair Dealing

Finally, Schering-Plough argues that the District Court’s finding that it failed to state a cause of action for defendants’ breach of the duties of good faith and fair dealing was erroneous. Schering-Plough has conceded that if there are no underlying enforceable agreements, then its claim of breach of the duties of good faith and fair dealing must also fail. Because we find that the alleged agreements are not enforceable, defendants are entitled to summary judgment on plaintiffs claim alleging breaches of the duties of good faith and fair dealing.

III. Conclusion

For the reasons stated, we AFFIRM the decision of the District Court.

1 . On November 29, 1994, F & M issued a press release stating that it would report a loss for its quarter ending October 29, 1994. This reported loss resulted in F & M's default under its revolving credit agreement agented by NBD and thereby eliminated F & M’s ability to borrow under its working capital facility. Because NBD was uncertain as to whether the funding account would be able to fund F & M's zero balance controlled disbursement account, it decided that it would no longer certify checks issued by F & M or issue cashier’s checks in lieu of certifying them.

2 . At that time, F & M owed NBD $100,900,000, which included amounts available for draw under outstanding letters of credit, costs and expenses, interest, and attorneys' and consultants’ fees.

3 . Operating Procedure 3.00 in relevant part provides:

CERTIFICATION OF NBD DEARBORN CONTROLLED DISBURSEMENT CHECKS

In the event a branch is requested to certify a check drawn against an NBD Dearborn Controlled Disbursement Account, the customer is to be encouraged to accept an NBD Cashiers Check in lieu of certification.... Prior to issuing a Cashier’s Check, contact ARP Bookkeeping, Stop Payment Section (225-2185) to verify that no Stop Payment exists on the item presented. Record the bookkeeper's initials on the back of the check. Inform the bookkeeper that the check is not being certified but a Cashier’s Check is being issued in lieu of certification.

4 . The dissent suggests that we have assumed that F & M had "enhanced rights to determine whether or not it would pay checks presented on its account.” Dissenting opinion at p. 916. This characterization of our opinion, however, is inaccurate. We have assumed that F & M could fail to fund its account for the payment of checks. This failure to fund is no different from the possibility that an individual will withdraw all of his funds from his checking account before all of the checks have been presented for payment. In either case, funds would be unavailable for the payment of the checks that are outstanding. Although the payee of the check would not have recourse against the bank for its failure to pay the check when no funds were available, he would have recourse against the payor of the check for monies rightfully due. Therefore, our opinion assumes only that F & M had the ability to do what any other holder of a checking account has the ability to do, that is, fail to maintain sufficient funds in his account for the payment of the checks he issues.

5 . The dissent suggests that, as described in defendants' brief, F & M had the right to place stop payment orders on checks drawn on its zero balance controlled disbursement account. It then proceeds to discuss the provisions of the Uniform Commercial Code ("UCC”) that protect the bank when it pays a check over a stop payment order. F & M's ability to place stop payment orders on checks that it issues, however, is not a basis for our determination that paying these checks as allegedly promised would have required defendants to advance their own funds at a risk of loss. However, we do note that issuing a stop payment order and failing to fund the zero balance controlled disbursement account are distinct mechanisms of preventing payment on a check. While a stop payment order directs the bank not to pay a check for six months, Mich. Comp. Laws § 440.4403(2), the failure to fund the account for the payment of a check prevents the payment of a check only until the account is funded, an event that may occur at any time.

6 . We also question whether, as the dissent suggests, customers have a contractual duty to their bank to fund their accounts for payments of checks.

7 . The dissent suggests that our conclusion that the promises to engage in these transactions were promises of financial accommodations has the effect of amending the UCC in violation of the Michigan Court of Appeals' directive in Brown v. Yousif, 198 Mich.App. 667, 499 N.W.2d 446, 449 (1993), vacated in part on other grounds, 445 Mich. 222, 517 N.W.2d 111 (1994). In Brown, the plaintiff brought an action seeking foreclosure of his security interest in a liquor license pursuant to a promissory note and reassignment agreement executed in connection with the sale of a business. Brown, 499 N.W.2d at 447. The trial court granted defendant's motion for summary judgment on the grounds that the Liquor Control Commission (“LCC’’), an administrative body, had adopted a rule removing liquor licenses from the reach of Article 9 of the UCC and prohibiting the creation of security interests in liquor licenses. Id. 499 N.W.2d at 448-49. The Michigan Court of Appeals reversed the grant of summary judgment, holding that although the LCC had been given authority to control the traffic of alcoholic beverages, it had not been given the authority to amend the UCC. Id 499 N.W.2d at 449. The court relied on Mich. Comp. Laws § 440.1104, which states:

This act being of a general act intended as a unified coverage of its subject matter, no part of it shall be deemed to be impliedly repealed by subsequent legislation if such construction can be reasonably avoided.

Although the Michigan Court of Appeals interpreted this section, as the dissent indicates, to prohibit “any implied amendments of the Uniform Commercial Code,” we interpret this statement in light of the quoted provision and conclude that it only prohibits the implied repeal of portions of the UCC. See Brown v. Yousif, 445 Mich. 222, 517 N.W.2d 727, 731 (1994) (interpreting Mich. Comp. Laws § 440.1104 to prohibit the “implied repeal by statute” of the UCC).

While Articles 3 and 4 of the UCC regulate commercial paper and the conduct of banks and their customers, they do not govern oral promises to engage in those transactions. In addition, the UCC’s statute of frauds does not address the enforceability of oral promises made by financial institutions such as the ones at issue in this case. Mich. Comp. Laws § 440.2201. Instead, it only governs oral promises involving sales of goods. Because § 566.132 does not repeal and is not inconsistent with any UCC section, we conclude that interpreting that statute to reach the alleged promises to engage in the banking transactions at issue in this case does not violate the directive of Mich. Comp. Laws § 440.1104.

8 . In light of the dissent's repeated statements that the mechanics of F & M's account are unclear from the record and that the District Court's grant of summaiy judgment was premature, see dissenting opinion at pp. 913, 916 & n. 5, 919, we are somewhat confused by the dissent's suggestion that the Court certify the question of whether the promises as alleged were promises of financial accommodation. If we were to certify this question to the Michigan Supreme Court, the Michigan Supreme Court would be in no better position than we are to interpret the applicability of the Michigan Statute of Frauds to the promises alleged in this case. In addition, although Judge Matia characterizes his opinion as a dissent, whether his opinion is truly a dissent or a concurrence turns on his resolution of the contractual intent and consideration issues, for a finding of no contractual intent or of no consideration would dictate an affirming the District Court's decision.

9 . Plaintiff does not allege that it failed to pursue other opportunities to convert the checks to cash because of defendants’ alleged promises to issue cashier’s checks, to certify the checks, or to make the funds represented by the checks available. Nor does plaintiff's complaint include a count claiming that defendants were promissorily es-topped from refusing to. certify the checks or from refusing to make the funds available.

10 . Plaintiff does not claim entitlement to travel expenses associated with its employee's travel from Memphis to Detroit.