Quote:
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Originally Posted by wirlwind
If you tender w/o condition, and they come to your door to collect on your PN, then what?
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I have the evidence of the agreement. The meeting of the minds. It has been memorialized by a third party witness (Notary). Besides this has not happened. Like I said I have a Supreme Court of Florida decision that says no Notice of Dishonor, no prosecution. Also, I do not use a PN. I use a Foreign Bill of Exchange and it must be protested to hold the drawer liable according to the Fla.S.C. cite I have. I have posted the cite on the board, but can't remember where. The cite is in the below acceptance letter.
Just in case you have not seen this:
CERTIFIED MAIL xxxx xxxx xxxx xxxx xxxx
Date:
John Henry Doe
Non-Domestic
c/o Address
City, State
CREDITOR
PO BOX 99999
CITY, ST ZIP
NOTICE OF ACCEPTANCE UPON PROOF OF CLAIM
Dear Creditor:
Thank you for your offer/draft received on January 26, 2005 regarding the alleged debt of JOHN H DOE account number XXXX XXXX XXXX XXXX . The undersigned does hereby accept for value the offer/draft, hereinafter the offer/draft upon proof of claim that the matter has not already been settled and closed. All claims are accepted for value upon proof of claim that:
1) The foreign bill of exchange, number XXXX, bearing the certification number 2003xxxxxxxx and UCC Contract Trust #7000 1670 0000 0000 0000-EIN that was sent by the undersigned addressed to CREDITOR, P.O. Box 9999, CITY, ST ZIP on January 13, 2005 by United States Postal Service Certified Mail No.XXXX XXXX XXXX XXXX XXXXreceived on January 17, 2005 as evidenced by the signed return receipt (PS Form 3811), was sent solely and exclusively to the drawee, John Snow, Secretary of the Treasury, hereinafter “drawee,” for his acceptance or refusal and that a Notice of Dishonor was issued reflecting the refusal of the tender by the drawee.
2) The undersigned has been presented with any documents and/or evidence demonstrating that the foreign bill of exchange referenced above is insufficient as to form, substance and amount, i.e., a written Notice of Dishonor was issued for non-acceptance or non-payment of a foreign bill, for the discharge and settlement of the debt of the DEBTOR JOHN H. DOE.
In the Florida Supreme Court case of ISAAC JOSEPH, APPELLANT, vs. JULIUS SALOMON, APPELLEE, 19 Fla. 623; 1883 Fla. LEXIS 4, Decided January, A. D. 1883, the Court stated:
“This being a foreign bill, was protest and notice necessary? Kent Commentaries, Vol. 3, 117, lays down the rule as follows: ‘The demand of acceptance of a foreign bill is usually made by a Notary, and in case of non-acceptance he protests it, and this notarial protest receives credit in all courts and places by the law and usage of merchants, without any auxiliary evidence, and it is a requisite step, by the custom of merchants, in case of the non-acceptance or non-payment of a foreign bill, and must be made promptly upon refusal. It must be made at the time, in the manner and
by the persons prescribed, in the place where the bill was payable. It is sufficient, however, to note the protest [*633] on the day of the demand, and it may be drawn up in form at a future period. The protest is necessary for the purpose of prosecution, and it must be stated and proved in a suit on the bill.’ In Daniels on Neg. Inst., § 7, it is [**15] said that ‘the chief difference between foreign and inland bills is this: The former must be protested in order to charge the drawer, while the latter need not be.’ Again in the same work in § 579, the author says: ‘But in respect to foreign bills which are dishonored by refusal of acceptance or payment, the liability of the drawer and endorsers can only be preserved by a protest and notice." (Emphasis added)
Statutory Requirements. The statutory requirements and provisions that CREDITOR seeks to disregard are both federal and state. The federal law upon which the undersigned had good-faith reliance is House Joint Resolution 192, June 5, 1933, hereafter referred to as “HJR 192,” as quoted in Guarantee Trust Co. of New York v. Henwood, 307 U.S. 247, 59 S.Ct. 847 (1939) at 252 [fn3]:
Whereas the existing emergency has disclosed that provisions of obligations which purport to give the obligee a right to require payment in gold or a particular kind of coin or currency of the United States, or in an amount in money of the United States measured thereby, obstructs the power of the Congress to regulate the value of the money of the United States, and are inconsistent with the declared policy of the Congress to maintain at all times the equal power of every dollar, coined or issued by the United States, in the markets and in the payment of debts… That [a] every provision contained in or made with respect to any obligation which purports to give the obligee a right to require payment in gold or a particular kind of coin or currency, or in an amount in money of the United States measured thereby, is declared to be against public policy; … the term 'coin or currency' means coin or currency of the United States, including Federal Reserve notes and circulating notes of Federal Reserve banks and national banking associations. (Emphasis added)
The Florida Statutes are in harmony with HJR 192 and cannot be disregarded. The undersigned relies on all of the following statutes in support for tendering the foreign bill of exchange: Fla. Stat. 672.304: “Price payable in money, goods, realty, or otherwise. (1) The price can be made payable in money or otherwise” (emphasis added) and Fla. Stat. 199.023(2) specifically includes bills of exchange in its definition of “Money.”
Furthermore, the undersigned also relies on Fla. Stat. §673.6031(2) Tender of Payment:
(2) If tender of payment of an obligation to pay an instrument is made to a person entitled to enforce the instrument and the tender is refused, there is discharge, to the extent of the amount of the tender, of the obligation of an indorser or accommodation party having a right of recourse with respect to the obligation to which the tender relates. (Emphasis added)
NOTICE TO AGENT IS NOTICE TO PRINCIPAL, NOTICE TO PRINCIPAL IS NOTICE TO AGENT.
If you cannot provide proof of claim, or there is no response on your part within ten (10) days of receipt of this letter CREDITOR as principal is stipulating and agreeing that the tendered foreign Bill of Exchange is sufficient as to form, substance, and amount for the discharge and settlement of the debt of the DEBTOR JOHN H. DOE.
All communications must be done through my agent, JANE HENRIETTA DOE, whose mailing address is c/o Address, City, State Zip.
Respectfully,
_________________________________________
John Henry Doe, Secured Party – Creditor
Enclosures
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CERTIFICATE OF MAILING
On_________________________I mailed to:
CREDITOR
PO BOX 99999
CITY, ST ZIP
the papers identified as:
NOTICE OF ACCEPTANCE UPON PROOF OF CLAIM
by mailing them for John Henry Doe in a pre-paid envelope, addressed to the recipient named above, bearing Certified Mail No. xxxx xxxx xxxx xxxx xxxx Return Receipt Requested.
_____________________________________
JANE HENRIETTA DOE, Notary public
c/o Address
City, State Zip
Enclosures
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