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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86599
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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TO WHOM IT MAY CONCERN. &

Resolved Question:

TO WHOM IT MAY CONCERN.                   DATED: November 31, 2010

Re: Presentment, MSA 19.3504, (2) (a) (c); (3) (b)

STATEMENT OF FACTS.

I am a recent victim of identity theft from Canada and it was a wake up call for me.   I will be 90 on 12-25-20, and am not a wild, long hair, need a shave, sagging pants, hip-hop youngster.

I decided that I could best protect my Bank checking account by using Promissory Notes (“Sight Drafts” or “Bill of Exchange”) to obtain goods or services that required the holder to forward the non-cash item to me so that I could inspect and verify the content thereof and authenticate the signature after which I would write a check drawn on my Bank checking account and pay by mail the sum due and owing.

The Items were unconditional promises by means of which I promised to pay to the order of the holder a sum certain in dollars on demand or at a definite time period as required by the Uniform Commercial Code, Commercial Paper. Mich, Stat, Anno. 19.3104 1. (a-d); 2 (a).

THE GOOD:

Many payees mailed the items to my Post Office Box 215, to make PRESENTMENT and when I was convinced that the item was genuine I would thereupon draw a check on my Bank account and mail it to the payee to make actual and final settlement.

When I would receive such Bank requests at POB 215, (containing the actual item or a copy thereof), I would promptly mail the correct amount on my Bank check; and sometimes the merchants who had made PRESENTMENT would send the evidence (or a copy) to POB 215 and receive from me by return mail payment in full.


THE BAD:

On the other hand, many vendors who could speak, read, write and understand English were dilatory, negligent and deposited in their bank accounts the non cash items (Credit Notes) along with the daily accumulated checks they had received during the normal course of the business day.

Please Take Notice that many vendors never PRESENTED the Notes by mailing the same to and payable by me or At, or Through POB 215.


THE UGLY:

Many Bank employees, either through lack of training, deliberate indifference, or willful negligence, failed or refused to make PRESENTMENT, i.e., never forwarded the Notes to POB 215, and returned the same to the vendor; sometimes with notations such as “Counterfiet” (sic), “forged”, “falsely made.” or “altered”.

Needless to say, the merchants upon receiving the returned Notes for the second time failed and refused to read the language on the obverse of the instrument and did NOT make PRESENTMENT (send the item or a copy thereof) to POB 215 for redemption.

THE WORST:

Several Merchants turned the evidence over to the local law officers who also failed/refused to pursue any effort to make PRESENTMENT to or through POB 215, to determine if payment would be coming therefrom.

          The local law officers thereupon turned the evidence over to the Prosecuting Attorney as a Criminal matter who also did not make any
          attempt for PRESENTMENT and, in defiance of the U.C. C., C. P., issued a Criminal Warrant of arrest!

          I have on several occasions had to hire defense Attorneys to get charges dismissed in Federal and State Courts at great expenses, humiliation, [jailing(s), imprisonment(s)] in derogation and in violation of my Privacy, Civil Rights, (42 USC 1981, et seq,) Constitutional protections, Commercial Law, and the Due Process of law. e.g., Uniform Commercial Code, Commercial Paper.

           I will pay for your time and advice for you to tell and show me the EXACT WORDS I must place on the face of my Notes in order to give me 100% Legal protection and the right to sue for damages any and all persons, Banks, and other entities that have or may in futuro cause me to be deprived of the fundamental right to engage in Contracts and to be free from the threats and the loss of Liberty, unlawful denial of Commercial Rights, Privileges, and Immunities, based upon the acts or omissions of others.

           I truly believe that the provisions of the Uniform Commercial Code, Commercial Paper, place a mandatory obligation upon those who come under the provisions of those laws as made and provided and which have stood the test of time in all of the United States of America, except Louisiana which has a Negotiable Instrument Law of its own…



Respectfully submitted,


XXXXX XXXXXpscomb
3729 Long Highway
Charlotte, MINNN-NN-NNNNXXX@XXXXXX.XXX
Submitted: 3 years ago.
Category: Legal
Expert:  Ely replied 3 years ago.
Hello,



Thank you for the opportunity to assist you. Please remember that there might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.



I am sorry for your situation. To understand you correctly, you're seeking language to put on your check that will clear liability from your person if said checks are mishandled by the banking institution?



Customer: replied 3 years ago.

Dear Attorney Eli:

 

I notice that you refer to the instruments mentioned in my problem as being a "CHECK". (Checks being Issued by a Bank)

 

The item under discussion is a Promissory Note, or a Sight Draft or a Bill of Exchange and is not issued by a Bank. (My instrments are Issued by me)

 

The subject matter has nothing to do with a check. PLEASE TAKE NOTICE.

 

This is the major difference that has other people failing or refusing to obey the clear and conspicuous mandates of the Uniform Commercial Code, Commercial Paper.

 

Please carefully re-read my Statement of Facts and you will see that all through the narrative I am talking not about checks, but about delayed payment instruments, why they were created and how the Vendors, Banks and Law officers have perverted the intent and express language of the UCC, CP to my injury and detriment.

 

I regret that I did not make myself

more clear in writing the problem.

 

If you are too busy to dig into the heart and soul of the UCC, CP, then, perhaps we both are not on the same page.

 

I need and will pay for time and advice ONLY for information [certain words] on the face of the instruments; How best to protect myself from the fumbling and illegal acts or omissions of others who have caused me large sums of Attorney fees, loss of liberty and illegal detention.

 

The UCC,CP, deals with Civil-Commercial laws with which I am acquainted more than casually. So far, I have not found the correct combination of words to stop others from

acts or omimssions that have caused me hurt, harm and danger.

 

I have contacted the local Attorneys in my city and find that they are immersed in Criminal, Probate, Bankruptcy, Real estate and a whole series of specialities, except the Uniform Commercial Code.Commercial Paper.

 

When I talk to them, they seem bewildered or have forgotten what they learned in Law School 101. This is why I am using the Internet.

 

I surely hope that you and I can get this thing together. I remain

 

With all due respect,

 

 

Robert

XXXXX@XXXXXX.XXX

 

.

 

 

Expert:  Ely replied 3 years ago.
Hello,

I am sorry, I meant promissory note. I will render an answer first thing in the morning.
Customer: replied 3 years ago.

Hello,

 

I am glad that we are now talking about delayed payment instruments.

 

My target and hazardous trips were dedicated to creating a [paper] credit card that will punch a big hole in the Bank's sky-high interest rates, penalties, and other rip offs.

 

With the economy in the dumps I feel confident that many people will now leap at the chance to Buy Now and Pay Later with an Interest Free instrument.

 

I will have a Web site set up and offer on the Internet the AMAZING INTEREST-FREE (Paper Credit Card)!

 

Once you produce the Magic Words so that me (first) and others (who follow) will avoid the legal probems that I have faced in the past.

 

Any and all Merchants will be glad to be released from the slavery of the Plastic Credit Cards that cost them far more than they would voluntarily contribute as Juice to the Banks' Silent Robbers.

 

I frequently talk to the local merchants and confidentially they often gripe about the fees they have to pay to the Banks, just for the so-called privilege of a Merchant's Account.

 

Plenty of them give me a discount on goods or services when I pay cash.

 

OK, you now see and understand from where I am coming and the direction to which I am heading.

 

Let' hop to it and do it. OK?

 

Bob Lipscomb

XXX-XXX-XXXX

Expert:  Ely replied 3 years ago.
Hello,First of all, there is no way to be 100% protected from accusations. Regardless of what the words that you put on your promissory notes, you will sometimes have the odd individual who either, like you said - through negligence or willfulness - claim that the promissory notes constituted the actual payment, and would pursue a civil and/or criminal action.I will answer your question in the same format that you have presented it, or more less.THE THRESHOLDRegardless of what is written, it also depends on where and in what type the explanation for what type of instrument this is. If you simply give someone a promissory note that looks like a check, has the account's numbers, and an amount, it looks to the average person as though it is. This is the threshold in both criminal and civil matters for something like this - WHAT WOULD THE AVERAGE PERSON THINK that instrument was?FORMATTherefore, I urge you to consider the following innovations that would render the instrument UNMISTAKABLY a promissory note, and not a payable check. Some you may already have included, but some you may not have-have the words 'PROMISSORY NOTE, NOT A CHECK AND/OR BILL OF EXCHANGE' written at the top of the instrument.-at the time of execution of sale, if possible, have the seller sign an understanding that this is a Promissory Note, and not a check. Their signature on that sheet of paper is priceless for proof that they knew it was not a check.-Do not include your bank's routing number or information on the promissory note.-Do not use the same dimensions of a check for your promissory note, but perhaps a standard 8 x 11-finally, include the following at the bottom in bold: 'THIS IS NOT A CHECK, BUT A PROMISSORY NOTE AS DEFINED BY § 9-102(a)(65). BY ACCEPTING THIS PROMISSORY NOTE, THE BEARER UNDERSTANDS AND AGREES THAT THIS IS NOT AN INSTRUMENT OF PAYMENT AND/OR BILL OF EXCHANGE, COMMONLY KNOWN AS A CHECK.'-Also, make sure that the wording never says 'payable to' but 'I, ____(your name), agree that I will owe $_________ to ____ upon receipt and approval of the following merchandise:...Now I know this may seem somewhat redundant, but this is the key here. With the title, the absence of the words 'payable to' and bank information, as well as a bold lettering at the bottom confirming this as a promissory note, there is simply no way that any court (civil or criminal) would take seriously an action brought by a party that claimed that this was a genuine check and that you meant for it to be. A civil court needs proof by a preponderance of the evidence, i.e. 51% or over. A criminal court requires proof beyond a reasonable doubt. These precautions will likely kill off many such claims.SAMPLEROMISSORY NOTE, NOT A CHECK AND/OR BILL OF EXCHANGEI, ___, hereby agree to pay ____ the sum of $___ upon receipt and approval of the following merchandise/items:____. This correspondence may be enforced as a contract. (Lacking any bank information). In the event any provision of this Contract is deemed to be void, invalid, or unenforceable, that provision shall be severed from the remainder of this Contract so as not to cause the invalidity or unenforceability of the remainder of this Contract. All remaining provisions of this Contract shall then continue in full force and effect. If any provision shall be deemed invalid due to its scope or breadth, such provision shall be deemed valid to the extent of the scope and breadth permitted by law.

This constitutes entire contract. This Contract including any addendums or exhibits hereto which are by this reference made a part hereof, contains the entire contract relating to the assignment of the vehicle and shall bind and insure to the benefit of all respective heirs, personal representative, successors and assigns of the parties hereto except as hereinabove expressly limited. Any oral representation or modifications of this Contract shall be of no force and effect, excepting modification in signed by the party to be charged. Except as otherwise provided in this document, this Contract may be modified, superseded, or voided only upon the written and signed contract of the parties. Further, the physical destruction or loss of this document shall not be construed as a modification or termination of the Contract contained herein.

The parties hereto specifically agree that the provisions of this Contract are just and right, having due regard for the rights of each party, and intent hereby to estop themselves from any contention to the contrary in any court or jurisdiction. Each party voluntarily and expressly waives any right to disclosure of property or financial obligations of the other party to this contract. Each party expressly acknowledges that such party understands that this contract modifies or eliminates marital property rights which would otherwise exist under Michigan law in the absence of this contract. Each party expressly acknowledges that such party has been advised of his or her right to obtain the services of independent legal counsel with respect to this contract.
(SIGNATURE/DATE)
'THIS IS NOT A CHECK, BUT A PROMISSORY NOTE AS DEFINED BY THE UNIFORM COMMERCIAL CODE §9-102(a)(65). BY ACCEPTING THIS PROMISSORY NOTE, THE BEARER UNDERSTANDS AND AGREES THAT THIS IS NOT AN INSTRUMENT OF PAYMENT AND/OR BILL OF EXCHANGE, COMMONLY KNOWN AS A CHECK.'

This should prevent any misunderstandings. You might have some individuals back out of transactions with this situation, but it should drastically cut down any claims like those that you have had before.




Edited by Eli on 11/2/2010 at 11:46 PM EST
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86599
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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