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Promissory Notes – Clarification of Certificate of Protest-Default-Dishonour
(1) Can anyone explain the difference in the wording in paragraph 1 of the Certificate of Protest ANZ Contract example and the CBA template example for the following:
ANZ – “to an earlier issued promissory note”
CBA – “to an earlier issued Statement of Account”
ANZ – “…honoured by certain parties as expressed in the underwritten, issued promissory note and earlier certification confirming payment was discharged, to which I did witness that:”
CBA – “…honoured by certain parties, to which I did witness that:”
Q… If you are using promissory notes to discharge a loan liability (e.g. personal/home loan) where you have created a Contract from the Statement of Account (thereby including the Default & Liability Clause & Notice), then what, if any, of the wording from the above two ANZ examples should be included in the Certificate of Protest?
(2) In the WHEREFORE statement on the 3rd line it states “noting the same was not dishonoured by the absent Payee”. Should this be changed to “noting the same was dishonoured by the absent Payee” given that the payee doesn’t show up to present the promissory notes for payment?
(3) Does each witness need to write “By “ before signing the Certificate of Protest? Do they need to write their full name directly underneath? It appears that the witness just signs the certificate. Is this correct?
(4) In the attached Certificate of Protest document, can someone please check if I have completed it correctly. I have put a strikethrough the parentheses or text where I understand it is to be deleted and in some instances nothing may be required to replace the parentheses.
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This discussion was modified 1 year, 8 months ago by
rtw711.
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This discussion was modified 1 year, 8 months ago by
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37 Replies
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Edit; You sign with whatever is your usual signature. “noting the same was not dishonoured by the absent Payee” sounds right. Didn’t they accept it by holding on to it for more than 72 hours? You only write a certificate of dishonour after they have failed to turn up to claim the gold or silver and sentence above that may be referrring to the fact they held the note for more than 72 hours? It all depends on the context, is the sentence referring to the PN or the fact they didn’t turn up at the meeting?
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Thanks for your reply. that is very helpful. You have made some valid points.
Yes, they did accept it by holding on to it for more than 72 hours so the statement “noting the same was not dishonoured by the absent Payee” may be correct. As to whether this is referring to the PN or the fact they didn’t turn up at the meeting, I note that on the 2nd line it refers to the “place of dishonour”, so this seems to indicate that they were in dishonour for not showing up for the meeting to present the PNs for payment?
Also, my understanding is that the wording “supra protest” (a few lines above the Wherefore paragraph) would be removed from the statement “as indorsed by John Henry Doe as the acceptor (by supra protest), indorser and or holder in due course.” Your thoughts?
Also, where you have parentheses e.g. [EF] after the bank’s name e.g. ANZ or their agent/s [EF], commercial default of any Dishonourable Party/ies etc, I assume you just delete these. You don’t need to add the names of the Accounts Manager or Chief Financial Officer (whose names appear in the Notice of Payment) to the C of P. Is this correct?
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su·pra·protest. “+ : an
acceptance or payment of a bill by a third person for the honor of the
drawer after protest for nonacceptance or nonpayment by the drawee.-
Acceptance supra protest is defined as an acceptance that is made after the protest has been made. It is a type of acceptance that is made by the drawer or the endorser of a bill of exchange or promissory note. This type of acceptance is made when the drawee refuses to accept the bill or note, and the holder of the bill or note decides to protest it.
My understanding was that the terms drawer and drawee applies to Bills of Exchange, not Promissory Notes. However, the above suggests they do apply. Is this correct?
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The acceptance or payment of a bill of exchange, after it has been dishonoured, by a person wishing to save the honour of the drawer or an endorser of the bill.
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I would think it applies to any payment instrument eg here’s another definition…A typical example of a drawee involves cashing a paycheck. The bank that cashes your check is the drawee, the employer who wrote the check is the drawer, and you are the payee.
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Are you saying in this instance when the payee didn’t show up at meeting it is still applicable and should be include in the C of P?
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This reply was modified 1 year, 8 months ago by rtw711.
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This reply was modified 1 year, 8 months ago by
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What is the whole paragraph that has this term in it?
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Here is the paragraph from ANZ C of P example. I had to remove all bold text due to formatting issues here. The phrase “supra protest” appears about 6 lines from the bottom:
NO FURTHER ANSWER nor COLLECTION OF PAYMENT REQUESTED was received, by the Australia and New Zealand Banking Group Limited (ANZ) [EF1], (or any other of their warranted agent/s, assign/s, officer/s, nominee/s, representative/s, employee/s or successor/s) (“<i style=””>Payee”) [EF]) when demanded other than RECEIPT, ACQUIESCENCE AND ACCEPTANCE AS TO EVIDENCE OF PAYMENT TENDERED BEING SUFFICIENT who by their own notification on earlier delivered (inchoate) accounting instruments intended to be executed in technical form were personating as : finance officers and agents [EF], who in/directly through their oath of office are statutorily bound under every public and municipal law including: the notice to principal is notice to agent and notice to agent is notice to principal, which as the makers, drawer’s and or signers of ANZ’s [EF] earlier presented (inchoate) statement of a transaction giving rise to payment being sought / executed in technical form, and Payee of the issued bill of exchange, being in a timely manner; accepted, answered completed and returned as indorsed by John Henry Doe [CD] as the acceptor (by supra protest), indorser and or holder in due course. Aforementioned officers holding respected public office being without; lawful excuse, due process inability and / or ignorance of The Law to not know what is required to properly hold, dispense and fairly administer their proper official lawful duties or answer the earlier accepted by notice and delivery instrument/s, and in good faith not permit any other inequitable, illegal and / or unlawful act to occur when such a duty exists, and any actions contrary to what they are bound, would otherwise be tantamount to fraud.
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That ‘inchoate’ needs to be changed to ‘incomplete’ if you ever see it in the text of any instruments. Inchoate is a blank instrument whereas incomplete more accurately describes the process.
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So the one you have with ‘incomplete’ is the more up to date version.
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Yes, I was aware of that as Mark has spoken about that in the module video and at other times in the Q&A sessions. However, thanks for pointing that out.
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That’s great. yes it looks like the supra protest is referring to the certificate of protest which the witness/private notary fills out to save the indorsers honour. So you can probably include it if you want to.
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I can’t find the word ‘supra’ in your document.
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No, I didn’t include it originally. However, it appears in the ANZ Certificate of Protest example in the promissory note module before the sentence “Aforementioned officers…” in the top section of the certificate as follows:
“…answered completed and returned as indorsed by John Henry Doe [CD] as the acceptor (by supra protest), indorser and or holder in due course.”
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Oh ok it sounds like the supra protest is referring to the payment being made or rather verified by your witnesses protest (on the certificate of protest) to save your honour.
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I would think it would be to an earlier issued PN.
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I would use the ANZ example, if I had issued a PN that had been dishonoured.
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I presume the letters in parenthesis are put there to enable you to replace them easily in a word processor witht he details that need to be there, so they would automatically be replaced by what you fill in, in those places. So for example all [EF] s would be automatically replaced at the same time and it would save you time filling in every one individually.
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Yes, I agree. However, my understanding is that in some instances the parentheses can just be deleted e.g. successor/s“) (“Payee”) [EF], default of any Dishonourable Party/ies [EF]. In these examples, I assume you would just delete the parentheses as nothing needs to be entered here. Would you agree?
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This reply was modified 1 year, 8 months ago by rtw711.
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Yes I would agree.
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I would leave “Payee” and either delete just the brackets or not. If you’re deleting the brackets, then a comma between the list of different agents and “Payee” because you are adding “Payee” as a title that the CBA could be referred to as, within all your legal documents including the Redraft notices and Default & Liability Clause and Notice. Don’t leave anyone out of this list. Make sure you cover every party.
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This reply was modified 1 year, 8 months ago by
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Also further to the differences between the ANZ loan example and the CBA C of P template document, are you able to explain the following statement (in bold) which is included in the ANZ C of P example (not in CBA template) which appears in the 1st paragraph of the C of P:
“affirm and protest certain events relating to an earlier issued promissory note and
the requirement for same to either be accepted, paid and / or honoured by certain
parties as expressed in the underwritten, issued promissory note and earlier certification confirming payment was discharged, to which I did witness
that:”?Also, in the above statement, is the text “<b style=”font-family: inherit; font-size: inherit; color: var(–bb-body-text-color);”>earlier certification confirming payment was discharged” implying that the bank has already accepted the promissory note as payment and discharged the liability for the amount owing? Is my interpretation correct?
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I’m not sure what it means by ‘an earlier issued promissory note’ but it sounds like they may have had another note that was dishonoured also, I could be wrong they could be referring to the one being dealt with. But anyhow you choose wording that suits your situation. The wording on the example PNs is meant to be used as a template, with you making changes to wording that will not suit your circumstance. Certain wording will apply on all occasions and you can work that out by applying it to your circumstance and seeing if it fits. If not then change it to suit.
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I have printed out the ANZ & CBA C of Protest to compare, and looked at the CBA Affidavit points 24 & 25 to understand the different circumstances. So, it looks like in the CBA example, the statement of account/s x 3 were paid by 3 x promissory notes which were sent together for payment. These 3 promissory notes are being protested on the day that there was a no show for presentment for payment. The three appointment times on the 3 x C of Protests are 5 minutes apart. The Maker was waiting for 3 promissory notes to be presented that day by the Payee, and made the appointment times for presentments 5 minutes apart. So the wording could say “Statement of Account”, and/or “promissory note” or even “bills of exchange” – such as is in my Certificate of Protest from the Money Order/A4V module. All would be correct wording. I would use “promissory note” by itself or “Statement of Account and Promissory Note” to be more suited to your payment type, rather than the general “bills of exchange”. Both would be correct, unless you didn’t get a statement of account e.g. if it was a different titled offer to contract document that was received. Whatever it was titled, you can use here, to make sense to them, to make reference to it for them.
The ANZ extra sentence including “and earlier certification confirming payment was discharged” that is not included in the CBA one. This is something specific to what that person did in the ANZ case. They possibly did an earlier certification as soon as the promissory note payment was discharged by certain reasons for discharging liability. Or maybe this “certification” is referring to the certificate of mailing, that went with the promissory note, and they are saying, this is confirming that the payment was discharge because I know how long after you received the registered mail envelope with tracking, that you have held onto this payment for more than 72 hours = payment discharged, even though I didn’t do a certificate of protest until now. These are just options to give you ideas of what you can add in if you need to for your circumstances, or not add them in, and just keep it simple. I don’t think they understand what we’re talking about anyway.
2) I think it should say the same “was dishonoured” because the rest of the paragraph says “…therefore in accord and satisfaction” etc etc “…doing so pursuant to s.100(2), I hereby declare this Certificate…” So, I think it’s referring to the absent Payee not showing up, and therefore dishonouring and that’s why the Notary is doing the Certificate in accordance with BOE Section 100. But by all means check with Mark if you want to be sure and let us know. The Certificate of Protest I used for BOE Money Order says “was dishonoured” on it. I get the reasoning that the payee did not dishonour when they held on to it for 72 hours, however, I would think that the Certificate of Protest sounds conflicting/double minded to say the absent Payee did “not dishonour” when the heading says that the absent payee is dishonouring. And of course there could be some differences that I might not be seeing here with the Money Order vs the Promissory Note. Not sure, only Mark would know if that was a typo.
3) No, they don’t need the “By” line, nor printed name underneath if you have typed out each name within the document. I removed their listed names and the area allotted to each witness to sign. I put a blank lined space where it says “three” good witnesses. e.g. “in the presence of ________________ good people from the community…”. I get them to sign across the bottom of the page from left side of the page to right, on the gap at the bottom of the page under the Notary’s alloted line. I get as many people to come out for a cuppa and sign. They sign and write/print their name(only first and middle name) underneath their signature. Then later I can count them up and write in the number of how many witnesses I got. My Notary signs, and the area where the Notary’s name gets typed in at the beginning, I also put a blank line there, just incase my notary can’t make it and someone else has to sign. They will just write their name on the line, and sign as Notary.
4) You haven’t got the town in the address in the 1st paragraph. (I didn’t put the street in mine). The last paragraph “Commonwealtrh” typo – not your fault. It’s in the template. That needs to be fixed up. The unique number of the Certificate, make it day,month,year,time usually of the meeting. e.g. 161020231035 . At the very bottom in fine print, for the Notary address, I try to protect any private information as much as possible. I have a PO Box address. I use that address for my notary. I don’t give out any personal addresses or details to the parasites or the system.
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Thanks for your very detailed replies. Much appreciated and very helpful in increasing my understanding of the Promissory Note process. In responding to your paragraphs, I will respond to your paragraphs using the same numbering assuming that the 1st two of your paragraphs in your reply can be numbered as 1).
1) I agree that for an earlier issued Statement of Account and promissory note (PN), the wording could say “to an earlier issued Statement of Account and promissory note and the requirement for same…”.
I will have to update my modules as my Money Order A4V module doesn’t contain a Certificate of Protest (C of P).
I will try and clarify the certification (and dishonour) issue with Mark in tomorrow’s Q&A but I already have a few questions for him so he may not answer this.
2) I was thinking that the dishonour occurred because the Payee didn’t show up given that it states on the 2<sup>nd</sup> line of both ANZ and CBA C of P examples i.e. “at the place of dishonour”.
Yes, I agree it is conflicting and confusing and a Q&A session question.
I will have to update my BOE module also as mine doesn’t contain a Certificate of Protest (C of P). This is only included in my Promissory Note module, not the other payment modules. Mark has obviously updated them since I purchased them.
3) If you use the C of P CBA template as is, on the line “WHEREFORE I now, in the presence of three good people from the community, namely”, what is the correct format for the names of the witnesses i.e. “John Henry Doe”, “John Henry Doe” or “John Henry “ with them obviously signing with their usual signature at the bottom of the C of P on the line allocated for this?
4) I just copied what was in the C of P template. However, the ANZ C of P example indicates that the Town needs to be entered before the State on the 1<sup>st</sup> line.
Yes, I noticed the typo in the word “Commonwealth” too. Also, in my Affidavit (of payer ) template in the same PN module, in paragraphs 22 &23 there are typos where ‘non exists’ should be ‘none exists’.
Yes, my Notary has a PO Box too which is good. I will have to consider getting one too.
Also, a few issues I overlooked in clarifying, is that in the “WHEREFORE I now, in the presence of” paragraph, about 4 lines from the bottom it has for both ANZ and CBA examples:
ANZ – “in being the legitimate; acceptor, bearer, drawer, maker, holder and / or indorser [CD] of the aforesaid instrument, which may be converted into a bill”
CBA – “in being the legitimate; acceptor, bearer, drawee, maker, holder and / or indorser [CD] of the aforesaid instrument, which may be converted into a contract”
Q4.1… Where it says “may be converted into” a “bill/contract”, for the ANZ loan example with a Statement of Account and promissory note having been issued, would it be valid to write or say “converted into a contract or bill” or exclude the word “bill” from this statement?
Q4.2… What do you consider the “aforesaid instrument” to include for the ANZ example? i.e. includes the Statement of Account and the promissory note or does it also include the Contract?
Q4.3… I note that you would have to remove the words “drawer” and drawee” if using a PN. My understanding is you would only include these terms if issuing a Bill of Exchange. Is my understanding correct?
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Can anyone explain the following statement which is included in the WHEREFORE clause of the Certificate of Protest. I find it confusing when the Payee is in possession of the promissory notes (not the payer) because the Payee failed to show up for coffee shop meeting:
“…in being the legitimate; maker and / or indorser [CD] of the aforesaid instrument, the person in possession of the instrument in this case : Joanne Helen Smith [CD]…”
Does this need to be modified and change “Joanne Helen Smith [CD]” to the Payer (the loan company)?
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What he is saying is that when the acceptor, bearer, drawee, maker, holder and/or indorser (you) received the instrument from the Bank you had prima facie authority to fill it in because it can be converted into a contract and you can fill in the omission in any way that you see fit
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Ok. Thanks.
So in these examples, what do you understand (or define) the instrument to be? The Statement of Account, the Statement of Account + promissory note?
If the payee failed to show up at coffee shop meeting, would it be valid to say “the aforesaid instrument may be converted into a contract or bill” where the Statement of Account has been turned into a Contract i.e. would you exclude the word “bill” from this statement (as it is only relevant for a Bill of Exchange)?
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I believe it is referring to the instrument that you received from the bank initially and your ability to turn that into a contract and completing it any way that you choose to.
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In these examples, my understanding is the instrument would be the issued Statement of Account.
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Ok great.
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Would you agree?
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Yes I would agree.
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A promissory note is a specific form of a bill of exchange
with the essential difference being that a promissory note is a promise
by the maker to pay whereas an ‘ordinary’ bill of exchange is an order
to someone else to pay.-
Yes, that was my understanding too.
So in the ANZ example, the statement “the aforesaid instrument may be converted into a contract or bill” seems valid. Would you agree?
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Yes.
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