Default and Liability Clause & Notice

[rtw711]

In 1, Is “Drawer” no longer required?

[rtw711]

Thanks for your reply, that is very helpful and confirms my understanding of “Drawer” that it would not be required for the PN process. I have checked in the promissory note (PN) module D & LC & N template and it just has the words “Maker/Indorser” whilst the D & LC & N template included in the BOE module has “Maker/Drawer/Indorser”.

• This reply was modified 1 year, 8 months ago by  rtw711.

[sseeto]

If you are attaching a promissory note, then it should say “maker/Indorser”. The CBA one is correct. It looks like the ANZ example provided is just a sample of how it should be indorsed all over. I noticed that the names throughout are John Doe and Jane Doe, so Mark has just wiped out the identity of the person and used John Doe…see the signature at the bottom of the pages are John Doe’s. The ANZ has a promissory note attached so it should say “maker/Indorser”. The D & LC & N template has “Drawer” on it as well because if you use a BOE instead of a promissory note to pay, you will need it to say “Drawer/Indorser”. The same D & LC & N template is used for various forms of payment, so you will have to delete or replace the not applicable words, including the parties to the contract…you may have less, you may have more, than the examples have.

As for your last question regarding whether to change the laws of the state to your state, I would rsvp for Mark’s next Q & A session, and have your question typed in a word document before the session and as soon as the session starts, copy and paste your well worded question(so he can understand the question without being long winded) into the chat box. Ensure your comment begins with “Q: ” so Mark will know that it is a question, as this is what he is looking for in the chatbox.

[rtw711]

Yes, I was going to ask Mark in the next Q&A if no one had replied to clarify this. My understanding is that you apply the laws of the State/Country where the event occurs, in this case for the ANZ contract example, it would be the laws of NSW. In the CBA example, the laws of Queensland.

Also, are you able to explain the omission of paragraphs (or clauses) 13 & 14 included in the ANZ Redraft example from the PN Redraft template document (CBA example)?

[sseeto]

13 & 14 from the Redraft are also in the Default & Liability Clause and Notice end of 2nd paragraph through to 3rd paragraph. If anyone defaults to pay 4 x the amount of the promissory note, is worded in 13 & 14 as “breach of contract”. I wouldn’t hurt to have 13 & 14 added in the redraft document that it is missing from, even though it is in the Default & Liability Clause and Notice. There may be a difference between Breach of Contract and Defaulting. In my short experience so far, breach of contract has been if you have already paid them, and they ask for the money again. Defaulting could be, not performing according to the instructions within the contract. e.g. Not returning the payment within 72 hours back to you if they don’t accept it. Just check with Mark to clarify when you would add 13 & 14 to the redraft notice. And when you find out, please put your answer here, so I can learn too.

[rtw711]

Thanks for your response, that is very helpful.

Also, my understanding is the defaulting party/ies has to pay 4x the amount of the loan if the promissory note was issued to pay off a loan for example but not pay 4x the amount stated on the promissory note. Is this correct?

Yes, I will ask Mark about when to add clauses 13 & 14 of ANZ contract example to the redraft notice and hope he will answer. I have asked him many questions about the promissory note process recently in the Q&A sessions and he has not answered all of my questions as he feels I am taking up too much time. I will have to try and shorten my questions where possible. I will post here if I find out.

[rtw711]

Actually, I was mistaken. The defaulting party/ies seems to have to pay 4x the amount stated on the promissory note, not 4x the amount of the debt.

[sseeto]

When you make the changes to the statement, you are changing the amount to be paid by adding extra $. That amount owing becomes the new amount that you agreed should be paid. This is within a contract that you have changed the statement into. So you and they need to keep to the contract. Your name as well as theirs is listed in the area that mentions if any of these parties default, the amount to be paid is 4 x the amount of whatever is the new amount owing.

• This reply was modified 1 year, 8 months ago by  sseeto.

[rtw711]

Yes, agree. Thanks for the clarification.

[sseeto]

Watch and rewatch the videos to understand them. Pay for the module paperwork, because going through the videos with the paperwork in front of you makes a big difference. The more modules you pay for the better you understand the whole process. There are a lot of questions in the Q & A from everyone and Mark is trying his best to get to everyone’s questions, so it’s best not to ask a question that has already been explained in the relevant module. I did find that after doing several modules that some things were still not covered in detail, regarding the promissory note and the $1.05 BOE process and Certificate of Protest, but I appreciate that Mark’s modules are already so long in duration, and so I accept that the video teaching had to end there. Some things makes sense after you actually live through the process. Re point 13 & 14 not being on the CBA redraft notice, I’m guessing that these are just templates that you can add to it whatever else you want. It is better to have more on than not. If 13 & 14 are just as beneficial on the CBA notice as they are on the ANZ notice, then it would have been good to have them on. It’s possible that the CBA example could have been an earlier one and the ANZ one could be an updated redraft notice that Mark uses now, but he still includes the CBA example so that you can see differences in the different bank statement styles and yet the process is still the same. Adding point 13 & 14 is a benefit to you. Leaving it off will still work fine, but the more that protects you the better. I did the BOE $1.05 process for Council Rates Notice. I did not get/understand the whole process from purchasing one or two modules. I had to purchase a lot of modules to get/understand the process and how much liberty I had with exercising my authority within these “contracts”. Even with the Default & Liability Clause & Notice, there are a couple of versions of this document. You would just pick the one you’re comfortable with. Some people will choose not to use it because the module never mentioned it at all, others will use the basic version because their module had the basic version in it, others will use the type like in the ANZ version.

[rtw711]

I agree with everything you have said and very much appreciate your assistance with helping me understand the process. I have purchased a number of modules previously, including all the different methods of payment modules, and looking at the BOE module documents has helped increase my understanding of the promissory note process. I have watched and rewatched relevant parts of the videos which has been helpful. Unfortunately, many of my questions have been quite specific in nature and not answered in Mark’s videos which as you noted, not everything is covered in them due to time constraints.

[morag-janet-of-the-hill-family]

There’s a Q and A on tomorrow night…https://solutionsempowerment.org/event/general-qa-october-18/

solutionsempowerment.org

Access Restricted (Not an Active Member) – SolutionsEmpowerment.org

Access Restricted (Not an Active Member) – SolutionsEmpowerment.org

[rtw711]

Also, I sort of understand what it means to indorse something. However, could you please explain in layman terms your understanding of “Accepted As Indorsed” which you stamp (or write) in red on each page of D & LC & N and the contract.

[sseeto]

To be honest, I don’t know the meaning, or why those particular words are chosen. I would love for Mark to explain the whole meaning of “indorse”, “indorsements”, “accepted as indorsed” and much more, but he has so much on his plate and must prioritise what he spends his time on. I can say from my experience, without one on one help with Mark… just trying to make sense of it all on my own, is that, I didn’t go at the Council as hard as Mark does. I toned down his documents to suit my timid character, being my first time etc, and they responded by taking action against me which esculated to court. (I won’t go into those details). When the new rates notice came in the mail and I had a second opportunity to apply the BOE process, by then I had watched and learned much more modules and understood better because I had been through the process once already. I used all that Mark taught in combination boldly and I haven’t heard anything yet back from the Council for 3 weeks now.

[rtw711]

Thanks for your reply.

Good luck with your council rates matter which is on my to do list. I think when I tackle this, if they went ahead and filed an application in the Court, I would be trying to get a meeting with them asap and ask them setup questions. Hopefully, this would get the parasites committing treason to back off.

[morag-janet-of-the-hill-family]

A…Black’s Law Dictionary 9 Edition…

Acceptance =

acceptance, n. (16c) 1. An offeree’s assent, either by

express act or by implication from conduct, to the

terms of an offer in a manner authorized or requested

by the offeror, so that a binding contract is formed.• If

an acceptance modifies the terms or adds new ones, it

generally operates as a counteroffer. Cf. OFFER. [Cases:

Contracts (::=>22(1).]

Indorse = indorse, vb. (16c) To sign (a negotiable instrument), usu.

on the back. either to accept responsibility for paying

an obligation memorialized by the instrument or to

make the instrument payable to someone other than

the payee. Also spelled endorse.

This is from Bills of exchange Consumer credit law in Australia (I can attache the full document if you want it)

(h) Payable on Demand, or a Fixed or Determinable Future Date: When a bill is payable on demand, the holder of the bill is entitled to present it at anytime for payment. Under s 15, a bill is payable on

demand if:

 it is expressed to be payable on demand;

 expressed payable at sight;

 expressed payable on presentation;

 no time for payment expressed; or

 where a bill is accepted or indorsed when it is overdue.

Although the transferee acquires the right to have the bill

indorsed, until it is indorsed the holder is not a holder in due course and takes the bill subject to

equities.

For an indorsement to be valid it must comply with certain conditions – see s 37. At the very least the indorser (the one who indorses the bill) must sign the bill, usually on the back of it. Such an

indorsement is regarded as an indorsement in blank and the bill becomes a bearer bill – s 39. Apart

from a blank indorsement, there are a number of other recognised types of indorsement:

 Special indorsement – Indicates a specific person to whom or to whose order the bill is to be

paid to see s 39. For example, ‘pay John Bloggs or order’ is a special indorsement and would

require John’s signature before it may be transferred.

 Restrictive indorsement – Prohibits further negotiation of the bill, or which expresses that it is

a mere authority to deal with the bill as thereby directed – s 40. For example, ‘pay John

Bloggs only’ or ‘pay X out of the account of Y’ is a restrictive indorsement. All subsequent

transferees will have notice of the restriction and thus will not be able to assume the status of

the holder in due course.

5. Payment:

Generally, the holder of a bill is required to present it for payment before the obligation to pay arises.

Failure to do so relieves the drawer and indorsers from liability – s 50(1). However, the acceptor

remains liable on the bill – s 57(1). Presentment must be in accordance with the legal rules set out in s 50(2). For example, where the bill is not payable on demand, then it must be presented on the due

date. Where it is payable on demand, the bill must be presented for payment within a reasonable time after its issue to make the drawer and indorser liable. What is ‘reasonable’ depends on the nature of the bill, the usage of the trade, and the facts of the case.

Section 90 states that a promissory note is inchoate and incomplete until it has been delivered to the

payee or bearer. This is because it is an empty promise until completed by delivery. Similarly, a note payable to the maker’s order is not a note within the meaning of the B[O]EA until the maker has indorsed it. Before that the maker has done nothing but promise to pay herself. But when the note had been indorsed, the benefit of the promise to pay is negotiated to a third party. How a note is negotiated depends on whether it is made payable to order or bearer – see ss 36 and 37.

Where a note payable on demand has been indorsed it must be presented for payment within a reasonable time of the indorsement. Otherwise, the indorser is discharged – s 92(1)

[rtw711]

Thanks for your reply. This is very helpful.

[rtw711]

Also, in paragraph 7 of D & LC & N, it states “Any demand or notice served by registered post shall beyond dispute be deemed to have been served two business days after the date of posting, irrespective of whether the demand or notice is received by the Defaulter“.

Given Australia Post don’t deliver everyday anymore, shouldn’t this be changed to 3 days, even more if mailing interstate, possibly allowing up to 5 days for delivery?

[morag-janet-of-the-hill-family]

Your question is substantially related to the English contract case of Adams v. Lindsell (1818) — more famously known as the “postal acceptance rule.”

Let’s look at the offer vs. acceptance part of the picture first:—

When the offeror sends out the offer to the offeree, the offer is deemed to have been made to the offeree the moment the letter was dropped into the postbox, even though it physically is on its way through the postal system.

From the other direction, the offeree’s acceptance is deemed to have been made to the offeror the moment that was dropped into the postbox, even though it physically is on its way through the postal system.

The above principle will hold true in most practical cases. The offer letter from them will be deemed to be part of the recipient’s correspondence ‘property’ (though ‘property’ isn’t the right terminology to use).

Since you yourself send out the counter offer by letter, I can’t see how you’ll need to have a copy of it from the recipient. You should already have a file copy of your own counter offers before mailing them out.

The rules of
contracts by post (postal rules) include the following: An [counter] offer made by
post/letter is not effective until received by the offeree. Acceptance is effective as soon as it is posted. For revocation to be effective, it must be received by the offeree before they post their letter of acceptance. [In other words if they wish to revoke it then they need to accept it into their hands to enable them to do this otherwise it is deemed accepted. So giving them 2 days before you deem it accepted is fine as it is giving ample leeway].

[rtw711]

Thanks for your detailed reply. Very helpful.

So, to summarise what you have posted, for mail service, an individual or entity is deemed to have been served 2 days after mailing the documents irrespective of how long it takes to deliver the documents as opposed to physical service where the individual or entity receives the documents immediately.

[morag-janet-of-the-hill-family]

Yes. You would still keep a record of them receiving it with a receipt from the deliverers for your records.