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Posted by Robert/FL on 11/12/09 11:51am
*** Not intended to be interpreted as legal advice. I am not an attorney licensed to practice law in any state and may not give legal advice or accept fees for legal advice. The below information is for purely informational/research use only. Any questions should be directed to legal counsel***
WHAT A PROTEST IS
The only legitimate use of a protest is to have evidence that a negotiable instrument was presented to the proper person or authority for payment and that payment was refused. When payment on a check or promissory note is refused, this is called dishonor. A protest is simply a certificate that dishonor has occurred.
WHAT A PROTEST IS NOT
Many tax evaders and anti-government groups believe that they can use protests as way to get out of paying a debt, avoid taxes, void their social security number or birth certificate, and other actions. The UCC defines negotiable instruments as a "promise to pay an amount of money", such as a check/draft or promissory note. What these anti-government groups don’t understand is that protests are only used for negotiable instruments, not general correspondence. Negotiable instruments do NOT include letters or demands.
For example, the IRS will send someone a notice stating that they owe $500,000 in taxes. The person sends a letter to the IRS demanding that they provide records stating exactly how they came to that amount. When the IRS ignores the letter, the person will try to secure a notary protest saying that the IRS refused to give information, or refused to "perform", and therefore dishonored the "transaction". However, the use of notary protests is not to protest refusal of information or refusal of "performance". It is only used to protest refusal of payment. Notaries should refuse to get involved with any sort of protest involving tax or foreclosure evasion.
THE PROCESS OF PROTESTING
The process of protesting a negotiable instrument begins with the drafting of that instrument. In most cases, this instrument is either a bank draft (i.e., a check) or a promissory note. In either case, one person has promised to pay another person a certain amount of money. In the following example, we will use a check, as this is the most common form of negotiable instrument. With a check, the drawer of the check (the signer of the check) gives the check to the holder (the person being paid), and the holder takes that check to his or her bank to deposit or cash the check. If the check is legitimate, the bank will process it and credit the funds to the drawee’s account. When the drawee presents the check to the bank for payment, this is called presentment.
Presentment may be done by the drawee of the check or any other person. It does not have to be done by the notary, and presentment in and of itself is not a notarial act. In the “old days”, notaries were usually the ones to perform the presentment, but it is certainly not required. However, it doesn’t hurt either, because when you, the notary, present the check, you have personal knowledge of the facts which means that you will be able to execute the protest with more reasonable certainty.
When the holder makes presentment of the check, they will endorse the reverse of the check, thus making it payable to the bank where the check is being deposited or cashed. The date that the check is deposited is considered the day that the instrument was presented. The bank then subsequently presents it to the bank of the drawer. The drawer’s bank (the bank stated on the face of the check) is called the “drawee”. When the drawer’s bank (i.e., the drawee) sees that there is insufficient funds in the drawer’s account, the bank will stamp the check with “NSF”, indicating “No Sufficient Funds”, and the instrument is therefore dishonored. Dishonor occurs when a bank refuses to honor a check.
A check stamped with “NSF” is almost always acceptable as proof that the check was refused. However, if the drawer wants additional documentation to that effect, or, if the check was foreign and the “NSF” stamp may not be sufficient for use overseas, the drawer can obtain a protest from a notary.
A protest is simply a certificate of dishonor given under the hand and seal of a Notary Public. The protest may be drafted by the notary upon information satisfactory to him or her. In most cases, a notary who is presented with a check stamped “NSF” will accept the stamped check as sufficient evidence that the check was, in fact, presented to the bank and that payment was refused. However, it is entirely in the notary’s discretion whether or not the evidence presented is satisfactory. If the notary himself performed the presentment, he will be entirely sure that the statements contained in his protest are true and correct. But as stated above, the notary is not required to make the actual presentment, but the notary should have reasonable evidence that the check was presented and dishonored. If the notary executes a false protest because he was not satisfied as to the evidence presented, the notary may be held liable.
In most states, the only statutory requirements for drafting protests are taken directly from the Uniform Commercial Code, which requires that protests include the following information:
1. The protest must identify the instrument; i.e. it must either include either a photocopy of the check, or an exact transcription of the check, with all information on the face and reverse of the check, including endorsements. It is easiest to simply photocopy both sides of the check onto a legal size page and draft your protest on that same page.
2. The protest must certify that presentment was made.
3. The protest must certify that the instrument was dishonored by nonacceptance or nonpayment.
4. The protest may certify that notice of the protest was furnished to all parties involved. After drafting the protest, the notary should draft a notice of that protest and send copies to the drawer and holder by certified mail. The notice should include the same information as the protest.
Quite simply, this is all a protest is. It’s a document certifying that a negotiable instrument was presented for payment and payment was refused.
The Oregon Secretary of State provides a simple example:
John Jones (drawer) writes a check from his account at Wells Fargo (drawee) to pay for a refrigerator he bought at Sears (holder). Sears deposits the check at its bank, Citicorp, which presents it to Wells Fargo for payment. However, Wells Fargo, noting that John Jones is overdrawn, denies payment of the check (known as dishonor). Sears eventually gets the NSF check back and tries to get John to pay up. If John doesn't make good on the check, then Sears (or Citicorp on behalf of Sears) can request a notary public at Wells Fargo to protest the dishonored check. The notary attaches a certificate of protest to the NSF check (notice of dishonor) and sends it to Sears (as protester) and another original to John Jones. Sears presents the protest with the dishonored check to civil court and takes action against John Jones.
Promissory notes will even more rarely require protests. Most promissory notes contain language that if the signer of the note fails to make timely payments and defaults under the terms of the note, that the holder of the note can demand all remaining payment in full. If the signer refuses to pay it, the holder can obtain a protest to certify that refusal. In this case, the process is the same as with a check, except the “bank” in this instance is the signer of the note, and the “endorser” of the check is the holder of the note. In this case, presentment should personally be made by the notary so that the notary has personal knowledge of the refusal.
Protests are authorized notarial duties in: Alabama, Arkansas, California, Colorado, District of Columbia, Delaware, Florida, Georgia, Hawaii, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Maryland, Maine, Minesotta, Mississippi, North Carolina, Nebraska, New Hampshire, New Jersey, Nevada, New York, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Washington and Wisconsin. Many of these states do not have protests listed under their notary statutes, but instead place them under the "Uniform Commercial Code" statutes. In most states, the statute regarding protests is:
A protest is a certificate of dishonor made by a United States consul, vice consul, or a notary public or other person authorized to administer oaths by law of the place where dishonor occurs. It may be made upon information satisfactory to that person. The protest must identify the instrument and certify that presentment has been made, or, if not made, the reason why it was not made, and that the instrument has been dishonored by nonacceptance or nonpayment. The protest may also certify that notice of dishonor has been given to some or all parties.