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Wells Fargo Letter Sent out with EFT Payment - HISAdvocates.org

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Wells Fargo Letter Sent out with EFT Payment - HISAdvocates.org Powered By Docstoc
					                                         Byron Gashler
                                    14876 Washington Rd. # 23
                                    West Burlington, Iowa 52655
May 29, 2013

Wells Fargo Home Mortgage
Attn: Payoff Dept. T7416-025
4101 Wiseman Blvd. Bldg. 203
San Antonio, TX 78251

Re: Account # 0010431575

Dear Sir:

ACCORD AND SATISFACTION APPLIES
I have a bonified dispute with Wells Fargo since I assert this debt has already been paid off by a
previous EFT # 1417 that has been accepted and defaced with bank endorsements and
returned to me: UCC 3-3604. Reads: (a) A person entitled to enforce an instrument, with or
without consideration may discharge the obligation of a party to pay the instrument (i) by an
intentional voluntary act, such as surrender of the instrument to the party. Destruction, mutilation
or cancellation of the instrument, cancellation of striking out of the party's signature, or the
ADDITION OF WORDS to the instrument indicating discharge. “ Wells Fargo accepted EFT
#1417 and negotiated this instrument when they put their endorsement on this instrument and
surrendered the instrument to me. (UCC 3-203 (C). In a good faith effort to settle this bonified
dispute, I am again, paying off the debt a second time and I assert the accord and satisfaction
laws as more proof of discharge of the debt by tendering EFT # 1383. See UCC 3 -311

INSTRUMENT CANNOT BOUNCE
This payment order, EFT # 1383 are instructions for a “reverse wire” or “payment order” for
Wells Fargo to put through the fed bank wire system. As mentioned earlier, this payment order
by law is considered “certified funds” as the payment order CANNOT BOUNCE: This link
explains what a reverese wire is: http://tinyurl.com/btmkrnp          “A reverse wire is a B-to-B
transaction in which the bank account holder authorizes another party, such as a vendor, to
withdraw funds from their account via a wire transfer. It is called a reverse wire because it is
initiated by the recipient of the funds, rather than the sender. This is in real time, like a wire, so
it will not bounce, whereas an ACH debit or check can bounce. They are also known as
drawdown requests, drawdown wires, or verse wire requests. The benefit to the funds recipient
is that the transfer is secure, the benefit to the payor is that once they have authorized their
bank in writing to respond to future drawdown requests, no work is required on the payor’s part
to execute a transfer.

AFFIDAVIT OF EFT TENDERED RELEASES BANK’S INTEREST
Utah Law: 70A-1a-306. Waiver or renunciation of claim or right after breach - A Claim or right
arising out of an alleged breach may discharge in whole or in part without consideration by
agreement of the aggrieved party in an authenticated record.

CERTIFIED FUNDS CONSTITUTE FINAL PAYMENT & DISCHARGE
This instrument or payment order is considered certified funds by law and hence must be
accepted. Read expert, Benjamin Geva on the subject: http://tinyurl.com/97srktd p.660-661:
“Discharge under English common law views the credit transfer as designed “to transfer an
amount standing to the credit of [the originator] . . to the credit of [the beneficiary’s] account.”
Royal Prods. v. Midland Bank, (1981) 2 Lloyd’s Rep. 194, 198 (Q.B.D.).

Such a transfer is carried out with the view of conferring on the beneficiary “the unconditional
right to the immediate use of the funds transferred.” The Brimnes,Tenax Steamship Co. Ltd.
v. The Brimnes (Owners), (1973) 1 All E.R. 769, 782 (Q.B.D.).

 The transfer constitutes payment made to the beneficiary at the beneficiary’s bank in the same
way as “handing coins or banknotes” to the beneficiary’s bank for the beneficiary would
constitute payment to the beneficiary. Mardorf Peach & Co. v. Attica Sea Carriers Corp. of
Liberia (The Laconia), (1976) 2 All E.R. 249, 257 (appeal taken from Q.B.D.), rev’d, (1977) 1 All
E.R. 545 (H.L.) explaining that nowdays financial obligations are not normally discharged by
handling over coins or bank notes.

It is thus the “unfettered and unrestricted”1 right to the use of the funds, effectively arising upon
what is referred to in this article as payment finality, that discharge the debt paid by credit
transfer as the equivalent of the deposit of cash to the account. 1 The expression is taken from
A/S Awilco v. Fulvia S.P.A. di Navigazione (The Chikuma) (1981) 1 Lloyd’s Rep. 371, 375
(H.L.).

Reverse wires are very fast (same day, often near real-time) and final (non-reversible). See:
http://www.quora.com/Wire-Transfers/Can-wire-transfers-be-reversed

Page 673 Article 209 reads: “When the credit transfer has been made in payment of a debt
owed by the originator to the receiver, unless otherwise agreed between them, the debt is
discharged when the payment transaction is completed.”

Discharge is to the extent of the payment that completed the payment’s transaction, and
payment is irreversible and final.

LAWFUL REMEDY
We the People were made private bankers according to the law with the authority to issue notes
to discharge lawful debts. This must remain in effect until lawful money and the property is
returned to We the People without any encumbrances.

I’m following my remedy to adjust and set off debt, under authority of Public Law 97-280 and
P.L. 93-224, Title 12 USC 411, 412, House Joint Resolution 192, Public Law 73-10, UCC
3104(c), Spencer v. Sterling Bank, 63 Cal Ap. 4th 1055 (1998), Guaranty Trust Co. Of NY v.
Henwood et al, (1939) and 307 U.S. 247 (FN3), the Within Negotiable Instruments, Vol. III
(including 2006 Supplement) on the Undersigned's UCC Contract Trust Account.

HJR 192 reads: Every obligation heretofore or hereafter incurred, whether or not any such
provision is contained therein or made with respect thereto, shall be discharged upon payment,
dollar for dollar, in any coin or currency which at the time of payment is legal tender for public
and private debts.” The entire taxing and monetary systems are hereby placed under the
U.C.C." (Uniform Commercial Code) - The Federal Tax Lien Act of 1966. Such action is further
confirmed in USC Title XII, Title XXVIII, Sec.1641, 3002 and the Foreign Sovereign Immunity
Act. In fact, the DOD, GSA, and NASA are mandated to use EFT as payment on Federal
contracts due to Public Law 104-134: http://www.fms.treas.gov/eft/regulations/fareft.txt Also 15
USC Sections 7001-7006 Uniform Electronic Transfer and Signature Act justifies the use of
EFT’s: http://tinyurl.com/94j3ohp and UCC 3-501 as proof that negotiable instruments such as
an EFT are acceptable and lawful payments.

12 USC 95a (2) Any payment, conveyance, transfer, assignment, or delivery of property or
interest therein, made to or for the account of the United States, or as otherwise directed,
pursuant to this section or any rule, regulation, instruction, or direction issued hereunder shall to
the extent thereof be a full acquittance and discharge for all purposes of the obligation of the
person making the same; and no person shall be held liable in any court for or in respect to
anything done or omitted in good faith in connection with the administration of, or in pursuance of
and in reliance on, this section, or any rule, regulation, instruction, or direction issued hereunder.
(3) As used in this subdivision the term “United States” means the United States and any place subject to
the jurisdiction thereof;

PURPOSE OF CLOSED ACCOUNT
The Court and Black’s Law 3rd Edition has defined the purpose of a “closed account”: “An
account to which no further additions can be made on either side, but which remains still open
for adjustment and set off which distinguishes it from an account stated. Bass v. Bass 8 Pick.
(Mass.) 1w87;Volkening v. De Graaf, 81 N.Y. 268; Mandeville v Wilson, 5 Cranch 15, 3 L. Ed.
23.

PAYMENT AND DISCHARGE THE FOLLOWING DAY
The Expedited Funds Availability Act and its accompanying regulations require banks to make
available to an account holder funds received by wire transfer no later than the next business
day following the business day on which the transfer was received.  12 C.F.R. § 229.10(b).
EFT’S must be accepted timely according to Utah State Law UCC 490: 4-302: As long as the
beneficiary's banks has not timely rejected the payment order, acceptance under section
4A209(b)(3) is at the opening of the next funds transfer business day. Wells Fargo Bank only
has two choices, pay the item or return the item timely. Paragraph 15 found here:
http://tinyurl.com/8m4danl reads: “A payor bank must pay or return any item or send notice
of dishonor by it’s midnight deadline (midnight on it’s next banking day following the banking day
on which it receives the relevant item or notice).” Most bankers are familiar with this
requirement, but some do not realize that this strict deadline applies even when the
check/instrument presented for payment is a counterfeit, or is drawn on a closed account. If
an item is presented to a bank for payment, the bank must act expeditiously if the bank intends
to return it unpaid. Otherwise, the bank may lose the legal right to return the item.

CONDITIONS THAT BECOME ACCEPTANCE BY BANK
If any one of these conditions exist, my EFT tender of payment is discharged by law as EFT
instruments are considered accepted, final and irreversible (UCC 4-229 36(d) & (UCC 4A-406).

    (1) Wells Fargo accepts my EFT by not returning the EFT instrument to me: UCC 3-3604
       UCC 3 – 501 (2)

    (2) Wells Fargo acknowledges receipt of the payment order (UCC 4A-209 (b)(1)

    (3) Wells Fargo credits my account UCC 4A-209 (b) (2)

    (4) I prove that Wells Fargo received the funds such as the account was zeroed out.
       (Eyles vs. Ellis) UCC 4A-209 (b)(2)

    (5) Wells Fargo opens their next day of business with other EFT wire transaction business
        (UCC 4A-209 (b)(3)
   (6) Wells Fargo doesn’t return the item by certified mail by midnight the following banking
       day, citing any legal defects on the Instrument so I can correct them if any exist. (UCC
       3-504 (C) and UCC 3-501(3)

    (7) Wells Fargo without lawful cause refuses my instrument (UCC 3-3603 (b) reads: “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 the endorser or accommodation party having the right
of recourse with respect to the obligation which tender relates.” The courts have said: “A
tender of the proper amount due, even if rejected, extinguishes the lien and precludes
foreclosure” (See, e.g. Winnett v. Roberts, supra, 179 Cal App. 3d 909, 902,Lich tv v. Whitney,
supra, 80 Cal.App 2d 696, 701; see also Code Civ. Proc. SS 2074.) If Wells Fargo accepts my
instrument the debt is lawfully discharged. If Wells Fargo rejects my instrument the debt is
likewise discharged. Either way the debt is no longer owing under any conceivable condition,
meaning the mortgage must be reconveyed, the debt discharged, credit bureau reports adjusted
and changed for accuracy, and the foreclosure stopped.

CASE LAW PROVES PAYMENT
Electronic Funds Transfer instruments are governed by 4A of the Uniform Commercial Code
(UCC). When Wells Fargo Bank notified (Byron Gashler) of receipt of said payment order and
the subsequent crediting of his account on May 1, 2012, as evidenced by the stamp date on the
instrument, according to state law 70A-4A-209, 70A- 4A-404, and 70A- 4A-405, acceptance and
final payment have occurred, are irreversible and Wells Fargo Bank cannot avoid the clear legal
duty to pay the beneficiary (by crediting Byron Gashler’s account) without violating state law.
See FIRST SECURITY BANK OF NEW MEXICO, V. PAN AMERICAN BANK 215 F. 3d 1147
(10th Cir. 2000).

DISCRIMINATION OF TYPE OF PAYMENT FORBIDDEN
Utah Law: 70A-511 Tender of Payment by Buyer – Payment by check. (1) Unless otherwise
agreed, tender of payment is a condition to the seller’s duty to tender and complete any
delivery. (2) Tender of payment is sufficient when made by any means or in any manner
current in the ordinary course of business unless the seller demands payment in legal tender
and gives any extension of time reasonably necessary to procure it. UCC3-104(b) “Instrument”
means a negotiable instrument. Any negotiable instruments accepted by banks for tender of
payment as legal tender is not limited just to checks, cash or money orders. U.C.C. Section 1-
201(24) (Official Comment), notes that the definition of money is not limited to legal tender
under the U.C.C. and was also affirmed in a Federal US court of appeals which ruled on Title 31
USC 5118, and said as of October 27, 1977, legal tender for discharge of debt is no longer
required. In the case of Guaranty Trust company vs. Henwood, 307 U.S. 247 (1939), the court
affirmed since legal tender is not in circulation, and repayment of debt is against Public Policy,
since legal tender was not loaned [nor in circulation] they cannot demand payment in any
[particular] form of coin or currency or legal tender, and repayment for payment need
only be made in equivalent kind; a negotiable instrument. 31 U.S.C. 5118 was enacted to
remedy the specific evil of tying debt to any particular currency or requiring payment in a greater
number of dollars than promised. All commercial instruments such as promissory notes, credit
agreements, bills of exchange and checks are defined as legal tender, or money, by the statutes
such as 12 U.S.C. § 1813(l)(1), UCC §1-201(24), §3-104, §8-102(9), §§9-102(9), (11), (12)(B),
(49), (64). These statutes define a promissory note or security to be negotiable (sellable)
because it is a financial asset. This is necessary because contracts requiring lawful money are
illegal pursuant to Title 31 U.S.C. §5118(d) (2) and Public Law 97-258 (September 13, 1982).
Wells Fargo Bank must immediately recognize my bonified dispute by reading these statutes,
follow the law or admit financial damages caused to me by their willful and unlawful actions
against me, including their “theft by deception” by trying to illegally foreclose on my property as
the debt is already paid off and discharged.

Sincerely,

Byron Gashler

				
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