[CLC-Discussion] Contractor Check "Seized" by CBP

[Fred Barnes]

Michael, stop showing off!


Frederick C. Barnes, P.A
500 N. Maitland Ave., Suite 305
Maitland, FL 32751
(407) 865-9200
fcbarneslaw.com

-----Original Message-----
From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Gibbons,
Michael
Sent: Wednesday, June 04, 2014 5:31 PM
To: 'CHernicz at Herniczlegal.com'; clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Contractor Check "Seized" by CBP

      The check is a negotiable instrument and liability of the maker of the
check is governed by the UCC.  The stop payment order only extends between
your client and its bank and obligates the bank not to pay the instrument
against which the stopped payment order has been issued.  However, the stop
payment transaction doesn't serve to insulate the maker of the check from
liability to a third party who is a holder in due course.  Under Fla. Stat.
s. 673.3021(3)(a), a party who takes an instrument by "legal process"
(presumably US Customs seizure) is not a Holder in Due Course UNLESS their
predecessor in interest was a Holder in Due Course.  Although the original
payee fraudulently obtained the second instrument issued by your client,  it
would appear that the instrument or check at issue was obtained originally
by the payee in good faith for value and thus the payee was likely a Holder
in Due Course at the time of the Customs seizure.

      Just some thoughts but I'm a construction lawyer so I can't warrant
the accuracy of this analysis.

    

Michael R. Gibbons
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons at lowndes-law.com
website: http://www.lowndes-law.com

        

-----Original Message-----
From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Charles
B. Hernicz, Esq
Sent: Wednesday, June 04, 2014 4:49 PM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] Contractor Check "Seized" by CBP

OK, I'm not too proud to admit that this is the first time in nearly 30
years of practice that this issue has hit my desk (such a protected
existence I've led).  My GC client issued payment to a sub for work
performed for $9,994 on April 4, 2014.  A few weeks letter, the sub called
and said he had lost the check and asked for a new check to be issued.  The
GC checked its bank records, the check had not been paid, so they put a pay
hold on that check and reissued the check to the sub on May 5, 2014
(annotating on the check that it was a replacement for the lost check).
Yesterday the GC receives a letter dated June 2 from the US Customs and
Border Protection saying that on April 5, it seized the check for $9,994 to
the sub and the check is subject to forfeiture for unlicensed money
transmitting.  The letter has a laundry list of options: Petition, offer in
compromise, abandon, court action, release on payment, take no action.  That
check was cancelled IAW law and is now worthless, right?  Can anyone help??
Much appreciated.

Chuck

Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar           
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz at HerniczLegal.com

 


_______________________________________________
CLC-Discussion mailing list
CLC-Discussion at lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussion

This email message has been delivered safely and archived online by
Mimecast.  For more information please visit http://www.mimecast.com



_______________________________________________
CLC-Discussion mailing list
CLC-Discussion at lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussion