A Sample Mailing Process

This is an example mailing process and is not “hard and fast” but there some fundamental aspects that one must be aware of. The use of an independent party to act as your presenter/acceptor and custodian of records is a critical function that needs to be employed. The presenter/acceptor and custodian of records can be a number of different people eg Person ‘A’ to present all Documents, Person ‘B’ to accept all responses and Person ‘C’ to be the records keeper. Typically, a single independent person will fulfil these roles who has nothing to do with the matter at hand and has an ability to:

  1. manage records
  2. have time on hand to perform the functions
  3. have certificates of services and non-response/non-performance witnessed by a JP or Notary along with the rest of the original documents

A mailing process must by default, be a genuine process with authenticated records, responses,  non-responses etc. If you were to undertake all these functions by yourself Here’s some potential problems one may face (I’ve included some commentary):

  1. The opposite party may claim that they didn’t receive your process.  Remedy – Use registered post with return receipt.
  2. The opposite party may claim that there was nothing in the envelope.  Remedy – Use a third party presenter who uses registered post with return receipt who will have their document witnessed.
  3. Your process is merely hearsay. Remedy – Contract with a 3rd party to be your 3rd party presenter/acceptor and custodian of records,  thus making your process an exception to the hearsay rule,  as it is now a business record.
  4. You cannot testify in your own case – your bias.  Remedy – same as in 3 above…. use a 3rd party as a 2nd witness who can testify in your case.
  5. You don’t have an authenticated record.  Remedy – Your 3rd party will authenticate the certificate of service and certificate of non-response/non-performance and the rest of the documents with a JP or Notary.

Combining the above 5 points leaves only one logical outcome – a 3rd party presenter using registered mail with return receipt will overcome the above issues. This could save you from running an entire process only to have the recipient claim they never received anything or your process be considered hearsay.

The below graphic depicts the general flow of a process, the responses a recipient of an offer will initiate, the roles of the 3rd party in order to achieve a specific outcome, note: click on graphic to zoom in:

mailing-process2

Certificate of Service. The next graphic below outlines steps the 3rd party will undertake when issuing a Certificate of Service. Some additional notes to consider:

  1. 3rd Party keeps all originals, the only exception to this is if an original instrument is tendered to the respondent as a tender of payment. In this case, the original instrument must go along with copies of the rest of the documents to the respondent and the Certificate of Service should indicate that.
  2. The advantage with a 3rd party is they can have your documents certified by a Justice of the Peace or Notary. For Private processes, in some jurisdictions a Notary will move your private record into the public by placing your PERSON’s public ID number onto your record (eg in Australia). Therefore, a 3rd party acting as a gateway to the public side may have your original private record notarised under the certificate of service document when signing in front of the notary.

 

Mailing Process 1a-v3Certificate of Non-response/non-performance. The second part of the graphic above outlines steps the 3rd party will undertake when issuing a Certificate of Non-response/non-performance. Some additional notes to consider:

  1. The 3rd party takes the original step 1 documents and the signed certificate of service together with a unsigned Certificate of non-Response/non-Performance to a JP/Notary to have it signed and witnessed.

Repeat Certificate of Service and Certificate of Non-response/non-performance steps as required to complete the entire 3 Step process

It should be noted that a Justice of the Peace (JP) can witness public process documents, but for Private Documents a Notary should be used (esp in the United States) as a private process is from a foreign jurisdiction.

At the end of Step 3, the 3rd Party presenter issues a “Certificate of Administrative Judgement” as a record to verify the respondent has not responded and/or not performed

mailing-process5

Step 3.1 is a optional Cease and Desist Enforcement Process to have the respondent cease any existing action against your PERSON. A Notice to Cease and Desist with all copies of the record is sent to the Respondent’s CFO or CEO and a demand to Cease and Desist is made. A failure of the plaintiff to stop all action will lead to you opening a court case in order to have the record between the parties enforced. [more info tba]

Step 4 is a optional Court Process that is initiated by the respondent (eg they are the Plaintiff, YOU are the defendant). As the defendant, having successfully finished the 3 Step process to gain agreement,  are considered an “aggrieved party defendant”. An aggrieved party is one that is:

  • “An individual who is entitled to commence a lawsuit against another because his or her legal rights have been violated.“; or
  • “A person whose financial interest is directly affected by a decree, judgment, or statute is also considered an aggrieved party entitled to bring an action challenging the legality of the decree, judgment, or statute.”

In summary, the opposite party (Plaintiff in this case) is bringing an action against a party in contravention of an existing agreement between the parties where the matter has been previously settled. The steps in this process are:

  • The 3rd Party will be tasked to send into the court file the original records showing agreement between the parties – called a “Presentment of Evidence”, including the “Certificate of Administrative Judgement” from Step 3 ; and
  • The defendant (eg You in this case), will send into the court file and cc the Plaintiff a Conditional Acceptance of hearing and a copy of the “Presentment of Evidence” from the 3rd party (all via the 3rd party).

mailing-process3

Overview of the entire Process Steps 1 – 4

mailing-process1

Examples.

An example Certificate of Service for a public side process that would be witnessed by a JP:

CERTIFICATE OF SERVICE

It is hereby certified, that on the date noted below, the undersigned Third Party Presenter/Acceptor and custodian of records, hereinafter “Undersigned”, mailed to:

Orange City Council

PO Box 35, 135-137 Byng Street, Orange, NSW 2800

hereinafter, “Recipient,” copies of the original documents and sundry papers regarding BOB JONES, Ref: 20140101BJ, as follows:

a) copy NOTICE OF CONDITIONAL ACCEPTANCE (two leafs) dated Nunc Pro Tunc to 3 January 2014, by BOB JONES, original on file with Third Party Presenter/Acceptor and custodian of records; and 

b) copy AFFIDAVIT OF SPECIFIC NEGATIVE AVERMENT (two leafs) dated 10 January 2014, by BOB JONES, original on file with Third Party Presenter/Acceptor and custodian of records; and

c) original Speeding Infringement in it’s original envelope dated 1 January 2014 by Orange City Council marked “CONDITIONALLY ACCEPTED”; and

d) Unsigned Courtesy copy of Certificate of Service (signed original will be on file)

by Registered Post 1111111 with Return Receipt Attached by placing same in a postpaid envelope properly addressed to Recipient at the said address and depositing same at an official depository under the exclusive face and custody of the Australia Post Service within the STATE of New South Wales.

Original documents on File with Undersigned.

____________________________________ Date: 11 January 2014

Sarah Brown

Third Party Presenter/Acceptor and Custodian of Records

1 Main Street, Orange, NSW

before me

_________________________________

signature of Authorised Witness

Example. An example Certificate of non-response/non-performance for a public side process that would be witnessed by a JP:

CERTIFICATE OF NON-RESPONSE/NON-PERFORMANCE

It is hereby certified, that, the Person signing below, Third Party Presenter/Acceptor and Custodian of Records, hereinafter “Undersigned”, at the request of BOB JONES (Claimant) in care of 51 Main Street, Orange, NSW, did duly present on 11 January 2014 to Orange City Council at PO Box 35, 135-137 Byng Street, Orange, NSW 2800 via Registered Post 1111111 the following documents:

a) copy NOTICE OF CONDITIONAL ACCEPTANCE dated Nunc Pro Tunc to 3 January 2014, by BOB JONES; and

b) copy AFFIDAVIT OF SPECIFIC NEGATIVE AVERMENT dated 10 January 2014, by BOB JONES; and

c) original Speeding Infringement in it’s original envelope dated 1 January 2014 by Orange City Council marked “CONDITIONALLY ACCEPTED”; and

d) Unsigned Courtesy copy of Certificate of Service

copies attached herein, requesting Point-by-Point response via Affidavit, the time limit having elapsed for a timely response and/or performance thereto.

DEFAULT

Whereupon, the Undersigned signing below, for the reason dishonour by non-response/non-performance, does publicly and solemnly certify the dishonour as against all parties it may concern by reason of non-response/non-performance thereof and stipulations therein.

Original documents on File with Undersigned.

____________________________________ Date: 25 January 2014

Sarah Brown

Third Party Presenter/Acceptor and Custodian of Records

1 Main Street, Orange, NSW

before me

______________________________

Signature of Authorised Witness

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