So you’ve received a summons to appear. Decision time, are you going to:
- Do nothing
- Seek Re-presentation
- Re-present yourself, or
- Be the Creditor and settle the matter?
- Do Nothing. This is usually fatal. You would probably have received a letter from the prosecutor stating you didn’t show for the first hearing and failure to show a 2nd time may mean your person will be brought before the court. Not a position you want to take when there are simpler and less painful options,
- Seek Re-Presentation. A public defender/lawyer/attorney will re-present the legal person which means your legal person is considered incapable of defending itself and has become a ward of the state until the matter is resolved. The re-presentative has allegiance to the BAR association and court before they do you or your person. This will probably cost $$$ and your counsel will advise on your options.
- Re-Present yourself. eg Pro-Se. Many defendants will use this method and either accept whatever they are told by the court or fight and argue. Some will be successful, in many instances the prosecution will drop the case if it’s deemed too expensive to run depending if the defendant has had some coaching, paperwork is in order and the arguments put forth are “difficult” for the prosecution to overcome. However, for higher value criminal matters – it’s game on.
- The Creditor. The Creditor does not re-present the person, but has a security interest in the person (the account) and is operating in the private to setoff any charges for any alleged offences that the person has committed. This will require a mindset change for most as it’s difficult for many to separate themselves from the name. The goal of the creditor is to resolve any outstanding matters, quickly, so valuable public resources are not wasted.
The focus here is as a Creditor to resolve the matter.
This is very key. Make sure your paperwork goes into the court file before the court case. You want your paperwork on top in the case file. Usually your public paperwork will be sent to the prosecutor with a copy to the court file. Your private process MUST NOT go into the court file – it’s private between you and the plaintiff and not for the public. More on these steps in a later post.
Setoff the Court Case. This is a private side remedy using option 4 above – The Creditor
Before going to court. Eg several weeks before the court hearing you will probably want to setoff the court case. The charging instrument is an asset – it has value. An Accommodation party will perform the private setoff to close the case.
Go into the registrars/clerks office and ask to see the file for case XXXXXXX as you wish to inspect the original charging instrument. It MUST be the original, not a copy. They will ask who you are, and you will be an Accommodation Party (read The Bill of Exchange ACT or UCC for additional details) here to privately setoff, settle and close the matter. You will need to handle the objections from the administration staff. You will need to learn some conditional acceptances for this – not difficult, but you must be firm and must not let anyone obstruct your remedy or obstruct justice. The key point here is: You are bringing in the remedy. Once the court case is setoff, the charges are no longer there for your person – they have been settled and closed.
You will need to get a copy of the original charging instrument front and back and have the administrative staff stamp both copies. They will not like to stamp the copy with the Accommodation Party’s signature, and they may argue. Conditionally accept their offers on proof of claim they are not obstructing justice etc.
The court will need to be given notice on the public side as well as the prosecution that the case has been setoff.
However, there is still the original matter that the plaintiff has brought into court. This needs to be settled as well.