As you engage with the opposite party in any matter on the private side eg under Common Law or Private International Commercial Law – take care to avoid the fundamental mistake of mixing jurisdictions as you write and execute your process. One cannot see the other. There are far too many “templates” and examples on the internet that mix the jurisdictions and the entire process is undermined as it is unclear who is actually writing – is it the man/woman or the legal person entity, it’s not clear. In this situation, a presumption will default to the jurisdiction of the public side eg under Statutes and hence it will be presumed that a legal person is the author, and a legal person has limited/no rights.
- Always use a 3rd party presenter and acceptor of records. This is the first mistake made by most. Your process must be a genuine record and therefore you need a second witness of the content of your process. If you don’t, it will be considered hearsay in a court. Your 3rd party presenter/acceptor will use registered mail with return receipt and issue a certificate when sending and receiving documents.
- Your address. Don’t use it, it’s not yours, it’s your person’s address. Use your 3rd party presenter/acceptor’s address. If you have to use your own address in your process use “care of”, “c/o” before your address eg: Bob Paul Jones c/o 123 Public Street, Public State, Non-Domestic. No need for Post/Zip codes, if you must use it, use square brackets eg . Non-Domestic indicates this is an international communication to a foreign jurisdiction.
- Most Banks and many companies require authorisation on an account before they are even allowed to respond to a 3rd party due to privacy laws. Therefore, in your process you may need to write and sign a separate letter as your legal person giving authority to the 3rd party presenter/acceptor to send/receive letters for the account. You will also need to list the Man/Woman (eg You) as an authority also, this would be worded as a: Secured Party Creditor or the Authorised Representative.
- Address communications to the CEO or the CFO who can legally bind the organisation and include “c/o”. eg ABC Bank, 123 Bank Street, c/o Chief Financial Officer, Jane Smith
- Mark your envelopes “Private” or “Private and Confidential” front and back
- Mark your letter in the header “This is a Private Communication between the Parties”
- You must bring in the law. Just like in court – there is no law, it must be brought it. Be clear on the law you are bringing in.
- Be clear that there are no statute protections or protections from the public franchise and a response will be under their full commercial liability under penalty of common law or penalty of private international commercial law
- Describe what will happen if they don’t respond, eg Respondent agrees to the following…….
- If your notice is more than 1-2 pages long, then it’s too long,
- Be precise and write in the negative eg. I Conditionally accept your offer on proof of claim that the original charging instrument has not been setoff, settled and closed, and….. (also see here)
- Sign and Seal your notice. A creditor will sign on the right hand side of the notice and use a seal or a right thumb print with red ink as a seal.
- Have two witnesses witness the signing of your notices/documents (don’t use your 3rd party presenter as a witness here)
The respondent will not respond to your notice. A second notice will be sent after 14 days, Notice of non-Performance, Opportunity to Cure, and then after another 14 days, Certificate of Agreement or something similar. After which, you have a completed private administrative process. If you get to this point and they still want to take you to court, have your 3rd party presenter send it to the magistrate/judge in chambers for private review.
Whilst this may seem like a lot to undertake and understand – it’s not. Remember this simple rule when under common law or private international commercial law, that you are considered foreign to the public side. It’s like another country, it’s non-domestic. This is also the very same process that is run administratively against your person on the public side to gain agreement – most fail to respond.
Will post some real examples that take into consideration of the above over the coming week or so. Note: it’s not about what you send them, it’s about your actions and how you resolve the matter.