Due process is a key foundational construct under contact law and is a requirement in obtaining agreement with another party. Without reasonable due process an opposite party as well as an adjudicator may consider an agreement invalid.
If one is in the capacity as the Secured Party Creditor, a Man, a Authorised Representative, or a trustee from a private side trust, then this will usually require a Private side agreement with a CEO/CFO.
Some pre-requisites of due process:
- Is there some pre-existing relationship that entitles one party to engage with another?
- Which laws are you bringing in to the agreement?
- Who is the opposite party? eg undertake a title search on property to understand who is the title holder v’s loan servicer.
The engagement – The Administrative Process
- What paperwork will you be using and will the engagement be on the private side or public side? (eg man/creditor v’s person/debtor)
- The Administrative process aims to gain an agreement via a series of communications with the opposite party. This type of process is undertaken everyday by all kinds of people and organisations. This page provides an overview of the steps involved, however, there is little difference to the processes used to gain agreement on the public side that corporations/debt collections use today: My Bank Account or my Salary is being garnished
Generally speaking, it matters not what templates or paperwork you propose to use as long as it provides due process and follows basic considerations for an agreement. eg Sending a single notice to an opposite party, then believing there is agreement due to a non-response may be premature although it can technically be said that an agreement is in place. However, it is a creditor’s role to ensure there is no reasonable doubt on any agreements and to provide a party with plenty of opportunity to respond to an offer or counter-offer.
Templates. There are numerous templates, forms, examples etc across the internet that many are using to engage an opposite party. Whilst some may indicate success with such templates – understand precisely what was the “success” as many templates lack basic due process but appear to work. In many cases, an opposite party may forego an engagement if the return on investment of a proceeding is insufficient.
Become one with the process. Templates and paperwork are not necessarily the driving force to reach agreement. The process must be “owned” especially in more complex situations as one will undoubtedly need to clearly understand the process and be capable of contracting in real time in your court.
IMPORTANT: Using a 3rd Party Presenter/Acceptor of records to ensure your record is genuine (eg exception to the hearsay rule). A second witness must be part of your process to ensure genuineness of the record and to ensure one does not need to testify in ones own case. In fact, as a creditor, you, as an authority should never testify.
Summary of Communications – Private Side
There may be upto 3 Processes one must use in order to achieve a final judgement and claim. It depends on the complexity of the situation and what’s “at stake”. A “pristine” record of the agreement will be developed along the way consisting of Private agreements, 3rd party presenter/acceptor certificates of service of communications, Postal receipts, return receipts, Certificate of non-response/response, etc.
- Process A – A private process to resolve a matter with an opposite party
- Process B – A private court is held to hear the matter and to issue a Judgement. Process A agreement is brought into Process B.
- Process C – A public court hears the matter. An abstract of judgement from process B is brought into the court as a Foreign Judgement (eg Common Law) for enforcement.
At the completion of Process A, an agreement is formed, this agreement can be brought into a public court (Process C) and the presiding Magistrate/Judge be given mandatory judicial notice of the private record sent in by the 3rd Party presenter/or Notary into chambers for private review by the magistrate/judge.
Next, Process A.