Private administrative process (“PAP”) is a series of documents (usually 3 or 4) in affidavit form. That means they are signed in front of a notary public who verifies the identity of the signer. It’s also known as an Acknowledgment.
Your affidavits are sent from one private individual to another for the purpose of settling a dispute. If the matter is very serious, the affiant (the one who signs an affidavit; the sender) may want to have a ‘Jurat’ at the end of the document which means the contents of the document are sworn to, rather than the affiant just having his or her identity acknowledged.
A typical Acknowledgment may look like this:
New York State )
Kings County )
On this, the _____ day of ____________, 2013, before me a notary public, the undersigned officer, personally
appeared __________________________________, known to me (or satisfactorily proven) to be the wo/man whose name is subscribed to the within instrument, and acknowledged that s/he executed the same for the purposes therein contained.
In witness hereof, I hereunto set my hand and official seal.
but a jurat has this wording:
State of _____________________
Subscribed and sworn to (or affirmed) before me this ______ day of ____________, 2012, by (Name of whomever making the statements) who proved on the basis of proper identification, to be who s/he claimed to be.
Generally, a PAP would consist of an initial document which states what the dispute is about, the facts as the affiant sees them and what action the affiant would like the respondent to take in order to settle the dispute. The parties to a PAP can also be referred to as the declarant and respondent, libellant and libellee, or some other such terms. The respondent(s) — there can be more than one respondent — are supposed to answer the affiant in affidavit form as well. This is why it is best directed to a private individual even if the dispute is with a corporation. Someone there can take responsibility for the corporation’s actions by having his or her signature acknowledged on a reply so that affiant and respondent are at parity.
If there is no response, or if a response is made that is defective, meaning it did not answer the questions or address the statements made, then a Notice of Fault is sent, telling the respondent that the time given for answering has past but that s/he is being allowed more time as a courtesy. The time now given is usually 10 or 20 days but can be as little as 3 days depending upon circumstances. The respondent can also be notified of the consequences of not answering, which would be the action you intend to take if they don’t try to settle the dispute, or the amount they’ll owe.
The final document is the Notice of Default in which you can re-state all they’ve agreed to by their silence or defective response(s). After Default, billing can be done, usually at least 3 times, requesting payment for any damages due to the Affiant or requesting whatever performance needs to be carried out.
For greater effect, a notary public can be asked to witness the PAP which means that all documents in the process pass through the hands of the notary so a record can be made. At the end of the process, if no agreement or compromise between the parties was reached, the notary can then create a report of when documents were sent, how much time was given for the respondent to answer and whether or not there were any responses. This is called a Notice of Non-Response and carries more weight than if you or a friend acting as a witness write your own Non-Response. As an agent of the Secretary of State, the notary is a public official who acts in an arms-length, impartial manner.
If your process demanded payment of damages or some performance from the respondent, instead of having the notary issue the Notice of Non-Response after the Default, the notary could serve your bill to the respondent. That is generally done three times at least 10 days apart. After that is finished, then the Notice of Non-Response can be issued for a more complete process.
CERTIFICATE OF DISHONOR/DEFAULT (“COD”) METHOD:
There is one final step that can be taken, and that is a method which is sometimes called ‘Notary Protest’ which term refers back to the days of lawful money of substance (gold and silver) when notaries only protested dishonored payment instruments, like a bank refusing to pay out a check drawn on an account in its records. Being that there is no substance money and all credit is created from the people, all public acts are commercial — have monetary value — and so the COD method was developed.
The way the COD works is, after a process has completed, a copy of the documents used in the process is turned over to a notary with an affidavit describing the steps taken in the process and requesting the COD method be performed because of the lack of proper response (dishonor). Usually, the affidavit requesting the COD service isn’t necessary if the COD is being done by the same notary who witnessed the process and issued the Notice of Non-Response.
The notary then does his/her own process which consists of an initial Notice of Dishonor which explains to the respondent that the affiant requests that the documents used in the process be re-presented to give them another chance to resolve the issue. If there is no proper response after ten days, then the notary sends a Notice of Fault usually allowing an additional three days to answer. If no answer is forthcoming — and that can even be a request for more time in which to answer — then the notary issues a Certificate of Default if the respondent is a government agency or a Certificate of Dishonor for any other type of entity. The COD is also an administrative judgment since all aspects of due process of law have been met.
Many people like to have the Secretary of State apply an apostille to the COD. An apostille is meant to be used when a document will be used in a foreign jurisdiction where the laws and language are not the same as in the U.S. of A. It is also known as ‘Authentication of Documents’ which is a U.N. Convention under which the countries signing on to that Convention agree to honor each others documents as long as the documents bear an apostille (have been authenticated). As Americans became frustrated with their documents being ignored in the corporate courts and by other corporate entities, and also being aware that their private “flesh and blood” venue is foreign to the corporate venue, apostilles started being used as a way to gain greater recognition and acceptance for their documents. This strategy, however, is being met with increasing resistance, but we feel that the concern and frustration that resistance is causing is completely unnecessary.
Any document brought to the state office for an apostille must necessarily contain the signature of a man or woman that has been acknowledged. The reason an apostille supports a document’s authenticity is based upon an agent of the state having verified the signer’s, or affiant’s, identity. As long as that agent of the state — a notary public — is properly commissioned and in good standing, then it is accepted that the man or woman’s signature on the document is authentic and, therefore, the document is legitimate. I do hope the reader grasps what this means. It is the fact that a living man or woman issues the document for the purposes stated therein that gives it authority, NOT the paper with the fancy seal from the secretary of state. The paper with the fancy seal is only saying that your public servant has verified that the signature of the living being has not been forged.
If you are insistent on having a state certificate on your document, you can get a Notary Certification which is a document saying that the notary who acknowledged your signature is in good standing with the state.
HANDLING THE COD:
There are two ways that CODs can be used. It, together with the entire PAP, can be used as the basis of a Complaint for Declaratory Judgment which can be brought into court for an administrative review by an attorney or a judge. If the reviewing officer finds that the process was done correctly, that all parties received proper due process of law, then an order of Declaratory Judgment will be issued.
The other option is to create a lien based upon the PAP and the COD for filing in the Uniform Commercial Code office in the Respondent’s state. Usually that is in the Secretary of State’s office but a few states have it under the Dep’t of Finance or the District Court.
The lien needs to contain the proper elements with which we can help you, the cost depending upon the complexity of your matter. Once filed, the lien takes 90 days to ‘cure’, during which time it can be challenged. After the 90 days, it becomes an asset as an account receivable.