Affidavit completion and witnesses

Fight Back Against Debt Collection Forums Document Preparation Affidavit completion and witnesses

This topic contains 11 replies, has 5 voices, and was last updated by  Matt Smith 1 week, 1 day ago.

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  • #17050

    1960Python
    Participant

    Thank you for very this highly informative site.

    Who is the best “person” to witness an affidavit for use with Bank or DCA?
    e.g. JP or Notary Public.

    Does having additional witnessess add any value in law, to an affidavit?
    e.g. I sign in font of JP or NP and then “other witnesses” witness my signature; and then the JP or NP completes their stuff.

    What is the “strongest” way to complete an affidavit?

    What is the advantage of NP over JP?

    Is there any advantage in having additional witnessess?

    Many thanks.

    #17052

    Admin
    Keymaster

    The very best “person” to have an affidavit witnessed by would be a NP. They out rank a JP immeasurably.

    A NP can create a legal judgement (in the private) against the other party if you can demonstrate to them that you have followed the correct administrative process. This would be your offer to pay, notice of fault, final notice and default notice.

    With the affidavit you should produce to the NP all of your previous notices to the other party and ask them nicely if they would be prepared to make a default judgement on your behalf. Then you can have a default judgment and an affidavit all at the same time by the NP. Best option is to try to get the default judgement first then add this fact into your affidavit and get the same NP to witness that at a later date.

    This would mean that if the DCA proceeded with litigation, you would present the judge with your NP’s default judgement showing that the matter has already been decided and ruled upon. You would then motion the court to dismiss for lack of jurisdiction. The court has no jurisdiction as there is no controversy because the NP already ruled on the matter in the private.

    Additional witness’ are not needed if you get it witnessed by a JP or a NP. You would only need 3 other witness’ if you are asking associates to verify to your points and to your signature.

    The NP way is by far the best option but it most probably will cost you a few dollars for their time.

    #17054

    1960Python
    Participant

    POWERFUL STUFF

    Thank you very much for the speedy reply.

    If the NP did issue a Default Judgement in what form would that be?

    How would I “word” that into an affidavit?

    Thank you again as I am facing this issue right now and I have sent out all your notices plus an affidavit!

    #17058

    Admin
    Keymaster

    The NP would provide you with what is in effect a court order. This judgement would be a document that the NP has to produce himself/herself. It would normally read somewhat like a normal court order/judgement stating that they have witnessed specific documentation/proof/evidence that you have followed the correct administrative process to sufficiently satisfy all claims against you. In your case, sufficient to see all claims against you null and void and Settled and Closed in full Accord and Satisfaction.

    As for entering this point into an affidavit:
    For example.

    Principal has not been presented with any material facts of evidence that, this matter can not be ruled upon in private by a practicing Notary Public and believes that none exists.
    Principal has not been presented with any material facts of evidence that, this matter has not been adjudicated in private by a practicing Notary Public and believes that none exists.
    Principal has not been presented with any material facts of evidence that, a default judgement was not made against SCUMSUCKER DEBT CO, and believes that none exists.
    Principal has not been presented with any material facts of evidence that, this default judgement was not made effective 1st February 2015 and believes that none exists.
    Principal has not been presented with any material facts of evidence that, SCUMSUCKER DEBT CO does not owe principal $50,000 (or whatever) amount in awarded damages, and believes that none exists.
    Principal has not been presented with any material facts of evidence that, SCUMSUCKER DEBT CO is not a debtor to principal to the sum payable of $50,000 and believes that none exists.
    Principal has not been presented with any material facts of evidence that, SCUMSUCKER DEBT CO is not a debtor to principal to the sum certain of FIFTY THOUSAND AUSTRALIAN DOLLARS and believes that none exists.
    Principal has not been presented with any material facts of evidence that, principal cannot initiate foreclosure on SCUMSUCKER DEBT CO should SCUMSUCKER DEBT CO fail to make good any claimed damages, and believes that none exists.

    Just state the facts as they appear to you. You may wish to add to the above but remember, one point per line only.

    email me the final affidavit if you want and I’ll have a look at it at the email address you have.

    #17059

    Thomas Adams
    Participant

    Just to add…

    It would be best to take along to the NP any documents the DCA sent to you. This way you can demonstrate that they did fail to answer responsively and you have proof of such. Better to have all the documents on the table so the NP can see that you did ask and they didn’t answer.

    #17060

    1960Python
    Participant

    Thank you Admin.

    I need to sleep on this to digest!

    This is absolutely amazing information.

    Thank you.

    I will ponder and return!!

    🙂

    #18729

    1960Python
    Participant

    Hello DOOH,

    Because I am being hassled by a DCA again with a court claim, today I contacted a Notary Public I have used in the past and my statement to the NP was:
    “I have been informed that a NP can create a legal in the private judgment against the other party, if I can demonstrate that I have followed the correct administrative process.”

    The NP replied, “No. I am not allowed and have never been taught that in my course and i am definitely not authorised to do that.”

    I am in Victoria.

    Any thoughts, comments or ideas?

    #18734

    Matt Smith
    Keymaster

    A NP has the authority to view your documents and your process and make a judgement in the private that you have performed and they (the DCA) has not. If he/she is claiming they can’t do that they are not telling the truth or are not prepared to do this for you.

    If a NP cannot make a private judgement then they are no better than a basic JP, so whats the point of a NP? The NP is the interface between public and private.

    What you need them to do is to make a determination in the private… not public (legal). They will not make a legal determination. You can then take your private determination into legal land as proof there was prior (private) judgement and the (legal) Judge has no jurisdiction over a settled claim.

    They simply need to state that “in their capacity as a NP they have witnessed your process that you have offered to pay DCA on 3 separate occasions upon proof of claim by DCA and DCA has failed to provide proof of claim. It is their determination as a NP that you have applied and completed your private administrative process and have not received a valid responsive reply to your numerous offers. It is therefor their determination that this matter has been settled and closed in private as per the terms of default offered by you and accepted by DCA via tacit procuration (or confirmation).”

    Not all NP’s will be happy to do what you’re asking and the easiest way to get out of it is to say exactly what they did to you.

    #78280

    uniquenick
    Participant

    Has anyone found a NP that will produce a document like Matt outlines above? I need one in Brisbane or south east QLD… any referrals greatly appreciated. I did find a website of one that mentions under their services “Noting and protesting of bills of exchange” Since the process we are following is under the Bills of Exchange Act is this a sign that this notary public would perform the service we are after? cheers

    #78281

    Matt Smith
    Keymaster

    Some (almost all in our experience) balk at doing what we want them to do. They absolutely can do it, but they probably upset people above them at their local Masonic lodge in doing so. It’s not a task they do willingly and you cannot force them to do it. It’s just a case of finding one who is happy to do it.

    #78282

    uniquenick
    Participant

    okay thanks Matt so the best bet would be to approach in person or over phone and ask if they are willing to make a determination in private. If they are after reading through the documents presented to them from both sides that they can draft a default judgement that states “in their capacity as a NP they have witnessed your process that you have offered to pay DCA on 3 separate occasions upon proof of claim by DCA and DCA has failed to provide proof of claim. It is their determination as a NP that you have applied and completed your private administrative process and have not received a valid responsive reply to your numerous offers. It is therefore their determination that this matter has been settled and closed in private as per the terms of default offered by you and accepted by DCA via tacit procuration (or confirmation).” If you have any who don’t balk let me know:) In the meantime I am completing my affidavit.

    When it comes to court would you ask in court for the DCA to provide the person with the first hand notice of the original alleged debt who witnessed the creation of the contract or would you issue subpeana in advance for them to make sure this person is in court (which of course they can’t).

    Is there also a process of Discovery when you ask for documents to be presented prior to court also like a certified copy of the ‘contract’ or ‘deed of assignment’ etc. Are these motions you file in advance of any court date, or do you just make it clear in your statement of defense that these documents have not been provided or both?

    Cheers

    #78283

    Matt Smith
    Keymaster

    Person or phone… no way of knowing. If you need to drive 1 hour I’d ring first to see if they’ll do what you want.
    I can’t provide legal advice as to what to say in court. If I were going to court I’d be sure to ask for a witness with first hand knowledge knowing I had asked for the name of that witness who was testifying on behalf of the Plaintiff to all facts the DCA made claim of in their statement of claim prior to the court date via a subpoena. I’d also be sure to contact the court or a local lawyer prior to any court date to find out what the requirements are for discovery etc…. if I were going to court.

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