What Is An Abatement?

And How Can It Be Used For Remedy?

The concept of abatement has been a process of Law well settled that has been around for centuries, and it is still alive, well, and effective in the present day, despite what a judge in a contemporary court may admit. Briefly, an abatement refers to the termination of a suit or the quashing of a nuisance complaint, most often based upon abating faulty legal process. A formal abatement (i.e. one that is labeled as such, such as a “Notice Of Abatement” or a “Plea In Abatement”) does not directly challenge a court’s jurisdiction, but is merely a good faith attempt to correct errors in legal process. What it is saying is: “Have the plaintiff correct the errors in process, judge, and I’ll attend your court.” Now, those errors may at times actually be in the form of a challenge to the jurisdiction being alleged by the plaintiff. But it is up to the plaintiff to correct any points that are not agreed upon as facts in the alleged matter. If the plaintiff, when the demand is made, cannot or will not correct on the record errors in process over the accused party, then the matter cannot go forward and must be dismissed or disposed.

In today’s courts, which are operating under martial rule, judges do whatever they want whenever they want as long as they do not alarm the public or disturb the peace. Temporary or limited jurisdiction is always granted to try jurisdictional questions, even if one goes to higher courts. Defendants grant jurisdiction without knowing it because they never challenge the process that creates the jurisdiction in the first place. (See Federal Rules of Civil Procedure §2.4 (2)(4) ) Questions of Law are always handled at the outset of any matter coming before a court. This means that these particular questions need first to be handled before anything else can be brought up about a matter, which means that no other facts about the matter other than the ones in question can be brought up. If one is going to “attend” a court hearing in order to challenge the jurisdiction being alleged or presumed, this is what a Special Appearance was meant to provide opportunity to cure.

Special appearances fail, though, when a judge knows what he is doing, and through what appears to be a conflict in interest can assist the plaintiff in perfecting the process. Process is perfected by an appearance in court, and this includes, sometimes, even a special appearance. One must first know what they are doing and how they are to conduct themselves in order to maintain their stance of special appearance. Say one wrong word or acquiesce in implied agreement to one key assertion made by a judge, and you can lose your position of special appearance. It is also important to remember that the court is not the building, the courtroom, the judge or anyone else; it is the paperwork. A cause of action (case) exists in the first place because someone (a plaintiff) serves a written action on someone else. Thus, courts are created by the paperwork. If the court paperwork is defective, there is no court, and its authority ceases to exist.

One way which has been used to overcome the War Powers court process (i.e. martial rule law, under the rule of necessity, which, by the way, is an unlawful rule the way it is currently being used) is by abatement. The plaintiff cannot put a case in bar unless his process (paperwork) complies with court rules, the first of which is that the plaintiff's process must have no errors in it. Errors constitute defect in process and are sufficient cause for a respondent to issue an abatement. Until those errors are corrected, nothing can proceed from the plaintiff's side of the matter in terms of proceeding to establish a court.

Some readers who are familiar with Law may question the use of the above mentioned Plea In Abatement process. The word “plea” being a red flag for acquiescing to the personam jurisdiction of a court. You are to be congratulated if you picked up on that detail. However, a plea in abatement is not a plea in bar, but rather is a plea out of bar. This refers to the fact that a court cannot hear and judge a matter that has not yet come under a court’s authority. The Plea In Abatement process, therefore, is performed before a matter even comes before a court, which means that it must be done at the earliest opportunity. For cases to come under a court's authority, all preliminary matters (errors in the original process) must have been resolved beforehand, or the plaintiff has failed to properly bring his case to the court. This is where the concept of timeliness comes into play in terms of a practical remedy that can be pursued. If this process isn’t executed in a timely fashion, it becomes worthless.

Abatements occur on a regular basis in traffic courts (as well as other types of courts) all across America and anywhere where actual Law is honored. An abatement can be either statutory or non-statutory. By statutory abatement it is meant that the matter can be abated if the challenge is made timely within the period of time designated by statute, as in the 72-hour time limit for a person to approve a contractual transaction such as the receipt of a loan from a bank (Truth in Lending Act of 1968) or the purchase of a product from a retail merchant. In both cases, the purchasing party has a 72-hour “cooling off” period as established by statute; hence the term statutory abatement in reference primarily to the established time period during which the abatement of faulty process involving a commercial transaction can take place.

On the other hand, a non-statutory abatement occurs outside of the statute, code, rule, ordinance or regulation being used to give them lawful effect, and generally can be said to occur on the Law side of the matter (as opposed to the “color of law” side of the matter covered under statutory rule making). In a non-statutory abatement, there is no time limit being placed on the challenge for abatement; it can and must occur at any time before a pending matter comes up for hearing in court. As stated above, the sooner the challenge is made the better in terms of both types of abatement.

In learning about abatements and their use, the issue of abating a traffic ticket can be a relatively benign complaint in which to try out your new found legal knowledge. The formal abatement challenge as it is conducted through a third-party intermediary within the statutory system is generally issued by a Notary Public to the Clerk of the Court by first sending the Clerk a Notice of Abatement, a Memorandum of Law, and a Denial of Corporate Existence. This in many instances will take care of the annoying victimless complaint ticket. If you (through the notary) do not hear back from the Clerk within fifteen days, the next step is for the notary to send in a Default Notice to the Clerk. This in general provides the Clerk with an extention of time in which the plaintiff can cure process by answering your challenge. If no answer is received after an additional seven days, your Notary issues a non-judicial Order of Default (or Default Judgment) in your favor which will end the matter for all time. In other words, not even a judge has the legal authority to overturn such a default judgment.

In some instances, though, the authorities will play hardball with you after you send in the initial Notice Of Abatement or Plea In Abatement documentation. This may come in the form of a summons which has the proper signature of a judge and the court seal stamped on it. In which instance you would need to send in a Subpoena and Discovery Interrogatories to the prosecuting attorney and the court. If the matter came to this point, you would be challenging the establishment by the plaintiff of jurisdiction in the matter, and the opposing party would first need to traverse your challenge before a court could proceed.  In most instances they will never give you the documents you have requested or answer any of your questions. If they were to provide you with any of the documents you requested, then it would prove your challenge, and they would lose instantly! So, they are not going to go on record as having done that.

However, your luck in finding a notary public who is aware of his authority to use the abatement process may be short lived. Most present-day notaries are not being taught about this process. At least not in the same way they had been seventy or eighty years ago. Today, they are generally taught this procedure on a “need to know” basis.  Therefore you may need to educate a prospective notary before he or she will be willing to execute the process for you. The notary is considered an officer of the court, and therefore as an ostensible disinterested third-party witness has some influence in certain matters (such as the abatement process).  The notary can verify on the record that certain legal processes were actually accomplished, and therefore become a judicial witness in validating one’s abatement process. This is one instance in which the notary has authority similar to that of a sitting judge. In such an instance, there is nothing for a judge to rule upon; the ruling was made based upon the action (or inaction) of the parties involved.

Yet, what happens if you cannot find a notary who will agree to oversee your legal process? Are you to be left without any access to remedy at all? Well, according to Law, that cannot be the case. Before court procedures in America were changed in the 1960’s to one form of action, there was a time when someone aggrieved of harm would file a tort at law. The nature of the action (for example, whether it was property damage, a personal injury, or a breach of contract) determined the rules of the procedure. If there was a breach of contract, then the issue became a matter to be resolved in a court of equity. However, if the aggrieved party could allege a tortious breach of contract (injury or damage to a party), the matter would be moved from the equity side of the court into the law side. This is what can occur in the instance of a non-statutory abatement. The reason for this is simple: the people must have access to a remedy at law if this type of action could provide relief.

Readers who are interested in reading more about the Plea In Abatement process and how it can be accomplished can access an estensive PDF about it at Lee Brobst website: Plea In Abatement. The approach in the present document is one that is made on religious grounds, however readers who are uncomfortable with that approach are free to apply the same principles using a non-religious approach. With a little bit of research, using keywords already mentioned in this article, inquisitive and industrious readers may find an additional approach using the Petition For Abatement, which amounts to a First Amendment (to the Constitution) petition for abatement. This latter approach utilizes a challenge based upon the constitution and the law. Resourceful readers will take note of both the differences and similarities in each approach, adding to their knowledge of Law.  

Generally, when a traffic citation is issued to someone, the time period for the hearing to take place is usually about two months or so from the date of the ticket’s issuance. This provides one with plenty of time before the hearing date to initiate a default using one of the non-statutory abatement processes outlined above. The rule is: pleas in abatement are pleas out of bar and grant no jurisdiction to a court when written and served properly. 

There is an additional choice for remedy which has its root in the Plea or Petition for Abatement process, but which does not require the use of a notary public. What it does require is someone with enough knowledge of the Law and the intestinal fortitude to stand up and challenge the opposing party directly and in a way that will be well documented proof of the authority that the man (or woman) brings to the court. When a man (or woman) stands up and presents himself (0r herself) before a court of legal fictions without the need for an intercessory third party witness (notary) or mouthpiece (attorney), he (or she) is standing to PRESENT (and not re-present) himself before the magistrate while essentially asking the same question of the plaintiff, whose process is faulty and with error, as the previous two methods of abatement.

This method is as easy to learn (and less involved timewise) as the previous two methods of abatement just discussed, and in addition, it can be done in such a way that the statutory authority will recognize it if it is done correctly, which would have it fall into the category of a statutory abatement. If readers would like to learn about this latter method of abatement, they can click on the link in the next paragraph to read all about it by downloading the free report.
 
If you would like to learn more about these concepts so you can avoidthe whole mess without having to “appear” in court at all, you can download our free ebook Common Law Remedy To Beat Traffic Tickets and learn about the secrets that the courts and legal profession don’t want you to know.
 
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If you’d like to learn more about the law and how it can serve you, don’t hesitate to check out our Articles on Traffic Law section. Discover some of the secrets of law that you’ve never been taught!

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