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 concepts law so you can
avoidthe whole mess without having to “appear” in
court,
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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serve you, don’t hesitate to check out our
Articles
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section. Discover some of the secrets of law that you’ve
never been taught!
The
laws sometimes sleep,
but never die.