ENFORCEMENT OF FOREIGN JUDGEMENTS IN THE UNITED STATES
American lawyer Jonathan Capp, Esq. provides skillful and dedicated representation for both Plaintiffs and Defendants in US State and Federal Courts. We have recovered millions of dollars in judgements and settlements for their clients.
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Enforcement of foreign (non American) judgements in the United States
Sometimes people think that they can get away with not paying someone in another country, or that even if a foreign court enters a judgment against them, such a judgment has no value in the United States.
We are waiting to give people like this this an unpleasant surprise!
These offices have successfully enforced judgments from foreign courts.
Typically, a foreign litigant succeeds in obtaining a judgement against someone who ends up in the United States. Often the losing party flees to the United States thinking that they can avoid paying the foreign judgment.
Sometimes the opposing party ignores the foreign proceedings and the foreign plaintiff succeeds in obtaining a default judgement.
It may well be the case that the judgement debtor has no assets in say the U.K. or Australia, or where they live, against which the prevailing party can enforce the judgement.
Thinking that they are safe in the United States, often the judgement debtor makes no effort to conceal their assets. This is especially the case if a long period of time has elapsed since the foreign judgement was entered.
Although there is no judgement enforcement treaty between most countries and the United States, normally US courts will enforce a validly entered foreign judgement.
The US court will require that the US based judgement debtor was aware of the foreign proceedings. At a minimum we will need to show that the judgement debtor was properly served with notice of the foreign proceedings.
It is important that the US judgement debtor was given a fair opportunity to participate in and contest the foreign proceedings.
We also need to show that the foreign judgement is final and no longer subject to an appeal.
This can be done by producing a certified translated version of the foreign judgement. Often an apostille in required. This is an official certification of the validity of the judgement issued by the foreign court.
These offices can assist in obtaining a certified English translation of the judgment and in obtaining the appropriate apostille.
It is also important to note that some types of judgements are not enforceable. This restriction normally relates to fines and penalties imposed by a foreign criminal or administrative court. Foreign tax debts are also not enforceable in the US.
There are two levels of jurisdiction in the United States.
Firstly, each of the 50 states have their own state courts. State courts handle the bulk of litigation in each state. Each state has its own laws. However in practice state laws are quite similar.
American law is based in large part on the English common law system and thus the laws in each of the 50 states for the most part are not greatly different to one another. Furthermore, attempts are made to harmonize the laws of the states thru model codes which most states adopt.
Secondly, there is a federal jurisdiction in the United States. Federal courts are administered differently from the State courts.
Certain matters such as trademarks and copyright and matters of immigration, customs and patents are reserved to the federal courts since they are regulated by federal law.
Almost all matters relating to commercial disputes, family and probate matters are regulated by state law and thus by the state courts.
Most US citizens therefore litigate matters in state court according to the local state law, unless for example, it is a copyright or trademark matter.
Foreigners however- including foreign citizens- have the right to litigate almost all matters in federal court as long as the amount in cause exceeds $75,000. Thus foreign citizens, and other foreigners, often find themselves in Federal court as an expiation to the general rule that most matters are litigated in State court.
Federal court is considered to be more formal and stricter than state courts which are often more relaxed. Often matters proceed more quickly in federal court.
For most civil matters, unlike in France, the parties have a right to trial by jury. Thus in a contract dispute or a personal injury matter most cases are decided by a civil jury of between 6-12 persons. The jury often fixes the amount of damages awarded.
The role of the judge is to act as an umpire or referee and decide questions of law.
Jury trials in the United States can often become theatrical as lawyers try to persuade a jury of non-lawyers
In general, litigation in the United States is a lot more intense than in the U.K., Australia, and other European countries. Lawyers often take multiple witness depositions, and hire expensive expert witnesses to advance their case.
The amounts awarded for damages also can greatly exceed the compensation awarded by courts in other countries.
Another difference is that attorneys are free to negotiate fee agreements with clients. Often cases are taken on a percentage of recovery.
Thus a foreign judgment can be enforced in either State or Federal court. The decision as to whether to select the state or federal jurisdiction is particular to the facts of the case.
Enforcing the foreign judgment is not straightforward. It is not something that can be accomplished in a few weeks.
We need to file a separate lawsuit, namely the complaint for enforcement. Essentially, we present the foreign judgement to the American court asking for enforcement.
We then serve the judgment debtor with the complaint for enforcement. This normally comes as a great shock since the judgement debtor almost never expects this to happen!
The judgment debtor then normally has between 20-30 days to file their response with the American court.
At this time, we typically file a petition for summary judgement. Basically, we argue that the foreign judgment is valid and no longer susceptible to appeal. We state that the judgment debtor was properly noticed of the foreign proceedings and either lost or ignored the foreign action.
We argue that the foreign judgement can no longer be disputed and must be enforced. The foreign judgement cannot be relitigated on the merits.
Once again the judgement debtor has the opportunity to contest what happened in the overseas court. For example they may try and argue that they were not properly notified of the foreign proceedings.
This is why it is essential to show that the judgement debtor was properly noticed in strict compliance with the foreign country’s rules of civil procedure.
If we cannot show this then the foreign judgment will most likely not be enforced.
Another potential defense to enforcement is that the judgement creditor delayed too long in seeking enforcement. In short, the judgment debtor can argue that the enforcement proceedings are proscribed by the statute of limitations.
For example, in California, the judgement debtor typically has ten years from the date of the entry of the Foreign judgement to file the complaint for enforcement. This period varies depends on the state and is something which needs to be specially analyzed for each state.
The judgment creditor should act quickly to avoid losing the ability to enforce.
Once the foreign judgement has been validated by the American court then all remedies for enforcement available to an American judgment creditor can be employed. This includes seizing bank accounts, attaching and selling real property, and other assets.
Of course, the judgement debtor may simply try to file for bankruptcy. It has to be noted that bankruptcy laws are significantly more liberal in the United States than in other countries scubas Australia or the U.K.. A judgement debtor typically cannot avoid a judgement for fraud however, and must pay such a judgement.
In conclusion, provided the American judgment debtor had fair notice of the underlying foreign proceedings the Foreign judgement will be normally enforced by the American court.
For further information and an in-depth analysis of a particular case do not hesitate to contact us.