Recognition and Enforcement of Foreign Titles in EUA

Florida is commonly seen as a “debtor’s haven” in terms of the various protections available to a debtor against attempts to collect on judgments (or titles, as used in other jurisdictions).  This is certainly true as it pertains to attempts to find financial information about a debtor prior to obtaining a judgment.  Florida courts will not allow pre-judgment discovery or inquiry into a debtor’s assets or ability to pay.  If a creditor can demonstrate another reason for the need to obtain such information (such as the necessity to confirm whether certain transactions were part of an alleged scheme), such creditor may obtain limited financial information, but it will not be allowed to engage in full-blown discovery into a debtor’s assets.  

However, once a judgment is obtained, then Florida courts will allow a judgment creditors to obtain financial information about debtors.  The Florida Rules of Civil Procedure contain a form (Form 1.997) that may be utilized by creditors to obtain asset information about a debtor.  In fact, the judgment itself may require a judgment debtor to complete this form for the judgment creditor, and if the judgment debtor does not comply, it may be held in contempt of court.  Post-judgment, a judgment creditor may also subpoena bank records of the judgment debtor.

With regard to other non-financial (or at least non-banking) information about a judgment debtor, a judgment creditor may also use the subpoena power of the court to obtain information and documents from third parties that may have done business or transacted with, the judgment debtor, regarding those contracts or transactions. 

Before a foreign judgment can be enforced in Florida, the judgment creditor must follow the steps set forth in Florida’s Uniform Out-of-Country Foreign Money Judgment Recognition Act, found in Chapter 55 of the Florida Statutes (the “FMJRA”), to domesticate and have the foreign judgment recognized and enforced as though it was a Florida judgment.  The same is true for any interim measures—the foreign judgment must first be recognized by Florida courts before any enforcement or interim steps may be taken.

As noted above, a judgment creditor must follow the requirements of the FMJRA, which are generally as follows:

• Although not specifically required in the FMJRA, the judgment creditor should obtain a certified translation of the judgment, so that any enforcing court can understand the judgment itself, since all court proceedings are to take place in English in Florida;
• The judgment must be final without the possibility of further appeal;
• The judgment must be filed with the clerk of court and recorded in the public records, along with an affidavit from the creditor that contains the name, social security number, and last known address of the judgment debtor and creditor;
• Upon this filing, the clerk of court will issue notice to the judgment debtor of this recording, giving the judgment debtor 30 days within which to file an objection to the recognition or enforceability of the judgment;
• If there is an objection, the court must have a hearing and enter an order either granting or denying recognition of the judgment;
• If there is no objection, then the clerk of court will enter a certificate of no objection; and
• Upon either the recording of the order recognizing the judgment or the certificate of no objection, the foreign judgment will then be enforceable as though it was entered in Florida.
  

In Florida, the procedure is the same for EU or non-EU judgments.  It is merely a question of whether it is a judgment issued by a foreign court or not.

The recognition process is very formulaic.  If there is no objection, then the time required will be just over 30 days—time enough for the clerk to issue notice to the judgment debtor, wait the statutory 30-day period, and then issue the certificate of no objection.  If there is an objection, then the process will be longer and will depend on how quickly the judgment creditor can obtain a hearing time before the judge.  This will vary from judge to judge, and could extend the time by a few weeks to a few months, depending on how crowded the docket for the assigned judge is.  And, if the judgment debtor appeals the decision by the trial court, this could extend the time by months if not more than a year.

Other than legal fees, which will be negotiated between the creditor and counsel, the costs for recording the judgment are limited to a service fee of $42 (at the time this is written), plus the cost of mailing, copy fees, and recording fees.  Generally, a per-page fee is charged for the recordation of documents.  It is difficult to state with certainty as to the total amount of costs, but it would generally be no more than a few hundred dollars, depending on the size of the judgment and accompanying translation itself.

The FMJRA applies to monetary judgments.  Under the FMJRA, grounds for nonrecognition include the following:

• The foreign court did not have personal jurisdiction over the defendant;
• The foreign court did not have subject matter jurisdiction;
• The judgment was rendered without sufficient due process protections or by a partial tribunal, or the integrity of the judgment is otherwise in question;
• The defendant did not receive sufficient notice;
• The judgment was obtained by fraud;
• The claims are against the public policy of Florida;
• The judgment conflicts with some other final order in Florida;
• The proceeding that led to the judgment itself did not follow the parties’ agreed-upon dispute resolution (i.e., the parties should have arbitrated their dispute, rather than going to court); and
• The judgment in question is a defamation judgment.
  

See the previous answer.  There is no difference.

There is no time frame specified in the FMJRA, but section 95.11(1), Florida Statutes, limits the time for commencement of an action on a judgment to twenty years following the date of the judgment.

Legal costs for obtaining recognition and enforcement may be added to the judgment, if there is a contractual or statutory basis for attorneys’ fees in the underlying dispute.  If there is no such original basis, then there is no way to add them at this stage of the proceedings.

Determining exactly which steps to take and the order in which to take them varies from case-to-case, and one should consult their Florida attorney as to a plan of action.  However, generally, the recording of a judgment in each county where a judgment debtor has real property will cause the judgment to be a lien against any real property.  Filing a judgment lien certificate in Florida’s central database will serve as a lien against a debtor’s personal property.

Further, the Florida Statutes also provide procedures for garnishment of the debtor’s money held by banks or other third parties, attachment or levy of the debtor’s assets, or replevin of certain types of property.  In certain circumstances, a judgment debtor may be able to pursue proceeds supplementary, which are proceedings to obtain access to property of a judgment debtor held by another, or there may be grounds to pursue an action for fraudulent transfer, which is also governed by statute, as a means of obtaining money that a judgment debtor may have transferred to others to make itself insolvent or to otherwise place the assets beyond the reach of a creditor.

If a judgment debtor files for bankruptcy, then all enforcement activities are automatically halted.  Debtors who file for bankruptcy protection in United States courts obtain an “automatic stay” of any enforcement activities. While there are very limited reasons to get the stay lifted, those are very fact-specific and beyond the scope of this endeavor.

In the United States, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the “New York Convention”), found in 9 U.S. § 201 et seq., governs the recognition of all foreign arbitral awards.  Through the New York Convention, federal district courts have been granted original jurisdiction to enforce foreign arbitral awards, regardless of the amount of the arbitration award.  Under this Convention, a party to an arbitration has three years after entry of an arbitral award to apply to the district court for an order confirming the award.  Such court will confirm the award unless there was a lack of notice to the party; the party was otherwise incapacitated; the arbitrator exceeded his or her powers; the arbitration agreement itself was not valid; the arbitration or composition of the arbitral tribunal did not follow the requirements of the agreement or the law governing the proceedings; the subject matter should not have been arbitrated; or finally, enforcement would otherwise be contrary to public policy.