off topic posts - from can I be sued for overseas Debt

[kbob]

Enforcement of default CCJ judgement requires proof of original service.

 

I would love to know if anyone has ever had a DCA chase UK debt within the Euro Zone and what happened? in regards to EEO EPO and what happens if a EEO, EPO is contested based on default UK CCJs?? How much money will DCAs spend on these legal procedures with no guarantee of success?

 

Anyone got a story to tell?

 

 

Enforcing an English judgment in a member state

 

The United Kingdom (and hence England and Wales) is bound by the Brussels Regulation. It is also a contracting state to the Lugano Convention.

The Brussels regime enables the recognition of English judgments in other member states without needing to issue fresh proceedings in the enforcing jurisdiction.

“Judgment” includes:

 

• An order for costs.
  
• Many interlocutory orders (but not those relating to the conduct of the proceedings themselves).
  
• Injunctions (although there may be difficulties enforcing, in certain jurisdictions, orders obtained “without notice” such as freezing injunctions).
  
• Decrees for specific performance.
  

Procedure

 

The procedure to enforce an English judgment in another member state is as follows:

 

• Make a “without notice” application in the enforcing state for the judgment to be declared enforceable (Article 38 of the Regulation or Article 34 of the Convention). While in theory this provision should override any local law requirements of notification, local law advice should be sought, as in practice there may be important modifications.
  
• The appropriate body to which the application should be made in the case of each member state is listed in Annex II of the Regulation or Article 32 of the Convention.
  
• The procedure is a matter of local law – instruct local lawyers.
  

There follows a summary of what should be produced to the court in the enforcing state depending on whether you are operating under the Regulation or the Convention. This may vary in accordance with local law. Always instruct local lawyers.

Requirements on an application for recognition or declaration of enforcement under the Brussels Regulation

 

 

• Copy of the judgment.
  
• Certificate in the standard form set out in Annex V of the Brussels Regulation.
  
• Certified translations of the above, prepared by a translator qualified in enforcing state.
  
• Any other documents required by local law.
  

See Articles 53 to 54 of the Regulation.

Requirements on an application for recognition or enforcement under the Lugano Convention

 

 

• Copy of the judgment.
  
• In case of default judgment, the original or certified true copy of the document establishing service of the claim form (or equivalent).
  
• Opinion or other document establishing that, as a matter of English law, the judgment is enforceable (an affidavit or witness statement sworn or made by an English qualified lawyer would be an appropriate document).
  
• Evidence of service of the judgment on the defendant.
  
• Certified translations of the above, prepared by a translator qualified in the enforcing state.
  
• Any other documents required by local law.
  

See Articles 46 to 48 of the Convention.

Enforcing the order

 

Once an order for recognition or enforcement has been obtained, consider applying to the enforcing court for a freezing injunction or other protective measures to safeguard the assets in that jurisdiction. You can do this even if the defendant is appealing the decision to authorise enforcement.

It may be possible to obtain interim protection even before recognition; this should be considered particularly if there is a concern about, for example, dissipation of assets or to prevent continued unlawful activity.

Under the Brussels Regulation a judgment from a Regulation state is to be declared enforceable immediately on the completion of the formalities set out in Articles 53 to 54 of the Regulation. There is no power for the court in the enforcing state to refuse enforcement of its own motion by reference to the grounds for refusal that are set out in Articles 34 and 35 (see below). The only grounds for refusing enforcement at this stage are that the formalities in support of the application have not been complied with (that is, the documentation is faulty). Recognition can, however, still be refused by reference to the grounds set out in Articles 34 and 35 (see below).

By contrast, under the Convention, the court in the enforcing state has the power of its own motion to refuse enforcement at this stage by reference to the grounds set out in Articles 27 and 28 of the Convention.

If there is a refusal by the courts of the enforcing state to recognise or enforce, consider appealing. The appeal decision may then itself be appealed by either party. The relevant appeal body (in the case of each member state) is set out in Annex III of the Brussels Regulation or Articles 40 and 41 of the Convention. The Convention and the Regulation are silent on the question of time limits for appeals. Seek local law advice on this point and regarding procedure on appeals generally.

Edited July 27, 2010 by cerberusalert

[WA_Newman]

With regard to Jurisdiction, it is possible that an Australian contract can be enforced in a UK court if the UK court is deemed to be the appropriate forum to hear the case. Given that the debtor is a UK resident, it could be argued that a UK court is the appropriate forum.

 

Regardless of Jurisdiction, any contract between an Australian financial institution and a (then) Australian resident, signed in Australia is subject to Australian Law.

 

A creditor would have to sue in a UK under Australian Law, which is not the easiest, or cheapest option.

 

As the alleged debt is covered under Australian Law, the creditor would need to be a member of an Australian financial ombudsman service (there are two: FOS and COSL). Simply disputing the debt with the ombudsman service is going to delay anything for months at least. There are a lot of things a creditor has to do under Australian Law to enforce a judgement in court, not least issue a Section 80 letter before commencing any actions.

 

Anyone interested in reading up should google "ASIC debt collection", "Section 80", "UCCC".

 

New laws brought in on 1st July 2010 make it even more difficult for Australian Debt Collectors.

[BrokeBob]

May an American give a bit of advice on how to procede on this end?

 

As far as how to deal with these con men in the UK, I cannot help you at all. The advice you will get from others is what you should pay attention to.

 

Debtors in the US often have more rights than do debtors in the UK, but in this case it appears to be the other way around. If you owe money in the US, but move out before it is statute barred, the time freezes while you are out of the country, and is reset when you return. So, you could leave for 20 years, and still get sued. That does not appear to be the case in the US.

 

If they somehow decide to file suit against you in the US, there are a few things you should know.

 

First, if they sue you, the judge may be completely confused. Most American judges have no idea whatsoever how to handle overseas debt. So, your best bet would be to file a Motion to Dismiss based on the fact that the local court has no jurisdiction over the matter.

 

Second, the statute of limitations on debt varies for different states, and for different types of debt. In Delaware, the debt is statute barred after only 3 years, but Ohio it would be 15 years. So, if you are in Delaware or Virginia or some other state with a shorter statute of limitations than back home, file for dismissal if the debt is any older than the local SOL. Otherwise, file for dismissal if the debt is older than the statute back home. IMPORTANT: The judge will not dismiss the case if you do no bring up the point. If you live in Wisconsin, it is illegal for they to try to collect statute barred debt. You can counterclaim for damages, or $1000, whichever is greater.

 

Third, in virtually every state in the US, you can demand they prove that (a) the debt is real and (b) they actually own the debt. Most of these debt buyers, what we in the states call junk debt buyers, don't HAVE the proof required to win a case in court.

 

Fourth, there is a very good chance they will violate US and state laws in debt collection. Read up on the Fair Debt Collection Practices Act, and the corresponding state statutes. They ALWAYS violate the FDCPA. The penalty is $1000, and/or damages, plus attorney's fees. So, if you spend $3000 on an attorney and $500 on court costs to file a claim against a debt collector for FDCPA violations, they will wind up having to pay $4500, of which $1000 goes to you.

 

Finally, realize that a number of judges just plain hate anyone accused of being a debtor, and may well ignore all the laws. In that case, you would need to appeal to a higher court.

 

For more information about American debt laws and courts, I would suggest the forums at http://www.debtorboards.com/

Edited October 31, 2010 by cerberusalert

[creditcorptrouble]

Hi there

 

I have somewhat of a long history with the company. Unless your debt is absurdly huge, they will not come after you. To enforce a foreign judgment in the UK, it must be registered in the High Court (Part 74.3(2)(a), Civil Procedure Rules) just google 'cpr part 74' - while the fee for registering the judgment is only £50, there is a lot of additional paperwork that will need to be drafted by a UK lawyer. The process will be expensive and in any event, credit corp do not seem to be aware of the procedure available to them or they just can't be bothered. They knew that I was in the UK and I owed them $26,000 and they did nothing about it.

 

As you can see from my website, they certainly came after me when I returned to Australia, but their staff and the lawyers they used made various procedural errors which resulted in me obtaining an order restraining them from enforcing the judgment in Victoria. So I can't (but don't want to anyway) move.

 

Please feel free to ask any questions, I have worked both in the UK and Australian legal system for over 8 years. I am unable to provide legal advice, but happy to comment on any hypothetical situations that you could dream up.

 

And remember, don't always believe what they say, the company has lied to me and broken many laws and I get plenty of emails from people who say the company lies to them as well.

 

Sorry, I was unable to post links here as I am a new user.

 

Regards

 

Daniel

 

http://www.CreditCorpTrouble.com (link added by cerberusalert)

Edited February 12, 2011 by cerberusalert
link added by cerberusalert

[creditcorptrouble]

The best way to find out if there is a court judgment against you is to write to, or telephone, the civil registry of the court where proceedings were likely to have been issued (you don't mention what state it might have been in - you may even have to check more than one state's court).

 

If you have not had the writ/complaint/summons served on you and judgment was obtained in default, then you will be able to reverse that default judgment if you can provide evidence to support a claim that you were not served (and thus could not file a defence). Evidence might be documents that show that you were living at a different address at the time.

 

Whatever you do, DO NOT request your Veda credit file. The skip tracing system that Veda runs will notify anybody subscribing to it (such as credit corp) of your new address. A workaround this problem (which I would not approve - but I did it myself) is pay for an email copy of your credit file. You can then give your last Australian address without divulging where you are now, and you will receive a copy of your credit file by email.