Transcript Document 7345693

“…and (bi-national)
justice for all.”
California Conference on
Self- Represented Litigants
April 28 – 30, 2010
Bi-National Issues
•
•
•
•
Letters Rogatory
Service of process
Enforcement of orders
Cases with identical issues
pending in both California and
Mexico
One Child’s Story


Jean Paul Lacombe Video
http://www.youtube.com/watch?v=NVjhTCLKlhU
Definition of Letters Rogatory
Also known as a letter of request, a letter rogatory is
a formal request from a court in one country to "the
appropriate judicial authorities" in another country,
used to request compulsion of testimony or
documentary or other evidence or to effect service
of process and enforcement of judgment.
Guidelines on Drafting
Letters Rogatory

Should be written in simple English

Should be addressed "To Appropriate Judicial Authority”
Include a brief synopsis of the case, including identification
of the parties and the nature of the claim and relief sought
to enable the foreign court to understand the issues involved


State the nature of the assistance requested
Include a statement expressing a willingness to provide
similar assistance to judicial authorities of the receiving
state

Example of a Letter Rogatory
Con’t Example of a Letter Rogatory
Requirements for Execution of
Letters Rogatory



Must be translated to the language of the country
where it is being sent
Must attach certified copies of relevant court
documents (summons, petition, judgment, etc) to
the letter rogatory
Must be authenticated with an Apostille
Convention Abolishing the
Requirement of Legalization for
Foreign Public Documents



Facilitates the circulation of public documents executed in
one State party to the Convention and to be produced in
another State party to the Convention.
It does so by replacing the cumbersome and often costly
formalities of a full legalization process (chain certification)
with the mere issuance of an Apostille (also called Apostille
Certificate or Certificate).
The Convention applies only to public documents, emanating
from an authority or official connected with a court or
tribunal of the State (including documents issued by an
administrative, constitutional or ecclesiastical court or
tribunal, a public prosecutor, a clerk or a process-server);
administrative documents; notarial acts; and official
certificates.
Example of a California and
Baja California Apostille
How to Obtain an Apostile


Through the California Secretary of State:
In Person (Regional Offices in San Diego, Los
Angeles and San Francisco)

By mail to Sacramento offices

Issuance Fee: $26
Central Authority
Procedure
Issuance of Letter Rogatory
by requesting authority
Send to Central Authority
U.S. Department of State
(Process Forward International)
U.S. Department of State
Verifies the LR. If satisfies all
Requirements it is forwarded to Mexico’s
Central Authority - Ministry of
Foreign Affairs
Letter Rogatory is received by the
Proper Judicial Authority, who executes it,
Returns it to Mexico Central Authority.
Letter Rogatory is received by
Mexico’s Central Authority and
Forwarded it to the proper judicial
Authority in the Republic of Mexico
Judicial Channels
Procedure
Issuance of Letter Rogatory
by requesting authority
Letter Rogatory carried by the interested
party to the proper judicial authority
in Mexico
Letter Rogatory is received by
Mexico’s Judicial Authority and processed
through the clerk of the courtroom
Judicial Channels vs.
Central Authority
Save time - Letter Rogatory can be processed in a
month
Save Money - It can be carried out by the
interested party
You can establish a contact and direct
communication with the foreign judicial authority
for future cases
Example of Response to
a Letter Rogatory
Con’t Example of Response to
a Letter Rogatory
Service of Process
Service of Process and
Service Abroad – Mexican Law







Personal service
Substituted service
Publication and posting
Certified Mail (only if respondent resides out of state)
(§117)
Service of process is generally made by an actuario- (clerk) –
a government employee
If respondent is in a foreign country, service shall be made
by means of letter rogatory (§ 108)
International letters rogatory are also governed by the
Mexican Federal Code of Civil Procedure, and by
international treaties to which Mexico is a signatory
Service Abroad - California Law





Outside of the United States, a summons shall be
served:
As provided in this chapter, or
As directed by the court in which the action is
pending, or
If the court finds that service is reasonably
calculated to give actual notice,
As prescribed by the law of the place where the
person is served, or
As directed by the foreign authority in response
to a letter rogatory.
(CCP § 413.10(c); CCP § 413.30)

CAVEAT:
“Subject” to the Hague Service
Convention on the Service Abroad of
Judicial or Extrajudicial Documents
in civil or commercial matters CCP §
413.10(c)

“Subject” to is not the same as
“pursuant” to, but treaties trump
state law – Yamaha case
Service by Mail to Mexico?


A summons may be served on a person outside this
state in any manner provided by this article or by
sending a copy of the summons and of the complaint
to the person to be served by first-class mail,
postage prepaid, requiring a return receipt. (CCP
415.40)
Query: Would that apply to Mexico? (International
registered mail available but survey results contra)
Service Abroad – International Law



Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents in
Civil and Criminal Matters
U.S. and Mexico are both signatories to
the convention
Inter-American Convention on Letters
Rogatory - for members of Organization
of American States: includes U.S. and
Mexico
Hague Convention on Service





Applies in civil cases
To transmit judicial documents
For service abroad
Does not apply where defendant’s address
is not known
Convention deals with transmittal of
documents, not the actual service
Hague Transmission channels





Central Authority
Consular or diplomatic channels
Postal channels
Direct communication between judicial officers,
officials or other competent persons of the State
of origin and the State of destination
Direct communication between an interested party
and judicial officers, officials or other competent
persons of State of destination
Hague Model Form Requirements




Request for Service
Certificate (proof of service)
Summary of Documents to be Served
Recommended warning of legal nature,
purpose, and effects of documents
being served
Inter-American Convention


Applies to letters rogatory in civil or
commercial cases before judicial or
adjudicatory authorities
For the performance of procedural
acts of a merely formal nature, such
as service of process, summons or
subpoenas abroad
I – A Convention Options
for Sending Letters Rogatory
May be transmitted by interested party:
 To Central Authority
 Through diplomatic
a copyor consular agents
 Through judicial channels
 States parties in “economic integration
systems” may agree directly between
themselves upon special methods and more
expeditious methods
Imperial Court Forms



Ex Parte Application for Issuance of
Letter Rogatory for Service of
Process Abroad; Order
Letter Rogatory: Request for
International Judicial Assistance for
Service of Process Abroad
Based on California and international
laws and treaties
Ex parte Application for
Issuance of Letter Rogatory
Letter Rogatory Example
Con’t Letter Rogatory Example
Con’t Letter Rogatory Example
Guardianships/Passports Issues


Guardianships: One or both parents in
Mexico
Passports: No order or joint custody,
with one parent in Mexico
Guardianship


A parent or person with legal custody should
receive personal service 15 days before the
hearing or signed Notice and Acknowledgement Prob. Code § 1511 (b) (2)(3); CCP §§ 415.10, 415.30
Relative(s) named in petition receive service by
mail 15 days before hearing unless court waives Prob. Code § 1511(c)(2)
Guardianship - Good Cause
Exception to Personal Service


Legislative Comment examples:
(a) notice would be useless or
detrimental to the person to receive
notice and
(b) after the exercise of reasonable
diligence, the whereabouts of the
person is unknown
Guardianship



Is it “good cause” if the only factor is
that one of the parents/legal
guardians resides in Mexico?
They may have important but unknown
information about the proposed
guardian.
Personal service could be made by
means of letter rogatory
Passports: Establishing Parental
Consent If Only
One Parent Applies


If non-applying parent will consent, have
non-applying parent sign Statement of
Consent (Form DS-3053)
If non-applying parent will not consent,
applying parent may complete a Statement
of Special Circumstances explaining why
written consent of non-applying parent
cannot be obtained (Form DS-3053)
Passports - Motions/Orders to
Show Cause



Assume U.S. citizen minor needs a U.S. passport Minor must have parental consent to obtain U.S.
passport. What if one parent is in Mexico and does
not consent?
Solution: obtain a sole custody order or court
order specifically permitting applying parent’s
travel with child
Serve absent parent with motion/OSC by means of
letter rogatory
Enforcement of
Judgments/Orders
in Dual
Jurisdictions
Registration of Mexican Child
Support Judgments in
California under UIFSA


Family Code Section 4951 (UIFSA)
Fill out form Judicial Council Form FL-570 and
Registration Statement form OMB 0970 – 0085.
http://www.courtinfo.ca.gov/forms/fillable/fl570.pdf
http://www.acf.hhs.gov/programs/cse/forms/OMB-0970-0085-R.pdf



A letter of transmittal or letter rogatory from Mexico
requesting registration and enforcement (in English)
Two copies of the order to be registered (including
one certified)
The name of the obligor and if known: obligor’s SSN,
employer or any other source of income a description.
(Comment: where does that go?)
Process of Registration of Child
Support Judgment
Once the petition is filed, the
clerk will mail the Respondent a copy
of the Notice of Registration
with a copy of all attachments
File judicial form FL-570, with the
Registration form and all the
necessary attachments and judicial
Form FL-575 (Request for
Hearing Regarding
Registration Of Support Order)
The Respondent has 25 days from
the date the notice was mailed
to contest the validity of the
registered order by filing Judicial
Form FL-575 Hearing Regarding
Registration of Support Order
If Respondent does not contest
the validity or enforcement of the
registered order the order will be
registered.
Contesting the Validity of an OutOf-State Child Support Order

Family Code §§ 4955, 4956

The obligor is not the person named in the
Registration Statement.

The court that issued the order did not have
personal jurisdiction over the respondent

The support order was obtained by fraud

The order has been stayed pending appeal
Registration of Mexican
Child Support Judgment in
California under UIFSA
Family Code § 3445 (UCCJEA)
Fill out form Judicial Council Forms FL-580, FL-105, FL-585
http://www.courtinfo.ca.gov/forms/fillable/fl580.pdf
http://www.courtinfo.ca.gov/forms/fillable/fl105.pdf
http://www.courtinfo.ca.gov/forms/fillable/fl585.pdf
A letter or other document requesting registration
(translated to English)
Two copies of the order to be registered (including one
certified)
The name and address of the person seeking registration
Process of Registration of a
Foreign Custody Judgment
Once the petition is filed, the
clerk will mail the Respondent a copy
of the Notice of Registration
with a copy of all attachments
File judicial form FL-580, with the
Registration form and all the
necessary attachments and judicial
Form FL-585 (Request for
Hearing Regarding
Registration Of Support Order)
The Respondent has 20 days from
the date the notice was mailed
to contest the validity of the
registered order by filing Judicial
Form FL-585 Hearing Regarding
Registration of Support Order
If Respondent does not contest
the validity or enforcement of the
registered order the order will be
registered.
Registration of Mexican
Divorce Judgments under UDRA
 Family Code § 2091 (UDRA).
 One of the parties has to be domiciled in the foreign
country at the time the proceeding for the divorce was
commenced.
 Foreign Acts are given full faith and credit as long as
are not contrary to the dispositions of the U.S.
Constitution. Family Code § 2093.
 No special proceeding for registration is necessary
unless there is something to be enforce. C.C.P. § 1913
Enforcement of California
Orders and Judgments in Mexico
LAWS REGULATING THE RECOGNITION AND ENFORCEMENT
OF FOREIGN JUDGMENTS IN MEXICO

The Inter-American Convention on Extraterritorial Validity of
Foreign Judgments and Arbitral Awards

The Inter-American Convention on Jurisdiction in the International
Sphere for the Extraterritorial Validity of Foreign Judgments

Mexico Federal Code of Civil Procedure (FCCP)

Code of Civil Procedure for the State of Baja California) Baja CA
CCP Section IV, Articles 585 – 594

International Reciprocity principle - UIFSA for Child Support
Cases
Conditions for Recognition and Enforcement of
Foreign Judgments under the FCCP

All requirements for letters rogatory must be satisfied

The court rendering the judgment had proper jurisdiction to
try the matter and to pass judgment on it.

Service of process on defendant has been made in due legal
form.

There must be no similar case in a Mexican court as result
of the same legal action

The judgment must not be contrary to Mexican public policy

The judgment must fulfill all the formal requirements to be
considered authentic (Apostille)
PROCEDURE FOR ENFORCEMENT OF FOREIGN
JUDGMENTS (“HOMOLOGACION DE
SENTENCIAS EXTRANJERAS)”
IN MEXICO ACCORDING TO THE FCCP
Once the petition is filed, the
parties involved are given
a 9 days period
to defend themselves against the
allegations
File a petition in the Family
law court, for the registration
and enforcement of a
foreign judgment know as
“Incidente de Homologación
de Sentencias Extrnajeras”
After the Court has heard the
allegations, the Court will
issue a judgment granting the
recognition and enforcement
or denying it.
An appeal process is also available
to both parties, for which a 5 day
period is granted
Registration and Enforcement of
Mexican Judgments in California

What could have been done in
Lacombe case?
Final Considerations
First: Verify that the judgment meets the conditions to be enforceable in
Mexico:
• The Court of origin had proper jurisdiction
• The judgment is res judicata
• No case is pending in Mexico involving the same parties/legal issues
• Judgment is not contrary to public policy in México
Secondly: Obtain a letter rogatory that meets all suggestions made earlier:
• General guidelines and information
• Statement from court to satisfy comity condition
• Statement proving that judgment is res judicata
• Statement giving full and specific powers to executing court
Final Considerations con’t


Third: Get all documents needed ready:

Letter rogatory

Judgment

Copy proving proper service of process

Copy proving that judgment is res judicata (if it is not included
in the letter rogatory)
Finally:

Authenticate all documents (Apostille);

Translate everything into Spanish; and

File it in the proper court in Mexico.
(Refer to Imperial local form for registration/enforcement)
Motion to Quash
Dual Jurisdiction Cases
Common issues in Imperial County  Prior judgment in Mexico, or
 Another action pending in Mexico
between the same parties on the
same cause – e.g., dissolution, UPA,
child support
Remedy: Motion to Quash
Memorandum of Points and
Authorities
Con’t Memorandum of Points and
Authorities
Memo of P’s & A’s



Self Help Guideline No. 16: “A court self
help-center may not create documents for
litigants that require strategic decision
making on behalf of litigants by self-help
center staff…”
OK - boilerplate, fillable form P’s & A’s
Use boxes to check
Refer to attached declaration written by
litigant
P’s & A’s con’t


Prior judgment of dissolution: no
longer any marital res in second in
time served jurisdiction. See
Zierenberg – prior Puerto Rican disso
Pending dissolution in Mexico –
invokes the court’s discretion under
theory of comity; consider abatement
of action
P’s & A’s con’t


Mexico is a “state” under UCCJEA (Fam.
Code 3400 et seq.)
Prior Mexican judgment of child custody
should be recognized if made in substantial
conformity with UCCJEA
Similar rule for pending child custody case
in Mexico unless temporary emergency
jurisdiction under FC 3424
P’s & A’s con’t


Mexico is a “state” under UIFSA
because California (rather than U.S.)
has reciprocal agreement with Mexico
Child support judgment or pending
action in Mexico should be recognized
However voluntary payments
(comprobante) not a bar to CA case
Contacts Directory
Aguascalientes judicial web page
www.poderjudicialags.gob.mx/
Baja California Judicial web page
www.poder-judicial-bc.gob.mx
Baja California Sur Judicial web page
http://www.tribunalbcs.gob.mx/
Campeche judicial web page
http://www.tribunalcampeche.gob.mx/
Chiapas judicial web page
http://www.poderjudicialchiapas.gob.mx/ Chiapas judicial web page
Chihuahua Judicial web page
http://www.stj.gob.mx/
Coahuila judicial web page
http://www.poderjudicialcoahuila.gob.mx/pag/TSJ/index.php
Colima Judicial web page
http://stj.col.gob.mx/
Distrito Federal web page
http://www.poderjudicialdf.gob.mx/
Durango judicial web page
www.tsjdgo.gob.mx/
Estado de Mexico judicial web page
http://www.pjedomex.gob.mx/
Guanajuato judicial web page
www.poderjudicial-gto.gob.mx/
Guerrero judicial web page
www.tsj-guerrero.gob.mx/
Hidalgo judicial web page
http://www.pjhidalgo.gob.mx/
Jalisco Judicial web page
http://www.stjjalisco.gob.mx/
Michoacan judicial web page
http://www.tribunalmmm.gob.mx/
Morelos judicial web page
www.tsjmorelos.gob.mx/
Nayarit judicial web page
www.tsjnay.gob.mx/
Con’t Contacts Directory
Nuevo Leon judicial web page
www.pjenl.gob.mx/
Oaxaca Judicial web Page
http://www.tribunaloax.gob.mx/
Puebla judicial web page
http://www.htsjpuebla.gob.mx/home.html Puebla Judicial web page
Queretaro Judicial web page
http://www.tribunalqro.gob.mx/
Quintana Roo judicial web page
www.tsjqroo.gob.mx/
San Luis Potosi web judicial page
http://www.stjslp.gob.mx/
Sinaloa Judicial web page
http://www.stj-sin.gob.mx/
Sonora Judicial web page
http://www.stjsonora.gob.mx/
Tabasco judicial web page
http://www.tsj-tabasco.gob.mx/
Tamaulipas Judicial web page
http://www.pjetam.gob.mx/
Tlaxcala judicial web page
www.tsjtlaxcala.gob.mx/
Veracruz Judicial web page
http://www.pjeveracruz.gob.mx/
Yucatan judicial web page
http://www.tsjyuc.gob.mx/
Zacatecas Judicial web page
http://www.tsjzac.gob.mx/2010/