“…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 AuthorityProcedure

Issuance of Letter Rogatory by requesting authority

Send to Central AuthorityU.S. Department of State

(Process Forward International)

U.S. Department of State Verifies the LR. If satisfies all

Requirements it is forwarded to Mexico’sCentral Authority - Ministry of

Foreign Affairs

Letter Rogatory is received by Mexico’s Central Authority and

Forwarded it to the proper judicial Authority in the Republic of Mexico

Letter Rogatory is received by the Proper Judicial Authority, who executes it,

Returns it to Mexico Central Authority.

Judicial ChannelsProcedure

Issuance of Letter Rogatory by requesting authority

Letter Rogatory is received by Mexico’s Judicial Authority and processed

through the clerk of the courtroom

Letter Rogatory carried by the interestedparty to the proper judicial authority

in Mexico

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 Optionsfor Sending Letters Rogatory

May be transmitted by interested party: To Central Authority Through diplomatic or consular agents Through judicial channels States parties in “economic integration

systems” may agree directly between themselves upon special methods and more expeditious methods

a copy

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

File judicial form FL-570, with the Registration form and all the

necessary attachments and judicialForm FL-575 (Request for

Hearing Regarding Registration Of Support Order)

Once the petition is filed, the

clerk will mail the Respondent a copy of the Notice of Registration

with a copy of all attachments

The Respondent has 25 days from the date the notice was mailed

to contest the validity of theregistered order by filing JudicialForm FL-575 Hearing RegardingRegistration of Support Order

If Respondent does not contestthe validity or enforcement of theregistered order the order will be

registered.

Contesting the Validity of an Out-Of-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

Family Code § 3445 (UCCJEA)

Fill out form Judicial Council Forms FL-580, FL-105, FL-585http://www.courtinfo.ca.gov/forms/fillable/fl580.pdfhttp://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

Registration of Mexican Child Support Judgment in

California under UIFSA

Process of Registration of a Foreign Custody Judgment

File judicial form FL-580, with the Registration form and all the

necessary attachments and judicialForm FL-585 (Request for

Hearing Regarding Registration Of Support Order)

Once the petition is filed, the

clerk will mail the Respondent a copy of the Notice of Registration

with a copy of all attachments

The Respondent has 20 days from the date the notice was mailed

to contest the validity of theregistered order by filing JudicialForm FL-585 Hearing RegardingRegistration of Support Order

If Respondent does not contestthe validity or enforcement of theregistered order the order will be

registered.

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

Registration of Mexican Divorce Judgments under UDRA

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

File a petition in the Familylaw court, for the registration

and enforcement of a foreign judgment know as

“Incidente de Homologaciónde Sentencias Extrnajeras”

Once the petition is filed, the parties involved are given

a 9 days period to defend themselves against the

allegations

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 availableto 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 DirectoryAguascalientes 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 DirectoryNuevo 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/