While Article IV, Section 1 of the United States Constitution (the “Full Faith and Credit Clause”) provides a very clear foundation for the uniform enforcement and collection of judgments, there are still numerous pitfalls and procedural hurdles to navigate when one domesticates a judgment from one state in another state.
Once a lender obtains a judgment in one state, and determines that the judgment debtor has assets in another state or has left the state of the original judgment, it may be necessary to domesticate the judgment in another state in order to make any meaningful collection of the amount due. While a mistake in the domestication process may not bar a creditor’s claim, it can result in substantial delay in obtaining a valid and enforceable judgment in the state where the debtor or the debtor’s assets are located. This delay could affect priority among competing creditors or may allow time for a debtor to transfer or dispose of assets.
General Procedure for Domestication of a Judgment
Forty-seven states, as well as the District of Columbia and the U.S. Virgin Islands have substantially adopted the Revised Uniform Enforcement of Foreign Judgments Act of 1964 (the “Act”). The specific rules in each state vary, but the general procedure for domestication of a judgment is for the judgment creditor, or its counsel, to file with the clerk’s office of the court in the new state a specially certified copy of the foreign judgment along with an affidavit setting forth the name and last known post office address of the judgment debtor and the judgment creditor. The Clerk then mails notice of the filing of the foreign judgment, including the name and address of the creditor or the creditor’s attorney, to the debtor and makes note of the mailing in the docket.
The Act contains an optional provision providing for a time period following the notice of the filing of the foreign judgment prior to the expiration of which the judgment creditor may not execute or enforce the judgment against the debtor. Most states have enacted this provision. The time period ranges from five to sixty days in those states enacting this provision, but twenty to thirty days is most common. Assuming that the debtor does not challenge the judgment, the time and expense associated with filing and/or litigating a second case have been eliminated for the creditor. If the judgment debtor does challenge the domestication of the judgment, the matter may, depending on the defenses asserted, be set for trial.
Variations Among the States
While the general domestication procedure is similar, there are substantive variations among some of the states. Some of the variations are highlighted below, however, this is not an exclusive list and local counsel in the state of domestication should be consulted to determine the specific rules and procedures applicable to each case.
Some states exclude from the definition of a “foreign judgment” any judgment obtained by default in appearance or by confession of judgment. For example, to enforce a judgment obtained by default in appearance or through a confession of judgment provision in Connecticut or New York, the judgment creditor may actually be required to file an original action and not simply utilize the Act. Accordingly, when a lender knows that a defaulted borrower has assets in New York or Connecticut, it may elect not to confess judgment or may, where possible, attempt to avoid a judgment based on a default in appearance by the debtor.
Other states have additional procedures for the domestication of a judgment based on consumer loans. New Jersey, for example, prohibits the enforcement through the Act of a foreign judgment which is based on a consumer loan if the loan contains any terms or provisions prohibited by the New Jersey Consumer Finance Licensing Act.
California, Massachusetts, and Vermont have not adopted the Act. California has adopted a procedure substantially similar to the Act; however, the California statute contains more explicit procedural details and distinguishes between procedures for the enforcement of foreign judgments based on consumer versus commercial obligations. In Massachusetts or Vermont, a judgment creditor must file an original action to have any foreign judgment enforced in those states. In Massachusetts, execution on a foreign judgment may be issued only after the filing of a transcript of the record of the foreign judgment with the Court. In Vermont, the recordation of a triple seal authenticated copy of the foreign judgment serves as only prima facie evidence of the judgment.
Knowing the state where the defaulted borrower’s assets are or may be located can make a difference in determining when, where and how a lender should pursue money judgment and collection. Accordingly, a lender should provide as much information to its legal counsel about the borrower and their potential assets and location of same as early as practicable in the collection process. This article provides a very broad overview of the law on domestication of foreign judgments and should not be considered an exhaustive review or legal advice.