Bill Text: MS HB735 | 2011 | Regular Session | Engrossed
Bill Title: Uniform laws; enact Uniform Foreign-country Money Judgments Recognition Act.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2011-03-01 - Died In Committee [HB735 Detail]
Download: Mississippi-2011-HB735-Engrossed.html
MISSISSIPPI LEGISLATURE
2011 Regular Session
To: Judiciary A
By: Representative Moak
House Bill 735
(As Passed the House)
AN ACT TO CREATE THE UNIFORM FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT; TO DEFINE CERTAIN TERMS; TO PROVIDE FOR THE APPLICABILITY OF THIS ACT; TO PROVIDE STANDARDS FOR RECOGNITION OF FOREIGN-COUNTRY JUDGMENTS; TO PROVIDE FOR JURISDICTION; TO PROVIDE PROCEDURE FOR THE RECOGNITION OF FOREIGN-COUNTRY JUDGMENTS; TO PROVIDE FOR THE EFFECT OF A JUDGMENT; TO ALLOW A STAY OF PROCEEDINGS; TO PROVIDE FOR LIMITATION OF ACTIONS; TO PROVIDE FOR UNIFORMITY IN INTERPRETATION; TO BRING FORWARD SECTIONS 11-31-1, 11-31-2, 11-31-3, 11-31-5, 11-31-7, 11-31-9 AND 11-31-11, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF AMENDMENT; TO AMEND SECTION 15-1-45, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. SHORT TITLE. This act may be cited as the Uniform Foreign-Country Money Judgments Recognition Act.
SECTION 2. DEFINITIONS. In this act: (1) "Foreign country" means a government other than:
(A) The United States;
(B) A state, district, commonwealth, territory, or insular possession of the United States; or
(C) Any other government with regard to which the decision in this state as to whether to recognize a judgment of that government's courts is initially subject to determination under the Full Faith and Credit Clause of the United States Constitution.
(2) "Foreign-country judgment" means a judgment of a court of a foreign country.
(a) Except as otherwise provided in subsection (b), this act applies to a foreign-country judgment to the extent that the judgment:
(1) Grants or denies recovery of a sum of money; and
(2) Under the law of the foreign country where rendered, is final, conclusive, and enforceable.
(b) This act does not apply to a foreign-country judgment, even if the judgment grants or denies recovery of a sum of money, to the extent that the judgment is:
(1) A judgment for taxes;
(2) A fine or other penalty; or
(3) A judgment for divorce, support, or maintenance, or other judgment rendered in connection with domestic relations.
(c) A party seeking recognition of a foreign-country judgment has the burden of establishing that this act applies to the foreign-country judgment.
SECTION 4. STANDARDS FOR RECOGNITION OF FOREIGN-COUNTRY JUDGMENT.
(a) Except as otherwise provided in subsections (b) and (c), a court of this state shall recognize a foreign-country judgment to which this act applies.
(b) A court of this state may not recognize a foreign-country judgment if:
(1) The judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law;
(2) The foreign court did not have personal jurisdiction over the defendant; or
(3) The foreign court did not have jurisdiction over the subject matter.
(c) A court of this state need not recognize a foreign-country judgment if:
(1) The defendant in the proceeding in the foreign court did not receive notice of the proceeding in sufficient time to enable the defendant to defend;
(2) The judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case;
(3) The judgment or the cause of action on which the judgment is based is repugnant to the public policy of this state or of the United States;
(4) The judgment conflicts with another final and conclusive judgment;
(5) The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be determined otherwise than by proceedings in that foreign court;
(6) In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action;
(7) The judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment; or
(8) The specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.
(d) A party resisting recognition of a foreign-country judgment has the burden of establishing that a ground for nonrecognition stated in subsection (b) or (c) exists.
SECTION 5. PERSONAL JURISDICTION.
(a) A foreign-country judgment may not be refused recognition for lack of personal jurisdiction if:
(1) The defendant was served with process personally in the foreign country;
(2) The defendant voluntarily appeared in the proceeding, other than for the purpose of protecting property seized or threatened with seizure in the proceeding or of contesting the jurisdiction of the court over the defendant;
(3) The defendant, before the commencement of the proceeding, had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved;
(4) The defendant was domiciled in the foreign country when the proceeding was instituted or was a corporation or other form of business organization that had its principal place of business in, or was organized under the laws of, the foreign country;
(5) The defendant had a business office in the foreign country and the proceeding in the foreign court involved a [cause of action] [claim for relief] arising out of that operation.
(b) The list of bases for personal jurisdiction in subsection (a) is not exclusive. The courts of this state may recognize bases of personal jurisdiction other than those listed in subsection (a) as sufficient to support a foreign-country judgment.
SECTION 6. PROCEDURE FOR RECOGNITION OF FOREIGN-COUNTRY JUDGMENT.
(a) If recognition of a foreign-country judgment is sought as an original matter, the issue of recognition shall be raised by filing an action seeking recognition of the foreign-country judgment.
(b) If recognition of a foreign-country judgment is sought in a pending action, the issue of recognition may be raised by counterclaim, cross-claim, or affirmative defense.
SECTION 7. EFFECT OF RECOGNITION OF FOREIGN-COUNTRY JUDGMENT.
If the court in a proceeding under Section 6 finds that the foreign-country judgment is entitled to recognition under this act then, to the extent that the foreign-country judgment grants or denies recovery of a sum of money, the foreign-country judgment is:
(1) Conclusive between the parties to the same extent as the judgment of a sister state entitled to full faith and credit in this state would be conclusive; and
(2) Enforceable in the same manner and to the same extent as a judgment rendered in this state.
SECTION 8. STAY OF PROCEEDINGS PENDING APPEAL OF FOREIGN-COUNTRY JUDGMENT.
If a party establishes that an appeal from a foreign-country judgment is pending or will be taken, the court may stay any proceedings with regard to the foreign-country judgment until the appeal is concluded, the time for appeal expires, or the appellant has had sufficient time to prosecute the appeal and has failed to do so.
SECTION 9. STATUTE OF LIMITATIONS.
An action to recognize a foreign-country judgment must be commenced within the earlier of the time during which the foreign-country judgment is effective in the foreign country or fifteen (15) years from the date that the foreign-country judgment became effective in the foreign country.
SECTION 10. UNIFORMITY OF INTERPRETATION.
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
SECTION 11. SAVING CLAUSE.
This act does not prevent the recognition under principles of comity or otherwise of a foreign-country judgment not within the scope of this act.
SECTION 12. Section 11-31-1, Mississippi Code of 1972, is brought forward as follows:
11-31-1. The chancery court shall have jurisdiction of attachment suits based upon demands founded upon any indebtedness, whether the same be legal or equitable, or for the recovery of damages for the breach of any contract, express or implied, or arising ex delicto against any nonresident, absent or absconding debtor, who has lands and tenements within this state, or against any such debtor and persons in this state who have in their hands effects of, or are indebted to, such nonresident, absent or absconding debtor. The court shall give a decree in personam against such nonresident, absent or absconding debtor if summons has been personally served upon him, or if he has entered an appearance.
SECTION 13. Section 11-31-2, Mississippi Code of 1972, is brought forward as follows:
11-31-2. (1) Upon the filing of the bill of complaint, the complainant may apply for an order of attachment by presenting to the chancellor the bill, and an affidavit which shall include the following:
(a) A statement that the action is one described in Section 11-31-1, and is brought against a defendant described in said Section 11-31-1.
(b) A detailed statement of the facts and grounds which entitle the complainant to an order of attachment including a statement of the specific reasons why the complainant's ability to recover the amount of his claim may be endangered or impeded if the order of attachment is not issued.
(c) A statement of the amount the plaintiff seeks to recover.
(d) A statement that the complainant has no information or belief that the claim is discharged in a proceeding under the Federal Bankruptcy Act (11 USCS, Section 1, et seq.), or that the prosecution is stayed in a proceeding under the Federal Bankruptcy Act.
(e) A description of the property to be attached under the writ of attachment and a statement that the complainant is informed and believes that such property is not exempt from attachment or seizure under Section 85-3-1.
(f) A listing of other persons known to the complainant who may have an interest in the property sought to be attached together with a description of such interest.
(2) The chancellor shall examine the affidavit and bill of complaint and may, in term time or in vacation, issue an order of attachment with respect to such property under the following conditions:
(a) The chancellor finds that unless the order of attachment is issued, the complainant's ability to recover the amount of his claim may be significantly impaired or impeded.
(b) The chancellor finds that the affidavit establishes a prima facie case demonstrating the complainant's right to recover on his claim against the defendant.
(c) The complainant gives security in an amount satisfactory to the chancellor to abide further orders of the court and to protect the defendant from injury should the action of attachment be judicially determined to have been wrongfully brought.
(3) (a) If such an order of attachment is issued, the defendant shall, upon request, be entitled to an immediate post-seizure hearing to seek dissolution of the order of attachment. Such post-seizure hearing shall have precedence on the docket of the chancery court over all other matters except similar matters previously filed. At such hearing, the chancellor shall order dissolution of the order of attachment unless the complainant establishes by satisfactory proof the grounds upon which the order was issued, including the existence of a claim as described in Section 11-31-1, and the impairment or impediment which a failure to continue the attachment could bring to the complainant's ability to recover the amount of such debt. An appearance by the defendant at the post-seizure hearing shall be considered a special appearance and not a general appearance for purposes of personal jurisdiction over the defendant.
(b) In the alternative, a debtor may regain immediate possession of the property attached by giving security satisfactory to the chancellor in an amount equal to one hundred twenty-five percent (125%) of the value of the property attached or one hundred twenty-five percent (125%) of the amount of the claim, whichever is less.
(c) If the chancellor should determine that the attachment was not brought in good faith, then the chancellor in his discretion may award actual damages (including reasonable attorney's fees) to the defendant.
SECTION 14. Section 11-31-3, Mississippi Code of 1972, is brought forward as follows:
11-31-3. When a bill shall be filed for an attachment of the effects of a nonresident, absent or absconding debtor in the hands of persons in this state, or of the indebtedness of persons in this state to such nonresident, absent or absconding debtor, it shall be sufficient to bind such effects or indebtedness that the order of attachment together with a copy of the bill of complaint and affidavit be served upon the persons possessing such effects or owing such indebtedness.
SECTION 15. Section 11-31-5, Mississippi Code of 1972, is brought forward as follows:
11-31-5. If the land of the nonresident, absent or absconding debtor be the subject of such suit, and an order of attachment be issued, the order shall be levied by the sheriff or other officer as such writs of law are required to be levied on land, and shall have like effect.
SECTION 16. Section 11-31-7, Mississippi Code of 1972, is brought forward as follows:
11-31-7. Writs of sequestration may be issued for personal property in such cases as in others.
SECTION 17. Section 11-31-9, Mississippi Code of 1972, is brought forward as follows:
11-31-9. The nonresident, absent or absconding debtor shall be made a party to such suit by publication of summons as in other cases, and may appear and plead, demur or answer to the bill without giving security. If such debtor fails to appear, the court shall have power to make any necessary orders to restrain the defendants within this state from paying, conveying away or secreting the debts by them owing, or the effects in their hands belonging to, the nonresident, absent or absconding defendant, and may order such debts to be paid or such effects to be delivered to the complainant on his giving security for the return thereof in such manner as the court may direct.
SECTION 18. Section 11-31-11, Mississippi Code of 1972, is brought forward as follows:
11-31-11. If a decree be rendered in such case without the appearance of the absent debtor, the court, before any proceedings to satisfy said decree, shall require the complainant to give security for abiding such further orders as may be made, for restoring of the estate or effects to the absent defendant, on his appearing and answering the bill within two (2) years; and if the complainant shall not give such security, the effects shall remain under the direction of the court, in the hands of a receiver, or otherwise, for such time, and shall then be disposed of as the court may direct.
SECTION 19. Section 15-1-45, Mississippi Code of 1972, is amended as follows:
15-1-45. Except as otherwise provided is Sections 1 through 11 of House Bill No.____, 2011 Regular Session, all actions founded on any judgment or decree rendered by any court of record without this state shall be brought within seven (7) years after the rendition of such judgment or decree, and not after. However, if the person against whom such judgment or decree was or shall be rendered, was, or shall be at the time of the institution of the action, a resident of this state, such action, founded on such judgment or decree, shall be commenced within three (3) years next after the rendition thereof, and not after.
SECTION 20. This act shall take effect and be in force from and after July 1, 2011, and shall apply to all actions commenced on or after that date in which the issue or recognition of a foreign-country judgment is raised.
