Guatemala and Enforcement of Foreign Judgements

Executive Summary What we are going to discuss here is whether or not a creditor can come to Guatemala with a judgment from a foreign (Non Guatemala) court and enforce it or make it collectible in Guatemala. We will look at the complications involved and the chances of success which are miniscule at best. I would like to point out that this is a topic not covered by our competition. There are collection law firms that discuss international judgement collection but they are trying to sell their services. In spite of this I have never seen one collection law firm getting enthusiastic about collecting foreign judgements. It is best done through a treaty which Guatemala does not have with any country. We will discuss the matter in depth below.
What is a Judgement A judgement is a decision from a court based on a trial or it could be based on a summary judgment where there was not trial held because the odds of success for the defendant were so small the court just goes ahead and railroads him. Sometimes this happens because the defendant can not afford a legal defense. This is prevalent in the USA. In this discourse we are addressing judgments for money damages. A judgement can have other aspects to it like an eviction proceeding ordering one to leave a house. It does not matter if it is a local court or a national court for this discourse. This is because Guatemala has no treaties for enforcement of foreign judgments but more on this later. The court would need to be contained in a country that Guatemala has diplomatic relations with. Guatemala also insists that the country of the judgement allows Guatemala judgements to be enforced in that country.
What is Not a Judgement A tax lien is not a judgment. Tax liens can come from local or national governments. There is normally no trial preceding a tax lien. There was no judge, no jury, no due process, no right to defend yourself, no attorney present for the defendant, no right to examine your accuser, no chance of jury nullification, etc. This is a government administrative procedure that is not enforceable offshore in other countries. A tax lien would need to be reduced to a judgement by filing a lawsuit in a court of appropriate jurisdiction in the home country. It would be like any other lawsuit. The defendant would have the right to present a defense and have a jury trail. Such a judgement would also then be dischargeable in an ordinary bankruptcy case. Tax liens are practically never converted into a judgement for these reasons and of course the expense involved, time delay to go to trail and so forth.
Guatemala Has No Treaty for the Enforcement of Foreign Judgements It is good that Guatemala has no such treaty. If a treaty like this was present the process of collecting a foreign judgment would be simplified. The judgment itself would be sufficient evidence to proceed with collection. With Guatemala, foreign judgements are anything but a cost effective easy thing to collect on.
Guatemala Corporations and Foreign Judgements Before we get into the ins and outs of the nightmares associated with collecting foreign judgments in Guatemala lets look at the initial problem a judgment creditor would face. We always have our clients use corporations for asset protection. This applies to banking, real estate, cars etc. We prefer to start with fresh corporations formed in the jurisdiction as long as they are anonymous bearer share corporations. Guatemala has very anonymous bearer share corporations. The names of the owners of the corporation do not appear in any public registry, database and the government does not know who owns the corporation. In places like the USA where the legal system has run amuck you will hear a lot of talk concerning piercing the corporate veil. This piercing the corporate veil tactic is nasty and effective in the USA. Try it in Guatemala and you will fail and have one angry judge to deal with who will be less than appreciative of your attempts to import sleazy legal tactics from the USA into his or her courtroom. The corporate veil is not going to be pierced for foreign cvil judgement collection matters. So how does the creditor attack real estate or a bank account owned by a corporation in Guatemala? He doesn’t! You are the owner of the corporation but he does not know that and cannot prove that. Ownership of Guatemala corporations is not in any public registry or database. Going to court and saying well the judgment debtor wired funds from his home country bank account to a bank account owned by this corporation, is not going to prove a single thing in Guatemala regarding corporate ownership. The judgment debtor may have invested in this corporation, he may have bought real estate from this corporation or bought a boat, a plane a car, etc. It does not prove any ownership. The judgement creditor is not going to be able to get into any Guatemala banking records using a foreign judgment as grounds. Guatemala has serious bank secrecy. You must understand that in Guatemala a corporation is a free standing judicial person (artificial person) that has its own assets and liabilities. Your liabilities are not the liabilities of the corporation. This means personal debts do not transfer over to a corporation.
Fraudulent Conveyance The catchall used to attack offshore bank accounts is fraudulent conveyance. A fraudulent conveyance references activity where funds or assets were removed from a jurisdiction to prevent a creditor from recovering the debt. The term can also apply to transferring title of real estate or a car to another to keep it from being attached by a creditor. Panama allows a creditor to pursue a fraudulent conveyance action based on a foreign judgment and this even applies to their foundations. As a comparison Guatemala is not a fraudulent conveyance friendly jurisdiction. Such cases are seldom ever heard of in Guatemala because the chances of success are extremely slight. The plaintiff would need to show that the transfer was specifically designed or intended to remove the assets from the reach of the creditor. If the defendant could show this was not the case then there is no fraudulent conveyance. The money could have been moved to say a Guatemala corporation to pay for services, goods, make an investment, buy a residence, invest in real estate, buy a boat, and so forth. Please bear in mind that in Guatemala the creditor is in the dark. He cannot just subpoena bank records like in other countries. He has no idea who owns the corporation. There are a lot of just about insurmountable obstacles in the path the creditor has to follow. This is why we do not really see these cases in Guatemala.
Foreign Judgement Enforcement Complications in Guatemala There are a lot of conditions that need to be met to enforce a judgment in Guatemala from another country.
Default judgments are not enforceable in Guatemala. The defendant must have been served personally. This means a live process server gave them the legal papers. If the service was by mail, by courier, by publication it invalidates the entire lawsuit and judgement as far as Guatemala is concerned. Dropping the papers on the doorstep or taping them to the door is not going to work. This right off the top eliminates a large amount of judgements.
The judgment must be final in that there is no more room for appeals. This is usually going to mean a few months in most cases.
The court that issued the judgment has to have had proper jurisdiction over the matter. Frivolous cases filed in foreign jurisdictions with incorrect venue or authority are not going to be enforceable. The debtor can always argue that the jurisdiction or authority the court asserted is incorrect. This can then make it a triable issue of fact in the Guatemala courts. The defendant would try to get the plaintiff to retry the entire case in Guatemala if he could not find another way to dispose of the matter. To do this means two sets of lawyers for the plaintiff, one in Guatemala and one from the foreign country. Think big money. Remember that Guatemala has no treaties for the enforcement of foreign judgments. This opens up the playing field to counter attack the plaintiff attempting to collect the judgement. When there is a treaty the judgment itself stands as admissible evidence and the grounds for objecting are most limited.
There is no enforcement if no such claim would be possible under Guatemala law. Guatemala will refuse to enforce the foreign money judgment if the claim on which the foreign judgment is based could not have been brought in Guatemala. The foreign case has to be consistent with Guatemala law. Guatemala law is not as crazy as USA, UK law. If you were sued for sending out faxes that were unsolicited, this judgment would be void in Guatemala since they have no such law in Guatemala. Many USA lawsuits are for civil violations that are absent from Guatemala law and thus not enforceable in Guatemala. This means the foreign attorney will have to retain foreign counsel to review the case and see it is consistent with Guatemala law. Can be expensive. He may have to have the entire matter translated into Spanish by a certified translator at a cost of $10 to $15 a page. Some cases are hundreds of pages. Then the Guatemala lawyer has to read the case which means billable hours. He will ask questions to the foreign attorney so now we get into double billable hours. In any event to enter the judgment into the Guatemala court system in an effort to collect there would need to be a translation of the judgment into Spanish. Then when the debtor started making objections the entire case file would most likely need to be translated into Spanish.
If the judgment was for contempt of court it makes the judgment not valid in Guatemala. This sort of judgment would not be collectible in Guatemala.
The judgment has to not be for default. In other words if you failed to respond to a foreign court action and were in domicile in Guatemala and they got a summary judgment that would not be a valid judgment.
More Foreign Judgment Collection Obstacles in Guatemala The creditor wishing to collect on a foreign judgment in Guatemala is basically on a financial mission, to collect funds. His path is like walking through a minefield. He can hit a number of unexpected or hidden tactics presented by the debtor that will make a financial recovery very unlikely.
First, we have to look at the appeals process open to the defendant. These are the things a creditor will be advised to consider before proceeding with an expensive and time consuming foreign judgment matter in Guatemala. Please bear in mind the defendant (debtor) can appeal any negative decision from a lower court two ways. The defendant can appeal to the Supreme Court claiming the law was not followed correctly applying any of the above noted objections, or all of them. He can also claim procedures were not followed correctly. He can claim the case is not consistent with Guatemala law. He can attack the way he was served. There are many things he can do. He can even file a counter claim against the creditor. The other appeals option is to appeal to the special Constitutional Courts Guatemala has to just decide constitutional issues. How hard would it be to argue that the defendant had some constitutional rights violated in the process somewhere.
If all that fails after years of waiting for the process to work its way through the courts, then there is the bankruptcy option. Guatemala has a complex bankruptcy court system that could be utilized for shelter from creditors. Using these appellate processes is going to run up the bill for the plaintiff substantially. Without the appeals system, the time required for cases can run up to the 3-5 year mark easily. Then add in appeals. and the bankruptcy for even more years. The plaintiff could conceivably go broke or die of old age before the appeals process runs out. They might recover nothing especially if a bankruptcy is used. The plaintiff might never prevail. The expenses involved could be more than the amount of the judgment. By the time all the appeals are used, the time limit for the judgment may have expired (7-10 years usually) and then the case could be dismissed because the judgment is not longer valid, thus not enforceable. And on and on it goes. Such collection efforts are indeed rarely ever seen in Guatemala.
Summary If you have read this you are looking for a secure offshore asset protection jurisdiction and structure. We have several excellent options. Please bear in mind the perfect jurisdiction and structure does not exist. There is always going to be a give and take scenario. We have managed to isolate a few excellent options but there is no perfect solution that meets the needs of everyone. We do try though!

Different between immigration and non-immigration visa

The foreign citizen interested to live in the USA permanently to work or to live. An immigrant visa gives all privileges like a normal US citizen. The non-immigrant visa issued to foreign citizens for temporary bases like travelling, tourism, business and education with limited privileges. The US consulate provides the Visa either immigration or non-immigration visa is depend upon the purpose. Non-immigrant visa is granted by the Department of Homeland Security Office.

Present Non immigration visa has more than twenty non-immigrant visas for temporary usage. Depend upon the reason US consulate temporarily provides appropriate non Immigration visas. Some of the non-immigrant visas: >

A transit C-1 visa is a temporary transit visa when you are going to another foreign country through the United States and your final destination is not a United States.

The B1 visa is a temporary visiting visa for either business or work and come back to your home country after completing work. B2 visa is a tourist visa with pleasure. With pleasure you go to the USA for tourism purpose like a honeymoon or tourism and more.

The F1 visa: is study visa. The student interested to go to the USA for the higher education purpose and come back to their motherland after completing your education. You must qualify TOFEL test to get F1 visa.

In this way have a lot of non-immigration visas. All non-immigrant visas are having a temporary limited period of time. Mostly US Department provides Australian (E-3) visa, border crossing card for Mexican travels.

Immigration visas: The visa for Live and Work in the USA permanently without any restrictions as a home country is legally called an Immigration visa.

The first step to get immigration visa is Visa sponsors petition to the USCIS for permanent residency. (United Stages Citizenship and Immigration Services simply called USCIS) Once USCIS has approved that petition, then it is forward to the NVC (National Visa Centre) further process to check petitioner is eligible or not.

The NVC center first instructs and analyzes the required applications to complete the visa application. Green card holders are the best example for immigration visa holders.

Most of the immigration categories are family sponsorship and employment sponsorship. It is also possible to upgrade non-immigrant visa holders as immigration visa holders. You can get non immigrant visas easily and quickly, but immigration visas are taken long period to get a green card.

Each and every visa have a certain limited number of visas either immigration or non-immigrant visas. If petitions are crossed the number of petitions, that petition is under waiting list and it will delay to approve that petition.

More info contact Immigration Attorney or at call 718-263-5999 for a FREE CONSULTATION.

Personal Injury lawyer explaining protection mechanism

Injury is part of our life whether we stay a home or outdoors. You will hardly find any person on the planet without experience of childhood injuries. Those injuries were the result of our energy as a child and sometimes for being more adventurous. Those injuries were never fought in a court room. This doesn’t imply that injuries aren’t tried in court.

Here in USA you have a specific branch of law specializing in injuries of different kind. This branch of law is known as personal injury law and the legal experts in this law are known as personal injury lawyer. This branch of law is not of national importance like aviation law, maritime law, etc.

As a result it is not the concern of the federal courts and the federal government. There are several types of sub-categorization under personal injury law:

Product liability

Driving under Influence

Animal attack

Fall related injury

Medical malpractice

As the law falls under the jurisdiction of state courts there is going to be variations in the law. As a result you will often find varying punishment for same offence in two different states. The Statute of Limitation which prevents an offender from being tried after the passage of a particular time different too. Similarly, there is variation in the statute of limitation for the same offence in different state.

In any lawsuit the presence of evidence and how they are being put forward as the case progresses determines the success of the case. There are several procedural variations while filing a particular type of lawsuit. One can cite the example of medical malpractice lawsuit. In order to authenticate the validity of the lawsuit, one needs to file a testimony from the medical practitioner.

Driving Under Influence (D.U.I) of drugs may result in both criminal and civil procedure for conviction. This can happen in case of wrongful death caused by driving under influence. In case of animal attack a determination requires whether the victim has provoked the animal to attack or not. There are certain common defense techniques used by lawyers to attack as well as to defend. In medical malpractice lawsuit defense claims that the injury was preexisting, this is quite common.

A Tampa resident will have to initially file lawsuit in local court. In case of consultancy or for filing a lawsuit approach a local Tampa Injury Attorney. This should be done to protect you before the offender gets cover under Statute of Limitation.

If you are searching for a lawyer practicing medical malpractice, please visit the Brooklyn Lawyer Directory to get the required information.

Things not to do when selecting immigration attorney

Thousands of individuals will obtain a greatly-desired permission or visa to stay and work in the USA, but millions more will not. In most of the cases, the difference between a -acceptance- and a -deny- lies not in the facts of your application, but in how expertly and smartly you work throughout the entire immigration process. They secret to win entry to the USA is, find an immigration law expert who very well how to do it.

No matter whether you are hiring a deportation layer, employment lawyer or business immigration attorney, the question that is how to find the best for your case from the crowd of immigration lawyers who are promising to provide their best services? There is no exact formula to address this question. But, avoiding some common mistakes (that we will discuss in the next section of this document), you can find the best legal representative for your case.

Don’t choose a legal representative who doesn’t have enough experience to work in law field: The most important thing to consider when selecting immigration attorney for your case is his/ her experience of working in immigration stream. If you want your case to be represented in best way, your potential attorney must have appropriate skills and knowledge which can only be attained through real world experience. -In-depth- learning of the complicated immigration ropes takes at least five years of work in this field. So, hire a lawyer who has more than five years of experience of flying his/her services in immigration stream.

Don’t choose a lawyer who does not have specialization in immigration law: United States Citizenship and Immigration Services usually make changes in the existing rules or also announce new rules to be followed to obtain visa. Attorneys who along with immigration law also practice in other streams of law may be deprived of current knowledge of immigration law. You need a lawyer who is informed with these changes in the immigration rules and other related things so that your visa request is not rejected just because of your attorneys’ lack of knowledge.

Don’t make selection of your lawyer depending upon the size of his/her fees: Low or high charges by a lawyer is not enough to get the clue of the ability of your potential legal expert. Because, sometime a lawyer with less experience offer low charges and present you the expected results. Also, some charges starts with low but become higher if your legal representative increase the total charges by adding extra charges as the case advances.

Finally, one can make an informed choice of immigration lawyers in NY, by learning and keeping in mind various kinds of mistakes that a person usually made during selection of a legal expert.