Judgments recovered in U.S. federal and state courts outside of Alabama but then brought into this state are referred to as “foreign” judgments. Federal “foreign” judgments are domesticated through the registration process set out in 28 U.S.C. § 1963 and sister-state “foreign” judgments are domesticated via Alabama state common law or Alabama’s Uniform Enforcement of Foreign Judgments Act as described in Ala. Code § 6-9-230 et seq. Foreign country judgments, however, are domesticated through an entirely different process per the Alabama Uniform Foreign-Country Money Judgments Recognition Act (the “Foreign Country Judgments Act“). See Ala. Code § 6-9-250 et. seq. See also Macfarlanes, LLP v. Clark, 2016 U.S. Dist. LEXIS 99127, Case No.: 2:13-cv-01519-MHH (N.D. Ala., July 29, 2016) for a good discussion and analysis of the requirements of the Foreign Country Judgments Act.[1]
These materials will explain how to domesticate the kind of foreign country money judgments that I typically encounter in my law practice.[2] Part one of the materials describes the process for domesticating foreign country money judgments in Alabama and part two describes the process for perfecting and enforcing the domesticated judgments by recording copies in Alabama’s real estate records.
I. Domestication – Over The Threshold
An action to domesticate a foreign country money judgment may be filed in Alabama federal or state courts.[3] Because there is no federal law governing the domestication of foreign country money judgments and the United States is not a party to any international uniform treaty that provides for the domestication of such judgments,[4] Alabama state law governs the procedure and actions filed in federal district court must be based on diversity jurisdiction. See Vagenas v. Continental Gin Co., 988 F.2d 104, 106 (11th Cir. 1993). Effective on and after January 1, 2013, actions to enforce foreign country money judgments in Alabama courts are governed by the Foreign Country Judgments Act.
A. Definitions, Exclusions, and Applicability
The Foreign Country Judgments Act is applicable to a “foreign-country judgment,” which is defined to mean a judgment of a court of a foreign country. See Ala. Code 6-9-251. Judgments entered by arbitration associations or by a non-adjudicative foreign body do not qualify;[5] nor do judgments recovered in U.S. federal and state courts outside of Alabama as those kind of judgments are already entitled to recognition under the Full Faith and Credit Clause of the U.S. Constitution.[6] Id. A sum of money must also be awarded (or denied) in order for the judgment to qualify under the Foreign Country Judgments Act; if no recovery for an amount of money is granted (or denied), the judgment does not qualify. See Ala. Code 6-9-252(a)(1).[7] Finality is required too. See Ala. Code 6-9-252(a)(2). If the judgment is not “final, conclusive, and enforceable” under the “law of the foreign country” where the judgment was rendered, the judgment does not qualify and not may not recognized in Alabama per the Foreign Country Judgments Act. Id.[8]
B. Statute of Limitations
The statute of limitations for filing an action to domesticate a foreign county money judgment under the Foreign Country Judgments Act is set out in Ala. Code § 6-9-258, which provides that such an action may be filed so long as the “foreign-country judgment is effective in the foreign country”, or within five (5) years from the date that the judgment became “final, conclusive, and enforceable in the foreign country,” whichever is later. See Ala. Code § 6-9-258.
Problematically, Alabama appears to have modified the text of the statute itself to specify a five (5) year limitations period (in addition to the above described, and potentially longer limitations period, tied to the time during which the judgment remains effective in the foreign country) while retaining references in the Alabama Comment and Uniform Comment to a longer fifteen (15) year limitations period recommended by the uniform version of the statute. For example, the Alabama Comment provides that:
Alabama modified this section so that the fifteen year statute of limitation runs from the time when the judgment is final, conclusive and enforceable. This is the same standard for applicability for the act pursuant to [Ala. Code § 6-9-252(a)(2)].
See Ala. Code § 6-9-258, Alabama Comment (emphasis added).
It is difficult to determine whether the limitations period in the text of the statute is wrong (i.e., is the number “5” in the statute missing a number “1” in front of it; is it meant to read “15” years?) or whether the references in the Alabama Comment and Uniform Comment referring to a fifteen (15) year limitations period were left there by mistake. But given that the statute itself and its enacting legislation (Acts 2012, No. 12-470, § 9, January 1, 2013) specifies a five (5) year limitations period, practitioners and Alabama courts should reasonably assume that the five (5) year limitations period is correct.
C. Standards for Recognition
Alabama Code Section 6-9-253(a) provides that, subject to the list of exceptions found in subsequent parts of that statute, Alabama courts “shall recognize” a foreign country money judgment with respect to which the Foreign Country Judgments Act is applicable. See Ala. Code § 6-9-253(a). At first blush, this appears to provide a clear and easy mechanism for domesticating otherwise applicable foreign country money judgments. But the list of exceptions, which are found in Ala. Code §§ 6-9-253(b) and (c), is so broad such that the real import of the statute is to provide bases by which to limit the types of judgments that may be domesticated here rather than to include them.
The exceptions come in two (2) different forms: if the foreign country money judgment is of the first type, which is described in Ala. Code § 6-9-253(b), an Alabama court “shall not” recognize it; if the foreign country money judgment is of the second type, which is described in Ala. Code § 6-9-253(c), an Alabama court “need not” recognize it. In keeping with this distinction, the specific exceptions are listed below under their respective “shall not” and “need not” designations but the author suspects that because Alabama courts “need not” recognize any of the kinds of foreign country money judgments on these lists, the practical effect of being included on either list may be the same (meaning Alabama courts may not recognize a foreign-country money judgment if it is included on either list). Importantly though, the “party resisting recognition of a foreign-country judgment has the burden of establishing that a ground for nonrecognition stated in [Ala. Code §§ 6-9-253(b) or (c)] exists.” See Ala. Code § 6-9-253(d) (emphasis added).
1. Judgments That “Shall Not” Be Recognized
Alabama Code Section 6-9-253(b) provides that a foreign country money judgment shall not be recognized if:
- 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;[9]
- The foreign court did not have personal jurisdiction over the defendant;[10] or,
- The foreign court did not have jurisdiction over the subject matter.
In case this thicket of requirements alone is not enough to convince you that the “shall not” exceptions can be difficult to analyze,[11] the Alabama and Uniform Comments appended to the statute should get you there. Among other things, the Comments provide that as enacted in Alabama, the word “may” recommended by the uniform version of this part of the statute was replaced with “shall” in the Alabama version “to make clear that the grounds listed in that subsection would preclude recognition of a judgment.” See Ala. Code § 6-9-253, Alabama Comment. The Comments further indicate that “[i]t is the intention in Alabama that evidence of a systematic failure to have, enforce, or follow appropriate rules of judicial ethics and conduct is evidence to support a refusal to enforce a judgment pursuant to subsection (b)(1).” Id. (emphasis added).
2. Judgments That “Need Not” Be Recognized
Alabama Code Section 6-9-253(c) provides that a foreign country money judgment need not be recognized if:
- 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;
- The judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case;[12]
- The judgment or the claim for relief on which the judgment is based is repugnant to the public policy of this state or of the United States;
- The judgment conflicts with another final and conclusive judgment;
- 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;
- In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action;
- The judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment; or
- The specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.
The combined effect of these “need not” and “shall not” exceptions in Ala. Code §§ 6-9-253(b) and (c) is to give Alabama courts a more rigid and defendant-friendly framework that replaces the previous, and more discretionary, common law comity analysis. That this is what the legislation was intended to do is confirmed by the Alabama Comment to Ala. Code § 6-9-250, which provides that:
This act is predicated on the same principles as the doctrine of comity, but also offers a straightforward statutory procedure whereby a party may go to court to seek recognition and the party against whom the judgment was obtained may seek to block recognition in court. This procedural process as well as the grounds for refusing recognition set forth in [Ala Code §§ 6-9-253(b) and (c)] provide Alabama citizens and those with assets in Alabama additional safeguards which do not exist under common law.
See Ala. Code 6-9-250, Alabama Comment (emphasis added). Again though, it is the “party resisting recognition [meaning the defendant in most cases] of a foreign-country judgment [that] has the burden of establishing that a ground for nonrecognition stated in [Ala. Code §§ 6-9-253(b) or (c)] exists,” See Ala. Code § 6-9-253(d), and that point should be stressed by the plaintiff party seeking recognition of its foreign country money judgment.
D. Procedural Issues
Important procedural issues under the Foreign Country Judgments Act include (1) that “[t]he party seeking recognition is required to provide the court with a certified copy of the judgment,” See Ala. Code § 6-9-255(c) (emphasis added); (2) that where necessary, an English translation of the foreign country money judgment is required, Id.; and (3) that a potentially indefinite stay is provided to a party who can show that there is a pending appeal in the foreign country court. See Ala. Code § 6-9-257.[13] Each of these issues is discussed separately below.
1.Certified Copy of the Judgment
Alabama Code Section 6-9-255(c) states that “[t]he party seeking recognition is required to provide the court with a certified copy of the judgment” (emphasis added). Like with sister-state judgments, the authentication of which is governed by Rule 44(a)(1) of the Alabama Rules of Civil Procedure, the admissibility of the record of a foreign country money judgment (including the certified copy of the foreign country money judgment) in Alabama courts is subject to certain conditions. But because the records in this instance will be from a foreign country court (rather than U.S. federal or state court), Rule 44(a)(2) applies and provides the following:
A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof; or a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position (i) of the attesting person, or (ii) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, (i) admit an attested copy without final certification or (ii) permit the foreign official record to be evidenced by an attested summary with or without a final certification. The final certification is unnecessary if the record and the attestation are certified as provided in a treaty or convention to which the United States and the foreign country in which the official record is located are parties.[14]
2. English Translation of Judgment
If the foreign country money judgment or any other part of the record from the foreign country court is not written in English, the party seeking recognition must file with the Alabama court “an English translation which complies with the requirements of Alabama law.” See Ala. Code § 6-9-255(c) (emphasis added). While not specified by Ala. Code § 6-9-255(c) or anywhere else in the Foreign Country Judgments Act, the “complies with the requirements of Alabama law” language presumably refers to translations that are authenticated in compliance with Rule 901 of the Alabama Rules of Evidence. With respect to language translations, Rule 901 requires the translator to include a statement or certification that the translation is a true and correct copy of the original record. See Ala. R. Evid. 901(a). See also Barrett v. Radjabi-Mougadam, 39 So. 3d 95, 100 (Ala. 2009) (holding that Russian-to-English translations were inadmissible because they were not authenticated as required by Rule 901).
3. Stay Pending Appeal
Unlike in a domestic action where Rule 62 of Alabama Rules of Civil Procedure provides no stay on execution or enforcement except during the initial thirty (30) days following entry of the judgment, See Ala. R. Civ. P. 62, a potentially indefinite stay is provided by the Foreign Country Judgments Act to a party who can show that there is pending appeal in the foreign country court. See Ala. Code § 6-9-257. In fact, the broad language in Ala. Code § 6-9-257 indicates that either an appeal that is already “pending” or an appeal that “will be taken” is sufficient to obtain a stay “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.” See Ala. Code 6-9-257. No particular time limit is described in the statute; therefore, Alabama courts appear to have substantial discretion to determine the length of the stay.
E. Effect of Recognition
Once a foreign country money judgment has been domesticated in Alabama under the Foreign Country Judgments Act, it is considered to be “(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.” See Ala. Code § 6-9-256.
II. Perfection and Enforcement – From This Day Forward
After a foreign country money judgment has been domesticated in the manner required by the Foreign Country Judgments Act, a copy of the now-domesticated judgment may be perfected via recording in Alabama’s real estate records and enforced through any of the available enforcement remedies provided by Alabama state law.
A. Perfection of Foreign Country Money Judgment
The procedure to perfect a foreign country money judgment through recording is governed by Ala. Code § 6-9-210, which provides that:
The owner of any judgment entered in any court of this state or of the United States held in this state may file in the office of the judge of probate of any county of this state a certificate of the clerk or register of the court by which the judgment was entered, which certificate shall show the style of the court which entered the judgment, the amount and date thereof, the amount of costs, the names of all parties thereto and the name of the plaintiff’s attorney and shall be registered by the judge of probate in a book to be kept by him for that purpose, which said register shall also show the date of the filing of the judgment. Said judge shall make a proper index to said book, which shall also show under the proper letter or letters of the alphabet the names of each and every defendant to said judgment and such judgments shall be recorded in chronological order of the filing of such judgments. Such certificate shall also show the address of each defendant or respondent, as shown in the court proceedings.
See Ala. Code § 6-9-210. Under the statute, a foreign country money judgment may be perfected against any real estate owned by the judgment debtor by obtaining a certificate of judgment from the Alabama court where you filed the domestication action and separately filing the certificate of judgment in each Alabama county wherein you believe the judgment debtor may own real estate.[15]
Make sure that what you file with the probate court is a certificate of judgment and not a copy of the judgment itself. Only an actual certificate of judgment will satisfy the requirements for perfection set out in Ala. Code § 6-9-210. See In re. Camp, 310 B.R. 634, 642 (Bankr. N.D. Ala. 2004) (“the recording of a copy of the Alabama court’s judgment, whether certified or authenticated, does not under Alabama’s statutes create or perfect a lien on properties of a judgment debtor in the county where recorded in the Probate Office”) (emphasis added).
You may go ahead and immediately record a certificate of judgment regarding the domesticated foreign country money judgment because the automatic stay imposed by Rule 62(a) of the Alabama Rules of Civil Procedure[16] does not apply to the recording of a certificate of judgment. See In re. Sintz, 162 B.R. 572, 573-74 (Bankr. S.D. Ala. 1993) (citing to Johnson v. Haleyville Mobile Home Supply, 477 So.2d 328 (Ala. 1985) in support of its conclusion that “the supreme court concluded Rule 62 only prevents enforcement of the judgment for thirty (30) days; it does not prevent recording of a certificate of judgment”).
B. Enforcement of Foreign Country Money Judgment
Although you may immediately record a certificate of judgment regarding the domesticated foreign country money judgment, that does not mean that you may immediately enforce the judgment through any other means. Rather, the holder of a domesticated foreign country money judgment must wait out the thirty (30) day period required by Rule 62(a) of the Federal Rules of Civil Procedure or Rule 62(a) of the Alabama Rules of Civil Procedure (whichever is applicable) before pursuing enforcement or collection actions against the judgment debtor. After that time has passed, the domesticated foreign country money judgment is “enforceable in the same manner and to the same extent as a judgment rendered in this state.” See Ala. Code § 6-9-256.[17]
[1] As of the writing of this article, the author is not aware of any other published decisions concerning the Foreign Country Judgments Act; Macfarlanes, LLP v. Clark is the only one. Due to the lack of case law on the subject, practitioners and Alabama courts should look to decisions from other states regarding their versions of the Uniform Foreign-Country Judgments Recognition Act when necessary. See Ala. Code § 6-9-259, titled “Uniformity of interpretation,” for support regarding citations to out-of-state authority; that statute provides that “[i]n 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.”
[2] Only judgments obtained outside the United States will be discussed; the procedure for domestication of judgments obtained in U.S. federal and state courts outside of Alabama is described in an earlier article by the author titled “Domestic Bliss / How to Domesticate Foreign Judgments in Alabama,” which may be found at: https://csattorneys.com/resources/domestic-bliss-how-to-domesticate-foreign-judgments-in-alabama
Moreover, this article only describes how to domesticate foreign country money judgments in Alabama; domestication of foreign country divorce and domestic relations judgments, foreign country tax judgments, and foreign country fine or penalty judgments are not discussed.
Finally, awards and “judgments” entered outside of the U.S. in arbitration are not included either; they are governed by federal law. See Chapter 2 of the U.S. Arbitration Act, 9 U.S.C.S. §§ 201-208, implementing the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Chapter 3 of the U.S. Arbitration Act, 9 U.S.C.S. §§301-307, implementing the Inter-American Convention on International Commercial Arbitration.
[3] This assumes that there is diversity in the federal district court action. Be careful with diversity actions involving limited liability companies (LLCs) because in the 11th Circuit, LLCs are considered “a citizen of any state of which a member of the company is a citizen, See Rolling Greens MHP, L.P. v Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004), and “[l]ike the complete diversity rule in cases between citizens of different states, alienage jurisdiction prohibits an alien from suing another alien in federal court unless the suit includes United states citizens as plaintiffs and defendants. See Molinos Valle Del Cibao v. Lama, 633 F.3d 1330, 1340 (11th Cir. 2011).
[4] International treaties such as the Hague Convention may play a role in a domestication action but there is no definitive treaty or federal law that governs the domestication of foreign country money judgments in the United States.
[5] A judgment of a foreign court confirming or setting aside an arbitral award, however, would be covered by the Foreign Country Judgments Act. See Ala. Code § 6-9-251, Uniform Comment, Paragraph 3.
[6] See Ala. Code § 6-9-251(1)c. and Uniform Comment, Paragraph 1.
[7] Even though they may be for a sum of money, “a judgment for taxes … a fine or other penalty; or … a judgment for divorce, support, or maintenance, or other judgment rendered in connection with domestic relations” do not qualify and are excluded from the kind of foreign country money judgments that may be recognized under the Foreign Country Judgments Act.
[8] The party seeking domestication of the foreign country money judgment has the burden of establishing that the Foreign Country Judgments Act applies. See Ala. Code § 6-9-252(c).
[9] This language mirrors the standard for nonrecognition set out by the U.S. Supreme Court in Hilton v. Guyot, 159 U.S. 113 (1895). As explained by the Uniform Comment to Ala. Code § 6-9-253, Paragraph 5, “a mere difference in the procedural system is not a sufficient basis for nonrecognition. A case of serious injustice must be involved.”
[10] Ala. Code § 6-9-254(a) provides that a foreign country money judgment may not be refused recognition here based on lack of personal jurisdiction so long as:
(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 has 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 claim for relief arising out of business done by the defendant through that office in the foreign country; or
(6) the defendant operated a motor vehicle or airplane in the foreign country and the proceeding involved a claim for relief arising out of that operation.
Moreover, the listed bases by which an Alabama court may find the foreign country court had jurisdiction over the defendant under Ala. Code § 6-9-254(a) is not exclusive; Alabama courts are free to consider other reasons (meaning outside of the listed bases) to support a finding that the foreign country court had personal jurisdiction over the defendant. See Ala. Code § 6-9-254(b).
[11] Alabama courts asked to recognize a foreign country money judgment, and faced with a defendant resisting such recognition, have to determine (1) whether the foreign court had personal jurisdiction over the defendant; (2) whether the foreign court had subject matter jurisdiction over the action; and (3) whether the foreign court employed “impartial tribunals or procedures compatible with the requirements of due process of law.” Simple, straightforward stuff, right? Not so much in the author’s opinion.
[12] Uniform Comment, Paragraph 7 states that only “extrinsic fraud,” defined to mean “conduct of the prevailing party that deprived the losing party of an adequate opportunity to present its case,” is a sufficient basis for nonrecognition under this exception. “Examples of extrinsic fraud would be when the plaintiff deliberately had the initiating process served on the defendant at the wrong address, deliberately gave the defendant wrong information as to the time and place of the hearing, or obtained a default judgment against the defendant based on a forged confession of judgment.” See Ala. Code 6-9-253, Uniform Comment, Paragraph 7.
[13] While not described anywhere in the Foreign Country Judgments Act, the judgment amount will have to be converted from the foreign currency into U.S. dollars:
The [U.S.] Supreme Court has laid out two options for determining the proper date on which to convert foreign currency into U.S. dollars. The first, established in Hicks v. Guinness, 269 U.S. 71 (1925), and known as the “breach day” rule, applies when the plaintiff’s cause of action arises under U.S. law. In that case, the applicable exchange rate is the rate that was in effect on the date that the plaintiff’s cause of action arose. The second method, based on the Supreme Court’s decision in Die Deutsche Bank Filiale Nurnberg v. Humphrey, 272 U.S. 517 (1926), applies when the suit is based entirely on an obligation existing under a foreign country’s laws and the debt is payable in that country’s currency. In that case, the parties assume the risk of currency fluctuations and the applicable exchange rate is the rate in effect on the date of the final decree or judgment. This is known as the “judgment day” rule.
See EGI-VSR, LLC v. Coderch, 963 F.3d 1112 (11th Cir. 2020) (internal citations omitted) (emphasis added).
[14] The author notes that there is no specific reference to Rule 44 in Foreign Country Judgments Act but Rule 44, including subpart (a)(2) concerning the authentication of foreign records, is generally applicable in Alabama courts; therefore, the author believes that compliance with Rule 44(a)(2)’s authentication requirements is mandatory. Moreover, Ala. Code § 6-9-255(c)’s requirement that a “certified” copy of the foreign country money judgment must be filed supports this conclusion as the Foreign Country Judgments Act does not define what it means for a judgment to be “certified” or provide any other guidance on that requirement.
[15] Once filed, each certificate of judgment creates a judgment lien against any interest in real estate owned by the judgment debtor in that particular country. See Ala. Code § 6-9-11. Each certificate of judgment will constitute a judgment lien against any interest owned by the judgment debtor for ten (10) years from the date of the domesticated foreign country money judgment. Id.
[16] This is a different stay than the stay provided by Ala. Code § 6-9-257. Unlike the stay under Ala. Code § 6-9-257, which is premised upon the filing of appeal (or potential appeal) in the foreign country court that issued the underlying judgment, the stay under Rule 62(a) is automatic and does not depend on the filing (or intended filing) of any appeal.
[17] The various mechanisms for enforcement and collection of judgments in Alabama are broad and too voluminous for inclusion in this article.
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