July 20, 2013
There has been a fun article, created by the well-experienced attorney:
~ Lic. Spencer McMullin ~
published on various Mexican expat web-forums and websites – describing the vagaries of Mexican law.
We much appreciate Atty. McMullin’s (aka Spencer, or “Intercasa” on expat webforums) ongoing and ~ very generous ~ efforts to consistently help foreigners in Mexico ~ with free advice ~ on handling legal issues very well, esp. when dealing with the Mexican Gob., the Mexican police, and Mexican Immigration and Aduana, and the Mexican judicial system. We offer kudos and high praise to Spencer’s efforts, and we invite you to check out his very good site at chapalalaw.com . Finally, we offer the following article (including minor stylistic edits) of his latest very good insights (as published on Mexconnect):
6 Big Mistakes People Make in Mexican Lawsuits
It is 8:00 am, you are drinking your morning coffee, and there is a knock at the door.
A nice neighbor wanting to borrow a cup of sugar?
Who could it be?
Oh, it’s Spencer… but wait…
The police are also there, with Spencer, along with a bunch of Mexican guys in suits
… as well as a tow truck.
What’s going on?
Would you refuse to come out?
Would you come out to find out what was going on, then remember you owe money to a hospital or person …
and then run back inside and slam the door and hide?
That could cost you your door, (because many court orders for embargos include orders to enter forcefully) …
Even if there is no order permitting them to break down the door, do you want to hide inside ? Indefinitely…. Especially since the plaintiff’s attorney will just apply for such an order, and they return to break-down your door and serve you just a few weeks later?
That’s mistake number 1.
As a Mexican attorney (with my cédula profesional), litigator, and official court translator, I have accompanied court officials on many different court procedures involving foreigners. … It’s been my experience that most foreigners don’t know how the Mexican legal system works. That problem is often compounded by being represented by bad attorneys, who don’t prepare their clients well, nor monitor the strict timelines involved.
As a result, many foreigners don’t get good results as defendants in a lawsuit, or even plaintiffs for that matter.
To try to raise awareness a little, I’ve developed a list of common mistakes people make and information so that people know what to expect in civil litigation as well as know what their attorneys should be doing. …
If you owe someone money (for example, in a typical tenant/landlord or hospital promissory note dispute), and they decide to file a lawsuit, then: One of the first things that happens in Mexico is that the plaintiff (the one you owe money to) can get a “pre-judgment right to attach” order (called an embargo) to secure collateral from you for the value of what they say you owe them well actually up to 3 times the amount in dispute.
This action ensures that you won’t get rid of your assets and then plead poverty – if you lose the suit.
When you get served with the lawsuit papers at your door, the server (called a notifier in Mexico), is usually accompanied by the police, the plaintiff’s attorney, and a tow truck to get your car. Sometimes they even bring a truck to haul away seized items. This group has the right to enter your house, or to force entry, as described in the court’s order that admits the lawsuit and approves the embargo. Note that the people breaking down your door and hauling away your stuff ~ will not pay for damages ~ (unless at the end of a lengthy – a.k.a. expensive – court battle – you win the suit).
The court personnel conducting the procedure should also be accompanied by a court authorized and appointed translator, if you don’t speak the Spanish language well enough to understand the legal issues of what is going on. If there isn’t a translator, you can appeal the lawsuit later, and get it kicked back to the point where they would reset the case to the time where you were improperly served.
Not knowing this is mistake number 2.
Once you reach this part of the seizure, (after they have broken down your door): The court execution secretary will probably ask what property you want to place for collateral.
This can be your TV, your jewelry, your car, your house—anything the plaintiff knows you have of value.
If you stutter, refuse or don’t tell them what to seize, then the plaintiff’s attorney may choose which items they are taking, because defendants (you) get the first opportunity, but if you blow it: …. They can either take the merchandise with them, or notify you that the property is collateral in the lawsuit and cannot be disposed of and you will be the judicial depository with criminal penalties if you dispose of the property. But you don’t have to accept that.
That’s mistake number 3.
You have the right to decide what can be embargoed.
Do they want to take your car because you owe someone 5,000 pesos?
Tell them they can embargo the TV, instead.
You should also be aware that there are legal exclusions to what can be embargoed: Basic necessities—such as tools of your trade and home furnishings among other items—cannot be taken.
At this point, you’ll probably have panicked and called your lawyer, who says:
“I’ll be right over. ” Remember, TIM (This Is Mexico…)
In other words: That usually doesn’t work.
First, the notifier or court execution secretary is not going to wait around for any period of time, nor will they want to argue with some lawyer (who may or may not know what he is talking about), and finally, your lawyer will NOT be able to change or stop what is happening under the Court’s Order. A good lawyer will want to get fotos of the merchandise, along with written notes of what they are taking. A bad lawyers simply allows thing to be quickly loaded up and gone.
Second, no lawyers will show up within the 5 minutes they said they’d arrive, and the courts, police, and gruas… will not wait.
So, what’s your best bet?
If you have the money the person says you owe,
then pay it on the spot !
Make or get signed receipts for what was paid.
If you give cash or a check: Make sure you get a receipt signed by the attorney for the plaintiff.
You can always file a lawsuit of your own to get the money back, if it’s worth it to you, but some attorneys have been known to play games with items, hiding them while they file appeals to pressure defendants into accepting a settlement.
If you don’t have the money, and if you’ve agreed to have something embargoed (especially if they take it away), take a photo of it first to make sure you get back exactly what they took (if you win the lawsuit).
All property taken or signaled in the embargo will be listed in detail on the written statement made by the court execution secretary and you will receive a copy. The document you’ve been served with, will state the upcoming date by-which you (your attorney) has to file a response to the suit. This typically will be 5 days for summary cases [landlord tenant often falls under this category] and 8 days for regular cases under Jalisco State law and causes of action and 8 days for executive action [these are the most common for collection of pagares or promissory notes] s, 9 for oral trials and 15 for regular mercantile suits under the Federal Commerce Code.
Remember all “day counts” start the day after service and are counted in the units of court business days. It is worth noting that these are much shorter periods of time than NOB legal proceeding, (North of the Border), where the norm is 30 days and where your time to respond is the even longer than the 30 days period ~ or when the opposing party files a request to enter default with the court.
Well before your court date: You will want to gather all the evidence and witnesses you can to defend yourself during the short amount of time you have to respond to list them in the response.
Not doing this is mistake number 4.
No delays of time are granted.
Failing to file a response within the time permitted by law, causes you to be in default, and the court is free to assume that all the allegations made against you are presumably true.
If the time to respond has passed, and even if the other side has not requested the court take their side in a default judgment, the court would still reject any subsequent response by you, after the statutory time limits – as they adjudicate your late responses to be invalid due to their untimely filing.
Continuing: In most cases, you must list evidence and witnesses known to you in your response to the court, as any evidence offered after making your written response may be rejected by the court or objected to by the other party.
When a hearing is subsequently scheduled, make sure your attorney takes the time to prepare you and your witnesses properly. ~ This doesn’t happen in a surprisingly large number of cases. ~ The defendant and the witnesses frequently go into Mexican court hearings “cold”; they become overwhelmed or confused by the proceedings & by the kinds of questions being asked.
~ Well-prepared parties or witnesses need to know IN ADVANCE, what issues are in dispute, so they can reasonably predict the questions they will be asked.
People who do not speak Spanish will have the right to have a translator appointed by the court, present to translate, as well as to read to them (at the end), the record made of the hearing. The party offering the evidence pays the translators fees.
This is mistake number 5 that people often make.
When the hearing day comes, if you’re late (even 10 minutes): You will not be allowed to have that evidence included in the court record, from which the judge will issue a ruling. In this case, the plaintiff can win the suit, due to you having less (or no) evidence to bolster your case.
That’s mistake number 6.
Almost everything in Mexico runs late …. ~ except the court system ~ .
If you arrive on time, but your witnesses don’t, … you lose their testimony.
There’s no “make-up” hearing nor delays for exigent circumstances allowed, (like NOB), save for medical emergencies.
When the judge eventually decides on the case, if you have presented little or no evidence, then the opposing side often wins, especially if they met their evidentiary burden.
Hopefully, these most common mistakes made by people defending themselves in lawsuits, can be avoided with … a bit of preparation, … self-education, and … maintaining a cool head under fire.
It’s also important for people to know their rights, and to remember how the legal system in Mexico works either for them … or against them.
Here is a list of the most common procedures people can have with the Mexican courts as a party or affected third party:
Emplazamiento – This is where the notifier serves the lawsuit on the defendant. You will be asked to identify yourself when they arrive at your door as they wouldn´t want to divulge personal information to third parties nor serve the wrong person. You are under no obligation to give them your ID nor sign anything although being uncooperative in the process may cost you more time and money in the end as well as line the pockets of the attorneys. If upon first visiting your home you are not there and someone is there, the notifier will leave a citatorio or rquest to be there the next day and if you are not, then they may legally serve papers on whomever is at your home whether it be a family member or someone working there and then the clock starts ticking. If you are there then this is not the time to argue your case as any response and evidence and defenses must be in the proper written format and timely presented to the court.
Notificacion – This is where the notifier notifies a person about some court resolution that may affect them.
Embargo – This is where they come to ask you to pay a debt, then if not paid they proceed to designate property as collateral or levy or seize it and then after serve you with the lawsuit giving you the 5 or 8 days to respond and then they serve you with the suit (see emplazamiento above).
Various Types of Mexican Court Hearings:
Ratificacon de la Solicitud – For mutual divorces where the parties acknowledge the request for divorce they submitted to the court.
Avenimiento – This is where the judge or conciliation secretary asks the parties if there is any way to salvage their marriage and confirms they really want to get a divorce.
Conciliacion – This is where the court secretary ask the plaintiff to make a settlement offer to the defendant and to see if the defendant accepts and then asks the defendant to make a settlement offer to the plaintiff and see if the plaintiff accepts, if neither party accepts than the court asks the parties if they wish to continue with the judicial process.
Testimonial – This is where a party presents 2 witnesses to support one or many points in their lawsuit or may be used to have 2 people establish that 2 names listed for a person, i.e. Robert Smith and Bob Smith are one in the same person.
Confesional – This is where a party to the case is asked questions by the opposing side. These are most akin to request for admissions in US discovery and if an answer is not clear or an unequivocal denial or evasive then the question is deemed admitted.
Other Key Terms:
Separacion de Personas – This is what would be known as a “kick out” order in the US where 2 parties live under one roof and one has filed a criminal or civil complaint against the other and the offended party applies to the court to force the other one to leave the residence, they usually are only able to bring a suitcase of clothes, the judge and court secretary will usually both be there as well as the police.
Lectura del Testamento – This is where a will is read with the heirs present where the court declares the validity of the will, the executor and what each heir is entitled to receive in the will.
Ratificacon de la firma – For any document presented to the court substantially affecting their rights or settling a case, they want to make sure that the person really signed the document so there are 2 options, sign in front of a notary or bring the signed document and have a mini hearing in front of the court secretary where the signing party admits to signing the document.
Background Information on the Author:
Lic. Spencer Richard McMullen, Abogado y Perito Traductor [Cédula Fed. #7928026, Estatal #114067], Perito Traductor autorizado por el Consejo de la Judicatura del Estado de Jalisco, mediante Boletín Judicial número 76 de fecha 22 DE ABRIL DEL 2013
Mexican licensed attorney (Cédula #7928026) and official court translator (Perito Traductor). Mx 376-765-7553
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In any case, we hope this very good information from Atty. Spencer McMullin helps minimize any future legal problems that may crop up for foreigners in Mexico – or even for Mexicans….
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Feel free to copy while giving proper attribution: YucaLandia/Surviving Yucatan.
Steven M. Fry
Read on, MacDuff.