USA Law and Practice Contributed by: Steven Molo, Robert Kry, Megan Cunniff Church and Walter Hawes, MoloLamken
In New York, for example, a party with a judgment may serve restraining notices on the defendant or other parties with custody of the defendant’s assets. Those notices have the effect of freezing assets while the plaintiff pursues further execu - tion procedures. Parties may serve those notices without any prior approval from the court. A plaintiff then executes against the assets by arranging for the marshal or sheriff to serve a writ of execution on the party with custody of the assets. The same process may be used to collect a debt that a third party owes to the judg - ment-debtor in satisfaction of the judgment. If the custodian refuses to turn over the property, the plaintiff may file “turnover” action asking the court to order the custodian to comply. In New York, a plaintiff may file a turnover action against a third-party custodian of property even if the property itself is located outside the Unit - ed States. Because a turnover proceeding is an in personam proceeding against the custo - dian, New York requires only that the custodian itself be subject to the court’s jurisdiction. Other states are divided on whether they permit extra - territorial turnover actions. As noted in 2.1 Disclosure of Defendants’ Assets , after the plaintiff obtains a judgment, US law permits liberal discovery into the judgment- debtor’s assets, even those located overseas. Asset discovery is therefore a major component of most post-judgment collection efforts. 5.2 Enforcement of Foreign Judgments Where a plaintiff holds a foreign judgment against a defendant, the plaintiff must obtain recognition of the judgment in the United States before seeking to execute it. Recognition of for - eign judgments is ordinarily a matter of state law.
Each state has its own statutes or principles governing the recognition of foreign judgments. Most states, however, have adopted some ver - sion of the Uniform Foreign-Country Money Judgments Recognition Act, a model law that provides uniform standards and procedures for courts to follow. The Uniform Act generally prohibits courts from re-examining the merits of a foreign judgment. Nonetheless, courts may decline to recognise a foreign judgment, for example, where: • the foreign court lacked jurisdiction; • the defendant did not have proper notice of the proceedings; or • enforcing the judgment would violate public policy. New York state courts are often a good forum for seeking recognition of foreign judgments. New York has narrow grounds for non-enforcement, and has expedited procedures for obtaining summary judgment in a recognition action. It takes a broad view of post-judgment asset dis - covery and execution, and many financial insti - tutions and commercial counterparties with cus - tody of a defendant’s assets are located there. Once a plaintiff obtains recognition of a foreign judgment in one US state, it is relatively easy to have that judgment recognised in other US states as well. 6. Privileges 6.1 Invoking the Privilege Against Self- Incrimination The Fifth Amendment to the US Constitution provides individuals with a privilege against compelled self-incrimination. Individuals can - not be forced to give testimony, in the form of answering questions or providing information,
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