The Free Press - Volume 4, Winter 2006

Report from the Chair

By Beau Hays, Esq.

Beau HayesFor several years, I observed that CLLA was only really good at two things -- education and vicious infighting, and that the problem was that it was so hard to sell the second one to prospective new members as a benefit.

To me, it seems that we have put that era behind us.  The credit for this renaissance can be spread pretty widely - to the Agency section, to recent League Presidents, to our EVP, and (not to be smug) to our Section.  Thanks to a series of Chairs who shared the view that the agency members of the League were not antagonists but part of our constituency, a series of initiatives were developed and sponsored in part by CRS, such as the agency networking days, Triadic luncheons and roundtables, and the recent NACM sessions at the New York meeting.  These positive trends will continue at the coming meeting in Chicago and beyond.

Now that we have toned down the vicious infighting, we can continue to focus on what we do best - and that's education.  CRS already provides some of the finest continuing education available, but we need to do more.  Currently our education benefits the members who attend the meetings, a small subset of our total membership.  My goal for this year is to bring more value to the members of the Section, and the best value we can give them is in education.

Several years back, the CRS took the initiative in getting the League to develop an improved website.  It took several years, and regular infusions of CRS dollars, to get the League's website from its original state, which could only be charitably described as "couldn't suck worse,"  to its current state, which I think is most accurately described as "a stable platform for further development."  We now need to do the same thing with education:  use it to reach out beyond the CRS members who attend a New York or Chicago meeting.

There is no other area where we can better utilize the resources of our Section, both financial and human.  We have a wealth of knowledge to tap into.  We have a variety of audiences available to whom we can market our education programs:  to attorneys, within the Section and League and without, and also to our clients, whether agencies or credit grantors.  We have a League office with the resources and the desire to run with the idea.  And we have the resources to fund the initiative while it develops.

As a Section, we need to commit to spending the money to make regular telephone seminars and web-based seminars a reality.  (Trying to type the word "Awebinar" made my fingers leap off my hands on their own.  Not all new words are improvements; it reminds me of nothing so much as George Carlin once lobbying that refrigerator-freezer was too cumbersome and should be shortened to "refrigideezer".  But I digress.)  We need to work with the League office and the League's Education committee to develop programs that we can market inside the League and out.  Unlike the programs being offered in New York and Chicago, these events can be focused on narrow topics and specialized niche markets.

If you are one of those people who does nott see the benefit to a telephone seminar in your own practice, look at it as a way to benefit your clients.  I have presented a series of very popular phone seminars in recent months under the auspices of the NACM office in Atlanta.  Our clients are hungry for the knowledge that we can provide.  And, in time, I believe that remote education will become the norm for continuing legal education as well.

Where is the benefit to this Section, particularly?  CRS-sponsored seminars should come with discounts for CRS members.  Membership has two benefits:

  • Your dues money makes the seminars a reality
  • Your membership saves you money.

In any case, CRS has been at the forefront of putting together education that the League can be proud of, and we need to continue to do so.

The Section's Education co-chairs did not know what they were in for when they agreed to take those posts.  In the rapidly-dwindling months before I hand the gavel off to Ed Friedman, I will be asking them to work with the League office, and League National Education Committee chair, Chris Hickey, to develop a series of programs that can be marketed as telephone seminars and potentially as web-based seminars, aimed at issues of interest to our CRS members and to our constituency, the credit community.

Several initiatives developed within the League lately have suffered from the fact that they literally could not afford to fail, that there was no funding available to sustain the initiative if it was not an immediate financial success.  We have the funds, both in revenues and reserves, and those monies are held by the Section in trust for the benefit of the members.  We have an obligation to look for, and implement, initiatives to benefit the members.   But more than that, remote education can also be a money-maker for the Section.  The costs are low and stable, the revenues dependent solely upon the popularity of the program.  I would envision that after the start-up phase of the initiative, that it would pay for itself and provide additional revenue to the League and the Section, both of which are always looking for ways to increase revenue without increasing dues.

And so I will also be asking that the budget for the coming year specifically allocate funds to help with development and marketing of these remote education initiatives.  I believe that it is an investment which will pay dividends, and right soon.

Finally, we need ideas for program topics of interest to attorneys, to agencies, to credit grantors.  Simply put, if there is something you'd like to know, or a topic that you'd like to present, no matter how limited in scope, this is the chance to find out how many others share your interest.  You can send ideas to me or to our Education co-chairs, Matt Burkinshaw and Lorna Walker

Editor's Note:  Beau Hays, Esq., Chair-elect of the Creditors' Rights Section, is a partner in the Atlanta, GA law firm of Hays & Potter, P.C., practicing in the areas of creditors' rights, construction law, bankruptcy, business law, commercial law, collections and civil litigation.

Outgoing CRS Chair, Bobby Bernstein, administers the oath of office to incoming CRS Chair, Beau Hays.

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BOARD REPRESENTATIVE REPORT

By:  Jeff E. Rubin, Esq.

We have had some major accomplishments since the last issue of the Free Press as a few initiatives continue to move forward.

The Board approved a marketing/membership initiative which has already seen some positive results.  Eighty-two (82) new members have joined the League in the last quarter of 2006.  This increase is three (3) times as many new members than League has seen in the previous three (3) years.   In addition, new vendors are spending money to advertise with the League.  As of mid- January, the League has $51,000 of new advertising revenue…again as the result of this new marketing/membership initiative.

The League moved ahead with a Board approved law suit against George, Kennedy and Silverman.  The law suit is for trademark infringement, false designation of origin, false description or representation, counterfeiting, unfair competition, common law trade mark infringement, violation of the Texas Anti-Dilution Statute and trademark dilution arising under the Trademark Act of 1946.   The law suit has just been filed so I will have more to report when we next get together in Chicago.

On a personal note, I have really enjoyed being your Board Representative this past year.  It is hard to believe that my tenure will be up so soon.  Thank you for the privilege in allowing me to serve you.

Editor's Note: Jeff E. Rubin practices law in Miami, Florida.  He is a partner at the Law Firm of Talianoff Rubin & Rubin. He is immediate past chairman of the Creditor's Rights Section and currently serves the Board Representative for the Section.  He can be reached at jeff"mialaw.com.

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Treasurer's Report: CRS Finances Sound 

by Mark Sheriff, Esq., Treasurer

As current treasurer of the Creditor Rights Section, I am pleased to report that the section is strong financially, and in a position not only to meet our commitments to our members for this fiscal year, but also for the years to come. 

COMMERCIAL LAW LEAGUE OF AMERICA (CLLA)

CREDITORS' RIGHTS SECTION

FOR THE PERIOD ENDED  NOVEMBER 30, 2006

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year to Date

 

Year to Date

 

Variance From

 

Annual 2007

 

 

 

 

 

Actual

 

Budget

 

Budget

 

Budget

 

 

REVENUE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Membership Dues

 

 

31,194

 

34,200

 

(3,006)

 

68,400

 

Other Revenue

 

 

100

 

0

 

100

 

0

 

 

TOTAL REVENUE

 

 

 $         31,294

 

 $         34,200

 

 $          (2,906)

 

 $         68,400

 

 

EXPENSES

 

 

 

 

 

 

 

 

 

 

Administrative & General

 

 

271

 

2,848

 

2,577

 

5,400

 

Executive Council Expenses

 

 

2,952

 

5,000

 

2,048

 

6,100

 

CLLA Management Fees

 

 

9,568

 

9,770

 

202

 

19,710

 

Other Expenses

 

 

0

 

0

 

0

 

0

 

Publications

 

 

3,166

 

3,090

 

(76)

 

6,200

 

Special Events

 

 

5,096

 

5,000

 

(96)

 

9,000

 

Conference & Meeting Expenses

 

 

14,505

 

12,000

 

(2,505)

 

24,000

 

Other Expenses

 

 

0

 

0

 

0

 

0

 

Other Expenses

 

 

0

 

0

 

0

 

0

 

 

SUBTOTAL EXPENSES

 

 

35,558

 

37,708

 

2,150

 

70,410

 

 

Income (Loss) before extraordinary items

 

 

(4,264)

 

(3,508)

 

(756)

 

(2,010)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

INVESTMENT ACTIVITIES

 

 

 

 

 

 

 

 

 

 

 

Investment Income

 

 

7,819

 

3,240

 

4,579

 

6,500

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TOTAL INCOME (LOSS)

 

 

$3,555

 

($268)

 

$3,823

 

$4,490

 

 

 

 

 

 

 

 

 

 

 

 

 

Net Income (Loss)

 

 

$3,555

 

($268)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Beginning Net Assets June 1, 2006

 

 

$120,580

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ending Net Assets

 

 

$124,136

 

 

 

 

 

 

 

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SECRETARY'S REPORT

No updates to report to the membership at this time.  Check in with the membership at the CRS committee meeting in Chicago. 

Letters to the Editor:

We have no letters this issue.  Letters or comments can be sent to LVogel@salonmarrow.com or  brendam@kohnlaw.com 

Washington Legislative Report

By David P. Goch, Esq.

Private Debt Collection

The debate over private debt collection continues to rage on. On the one hand, the IRS fiscal year 2008 proposed budget anticipates that private debt collectors will collect a total of $112 million, earn payments of $21 million and give $21 million to the IRS for enforcement efforts, netting the federal treasury $70 million in fiscal year 2008.

According to the three private collectors hired by the IRS in March 2006, they have collected a total of $11 million to date and are hold in high regard the responsibility of protecting taxpayer information. However, the "success" of the program and the representations of the companies has not convinced everyone. In January, Sens. Dorgan (D-N.D.) and Murray (D-Wash.) introduced S. 335, a bill to suspend "immediately and indefinitely" the IRS from using private debt collectors.

Reasons given by the bill sponsors for disbanding the program are:

  • IRS employees collect tax debts for 3 cents on the dollar, while private collectors are paid up to 25 cents for every dollar they collect;
  • private collectors have less incentive to provide taxpayer rights training to employees; and
  • tax collection is a core function of the Federal Government.

The bill is similar to a House measure, HR 695, introduced by Rep. Van Hollen (D-MD).


Bankruptcy

The bankruptcy reform act notwithstanding, there are interest groups that feel the bankruptcy code needs additional amending. There has been no signals yet from the Hill as the House recently emerged from its 100 hours agenda, and both the House and Senate Judiciary Committees have just recently organized and started business.

Judiciary

In his 2006 year-end report, U.S. Supreme Court Chief Justice John G. Roberts Jr., urged Congress to retain a capable and independent judiciary as envisioned by the framers of the U.S. Constitution by increasing judicial salaries; echoing his sentiments of a year ago. The recommendation is not new; it was consistently included in his predecessor's, the late Chief Justice William Rehnquist, 19 year-end reports. According to information prepared by the Administrative Office of the United States Courts, in 1969, federal district judges earned 21 percent more than the dean at a top law school and 43 percent more than its senior law professors. Today, federal district judges are paid just half of what the deans and senior law professors at top schools are paid. Adjusted for inflation, federal judicial pay has declined by almost 24 percent, Roberts emphasized.

The issue of funding for the courts system, in total, is on the radar screen of a number of organizations.

On a somewhat related note, the Senate Judiciary Committee recently postponed their consideration of S. 214 that would remove the authority of the U.S. Attorney General to fill vacant U.S. Attorney positions - bypassing the Senate confirmation process.

The Bush administration's recent actions in replacing a number of U.S. Attorneys has spurred Senate Democrats to call attention to this provision in the reauthorized Patriot Act. The provision allows the Attorney General to fill U.S. Attorney positions for an indefinite period, and Democrats have expressed concerns that the Administration may be using the provision to force out U.S. Attorneys and appoint favored political figures in their place.

The bill, sponsored by Sen. Feinstein, would grant the authority to fill vacancies to U.S. district judges in the district where the vacancy occurred. Before the reauthorized Patriot Act in 2006, federal judges had that authority and attorneys general could only make appointments lasting 120 days.

Editor's Note:  David P. Goch, Esq., is the CLLA Washington Legislative Counsel.

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Committee Reports:

EDUCATION COMMITTEE REPORT
By Matthew J. Burkinshaw, Esq. and Lorna Walker, Esq.

The Education Committee is very pleased with the education programs that are planned for the 77th Annual Chicago meeting in April.  The CRS will sponsor and co-sponsor several feature programs.  On Saturday, April 21st, the CRS will present a program on Negotiation Strategy and Techniques by Gerald Williams, the Marion G. Romney Professor of Law at Brigham Young University's J. Ruben Clark Law School.  Mr. Williams has lectured extensively on negotiation tactics and techniques and his book Legal Negotiation and Settlement (West, 1983) has been adopted by over 150 law schools in the United States and internationally.  On Saturday afternoon, following the Negotiation program, the CRS will present a panel discussion on federal privacy statutes that govern the use and maintenance of debtors' private personal information.  The program will be moderated by Commercial Law League counsel David Goch.  In addition to David, the panel will include Joel Winston, Associate Director of the Fair Trade Commission's Division of Privacy and Identity Protection.  On Friday the CRS is co-sponsoring a program with the Bankruptcy Section on hidden liens in bankruptcy.  This program will look at how pre-bankruptcy liens affect the rights of creditors, secured and unsecured, in bankruptcy.

The Committee, in cooperation with other League sections and the National Education Committee is currently in the planning stages for programs for New York in the Fall.  We have several programs under consideration, including programs on receivership and electronic discovery issues.  As always, the Committee welcomes input on past, present and future education programs from all CRS members. We encourage you to approach us with an idea for a program or to volunteer to speak at an upcoming convention.  Speaking at a convention is a great way to raise your profile in the League which can in turn lead to more business for you and your firm.  If you recently attended a program offered by another local or national association that you feel would be worth presenting to your fellow CRS members we would be happy to contact that speaker.  Please feel free to contact one of us with your ideas.

Editor's Note:  Lorna Walker, Esquire and Matthew J.Burkinshaw are Co-chairs of the CRS Education Committee.  Matthew Burkinshaw, Esq. serves on the Executive Council of the CRS and Co-Chairs the Education Committee.  He is the principal attorney of Burkinshaw Law Offices, P.C. in Milford, MA.  The firm concentrates in handling commercial and retail collection matters throughout Massachusetts.  Lorna Walker, Esq. is a principal in the firm of  Sweet & Walker in San Francisco, CA, specializing in commercial collection.  The firm handles all collection matters, including insurance premiums collections, trucking claims, etc.  Lorna has been practicing for 15 years and has specialized in collections litigation for the last 13 years. 

Ian Bardin demonstrates CRS activities at the CRS reception

 

Members drum up business at the CRS cocktail reception

REPORT FROM THE NATIONAL EDUCATION  COMMITTEE
By Chris Hickey, Esq., Chair, National Education Committee
                       
CLLA:  WE'VE GOT YOUR E-TICKET:   Paper is a thing of the past.  From airline tickets to e-filing, electronic is the way to go.  The League is keeping up with the times and recognizing that reams of paper only make for a heavy suitcase headed home from conventions.  For this reason, we are migrating toward electronic education materials.  Our hope is that you will enjoy the convenience of electronic media to be downloaded, shared and printed as you see fit.  We encourage your comments and suggestions, and we look forward to providing you with this added benefit at the Chicago convention.

NEWSLETTER COMMITTEE REPORT

This newsletter is circulated three times per year electronically in the Spring, Summer and Fall (and via fax for those not online).  Members are encouraged to submit articles of interest or letters to the editor for inclusion along with a short bio for publication.  The annual Best Feature Article award is noted elsewhere in this issue.  The award and gift will be presented at the CRS meeting in New York.   Current co-editors are Livui Vogel, Esq., Salon Marrow Dyckman Newman & Broudy LLP, New York, NY  and Brenda Majewski, Administrator, Kohn Law Firm S.C., Milwaukee WI. 

2006 The Free Press editor, Nick Krawec, presents Attorney Joe Marino with his Best Feature Article Award at the New York meeting. 

YMS REPORT TO CRS
By:  Matthew J. Richburg, Esq.

The YMS is sponsoring Friday night's entertainment event during the Chicago convention.  Back by request, due to its popularity is a return visit to The Kingston Mines.  The Mines is located in the trendy Lincoln Park area of the city.  Two bands, two stages, performances and dancing keep the place jumping.  The $60 fee for YMS members and $65 fee for non-YMS members entitles you to entrance to the club, an open bar and limited appetizers.  Watch for the Chicago brochure to sign up. 

Editor's Note:  Matthew J. Richburg is the Litigation Manager for Kohn Law Firm, S.C.in Milwaukee and is a certified Creditor's Rights Specialist.  He is a member of the YMS Executive Council.   

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SPOLIGHT ON THE CRS CHAIR

James “Beau” Hays

Interview by Liviu Vogel, Esq.

Name:   James William Hays.  Since everybody asks, Beau came from the fact that I was named for my father's father, who my mother despised, so James, Jim and all other variations were right out.  After about a year of trying nicknames that didn't stick, somehow I got stuck with Bo.  This was the sixties, and Lifebuoy soap ads were still running, so when I was about nine I changed the spelling.

Residence/Hometown:  Atlanta, Georgia.  Greenest metropolis in America.  A great place to live, but you wouldn't want to visit.

Education: University of North Carolina – Chapel Hill; BA in History and Political Science; JD in Not Torts

Work History:  After school, which I guess is what you're looking for, I was the single associate for a sole practitioner for a couple of years before becoming the litigation department for the collection firm of Bryant, Davis & Cowden (with League members Larry Bryant and Jay Davis).  Twelve years ago, I hooked up with a total nutjob named Emory Potter and, as they say in the story, they lived happily ever after.

Family:           First Wife – Mary Beth Hebert, who is a divorce lawyer (thus discouraging thoughts of there being a second wife), and Bogart, a 13.5 year old basset hound who doesn't know that he isn't still a puppy.

Areas of practice and specialties:     Construction litigation and creditor's rights in bankruptcy.  And counsel for Basset Hound Rescue of Georgia.

What year did you join CLLA?:    1996

What other offices have you held in the CLLA and Creditors' Rights Section?:  
Chair of the Practices and Procedures Committee (which I think was terminated immediately
after my tenure); Chair of the Membership Committee (during which time membership declined)
and then of the Education Committee and now I'm Chair of the Meetings Committee. 
But I'm probably best known for the putt-putt tournament at National meetings, way back when
we had those things.

Tell us about your family and your family interests and activities:   Outside the house, we attend shows at four different theatre companies as well as concerts of the Atlanta Symphony, and have season tickets for the Atlanta Braves.  Inside the house, I read pretty much constantly.

What qualities do you feel that you bring to the job of Chair of the Creditors' Rights' Section?: 

Fear, surprise and a fanatical devotion to the Pope.  No wait, that's the Inquisition.  I seem to have a knack for getting other people to do things – specifically finding people who are good at something and getting them on track to do something good.

What goals would you like to achieve during your term as Chair of the Creditors' Rights Section?:

To not make the membership regret letting me have the job – though this interview has probably blown that one.  Chiefly, I want the Section to become relevant to the practice of the members, as a resource not just of names for hoped-for referral business but also a resource which we can use to sell ourselves to our clients.  If I can move the ball a little way down the field, I'll feel like something was accomplished.

If a new attorney member of the CLLA is considering joining the CRS, what would you tell him or her about the benefits of Section membership?:    This Section is where you will derive the most benefit from your League membership - between the education, the knowledge base of the attorneys themselves and the ability to sell to clients that you can represent them in matters beyond your own borders because you know competent counsel in other states.

When you're not practicing law, or tending to League matters, what do you do for fun and relaxation?   I read.  And in the winter there's college basketball.  Go TarHeels.

If you did not become a lawyer, what do you think would have become your life's work?:   I would be a history professor.  That's what I meant to do when I got tricked into practicing law by that pesky need to eat.

What one thing do you think we would be surprised to know about you that most people don't already know?:   I'm really only 5'4”
 
What is your favorite quote, or words to live by?:   So many aphorisms, so little space … Anyway, my rule # 1 in life is “Never presume malice while stupidity is still available as an explanation.” 

Did you have any role models when you were growing up and in your career in practicing law thus far?  If so, who are they and why were they your role models?:    Atticus Finch.  Robert E. Lee.  Abraham Lincoln.   Each and together, they embody Compassion, Honor, and Wisdom – the three traits to which I most aspire (and usually find myself wanting).

What is your favorite:

Car:   Jaguar X convertible – just the most beautiful car on the road

Food:   Cajun.

Vacation spot:   The Big Island, Hawaii (or any Civil War battlefield)

Actress/Actor:  Living – Cate Blanchett and Ian McKellen.  Ever – Katherine Hepburn and Alec Guinness.

Movie:   The Seven Samurai

Holiday:   Yak Shaving Day.

Musical group/Singer:   Once, the Who.  Now.  Dave Brubeck.

Book:   I can't even pick a favorite from the last month.  No, that's cheating?  Okay, in that case, it's a tie between Dickens' A Christmas Carol and Seuss' How the Grinch Stole Christmas

Sports figure:  Michael Jordan

Editor's Note:  Livui Vogel, Esq. is a partner in the New York City law firm of Salon Marrow Dyckman  Newman & Broudy LLP. He heads the commercial collection department of his firm and his practice includes civil and commercial litigation, construction, real estate, and corporate transactions as well as business formations.

Beau presents Bobby with an appreciation gift and plaque

 

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CHASING AND ENFORCING A FOREIGN JUDGMENT

By Martin F. Goldman, Esq.

It started off simply enough in early 2005.  A typical telephone call from a forwarder asking if I could take on a case, post judgment, and enforce it against a local businessman.

However, as the facts unwound, it was determined that the default judgment had been issued in Korea in 2004, under their judicial system.  This sent me scurrying to the library for some quick research on the enforcement of Foreign Judgments. 

I was certainly familiar with the California laws under the Uniform Enforcement of Sister State Judgments.  Those laws provide for a summary proceeding whereby the sister state judgment is filed with the local court which immediately enters a California Judgment.

The court then issues a “Notice of Entry of Judgment” which acts like a traditional Summons.  That Notice must be served upon the judgment debtor who then has 30 days to challenge the newly entered judgment.  That challenge is statutorily limited.  It is not an invitation to re-litigate the merits of the case.  Instead, it is an opportunity to demonstrate that the original court lacked jurisdiction to determine the original controversy.

My quick research found that California has adopted a statute that parallels the Federal Foreign Judgment Act, California Code of Civil Procedure § 1713.  It removes the “summary” procedure from the enforcement procedures.  The Act provides that otherwise, all remaining provisions of the Uniform Sister State Judgment statute should be followed, essentially providing that the new enforcement action does not re-open the right to re-litigate the merits of the underlying foreign judgment. 

However, under the California statute, numerous reasons why the judgment would not be recognized are set forth and must be over-come.  A foreign judgment would not be deemed “conclusive” if:

  1. The judgment was rendered under a system which does not provide impartial tribunals, compatible with the requirements of due process.
  2. The foreign court did not have personal jurisdiction over the defendant.
  3. The foreign court lacked subject matter jurisdiction.
  4. The defendant did not receive notice of the foreign proceedings; the judgment was obtained by extrinsic fraud; the judgment is based upon facts that would be repugnant to the public policy of this State; or it conflicts with another final and conclusive judgment.

So, where to begin.  Well, let's look at the case record . . . The immediate problem was easily discovered, it was after all, written in the Korean language.  Although quite attractive, all those pictographs and curlicues were useless without a court certificated translation which was immediately ordered from a local translation company.

Once obtained, I discovered that the case had some unique issues.  The underlying transaction was almost 10 years old.  The papers had never been personally served upon the defendant, but instead, had been served under the Korean law dealing with “service by posting” and that the Korean judicial system had some procedural provisions that were quite different from those followed in most jurisdictions in the U.S.

So, we got started.  A lawsuit was drafted seeking entry of judgment upon a Foreign Judgment.  A triple sealed, exemplified copy of the Korean Judgment with court certified translation was attached to the original filing.  Thereafter, the local defendant/debtor was served with the summons and complaint.  (Application for and Notice of Entry of Judgment Upon Sister State Judgment)

After service, a call was swiftly received from opposing counsel.  He spouted all those reasons why my client could not possibly be successful in this endeavor.  His client had emigrated from Korea to the U.S. over 10 years earlier.  He had never received any notice of the Koran proceeding.

After overcoming the anticipated demurrer and procedural challenges, the initial status conference was “interesting”.  The first comment from the assigned judge was “What is this?”

In spite of his reasonably long tenure on the bench, he had never seen a proceeding such as this.  He inquired, do we set it for trial; do you determine this by motion; what do you suggest counsel?

The matter was set for a relatively early trial but it became obvious that I would have to both prove-up my case and educate the court on the law. 

The first order of business was to find an expert who could testify about the Korean judicial system.  After all, I needed to show that the court system itself was one that satisfied the U.S. standards of fair play and open tribunals.

That was more difficult that I thought it would be.

Since Los Angeles has an immense Korean population, I did not believe it would be difficult to locate a Korean/California licensed attorney who could testify as to the similarities of the 2 judicial systems.  Not so easy.

Apparently, it is extremely difficult to become an attorney under Korean law (We should adopt a page from them).  Once licensed, Korean attorneys rarely give up that right of practice by leaving their homeland.

There are many who become “of counsel” to large local firms, but most of them remain in Korea and simply consult or carry out business in Korean, not California.  Further, it seems most qualified potential experts were far more comfortable conversing in Korean rather than English.  I thought there would be nothing worse than trying to educate the court on the Korean Judicial System than through a translator.

Next came the defense's request to depose the client and the attorney who obtained the Korean Judgment.  Where and how to accomplish that task was an interesting negotiation.  Ultimately, it was decided to do them in Korea, so off to Seoul we went . . . (the potential topic of a completely different article).

It turns out that Korea has an interesting law dealing with the registration of all citizens.  It is a fundamental law which is used by all facets of the government from the cradle to the grave.  The law requires all citizens to register their primary residence address throughout their life in Korea.  It is a crime to not comply.

Amongst the uses of this system is the service of process for legal actions.  Upon commencement of a legal action, the plaintiff supplies to the clerk of the court, a certified copy of the “Citizens Registration” record for the named defendant.  The Clerk of the court then mails the “process” to the defendant to complete service.  If the mail is returned by the postal authorities, plaintiff's counsel must review the Citizen Registration records to submit amended instructions for service.  There is no provision that provides for instructing the court clerk to serve a Korean citizen at a location other than as shown on those records.  After subsequent mailings are returned by postal authorities, the law provides for the “posting” of service.  This process “posts” the service documents on the court's website for a requested number of days and thereafter, service is deemed complete. 

This was the procedure followed in my case and upon which the Korean court entered judgment.  Defense counsel argued that such a proceeding was offensive to our system of due process for several reasons.

He argued that the procedure did not shift the burden to the plaintiff to locate the defendant.  He further argued that under other sections of the Korean Civil Procedure Act, where a plaintiff was aware that a defendant had immigrated to a foreign county, it was incumbent upon the plaintiff to serve that party at the foreign country's consulate in Korea along with providing any information as to a local address.

Upon further consultation with my expert, the argument was easily overcome.  The Citizens Registration Act provides for immigration.  It does not require a Korean citizen to continue to register as they move from place to place in a foreign land. . .  but, does require that citizen to advise local authorities of the immigration from Korea.  Had the defendant registered his departure from Korea to the U.S. in 1994, those above cited provisions of the Service of Process Act would have “kicked in” and mandated service upon the U.  S.  Consulate in Korea.

However, the defendant's violation of the Citizens Registration Act requirements waived those obligations beyond the “posting” provisions.

On the day of trial, we were prepared.  The expert discussed in a professional manner, the Korean Civil Procedure provisions and compared those to U.S. Provisions of “service by publication and demonstrated their similarity.  If California law provided for publication in a small local newspaper which statutorily qualified as a “newspaper of general circulation” and which so rarely gave “actual” notice of service to a defendant, was the Korean System any less appropriate and contrary to a traditional notion of fair play and due process.

The Court agreed.

We introduced the Korean Court documents which had been authenticated by the Korean Court and appended to the deposition transcript of Korean Counsel taken in Korea.  Part of that package was the certified copy of the “Citizens Registration” page of the defendant.  We demonstrated that the Clerk of Court twice mailed service of process to the last entry on the page-the one entered in 1994!

My expert further testified that the Citizens Registration Act was a fundamental law in Korea.  No Korean citizen could possibly testify in good faith that they were unaware of its requirements. 

The information contained in the Registration is used for school registration, health benefits, military draft obligations, voters rights, disability, retirement and health benefits.  Clearly it is ingrained in every Korean citizen's day to day existence.

On cross-examination, it was easily adduced from the lips of the defendant, that he was aware of his obligations to register his whereabouts under the Act.

He found it difficult to fabricate an excuse as to why he failed to notify the authorities of his immigration to the U.S. in 1994.  But, the fact that he was evading criminal prosecution at the time for large white collar crimes and was therefore a fugitive, was not lost on the court in judging the defendant's credibility.

Well, we carried the day and a California judgment in excess of $4.5 million was entered. 

Now, the real work begins, since this fugitive has had over 10 years to bury his assets here in the U.S.

The saga continues, but that's another chapter.

Editor's Note:  Martin Goldman maintains his practice in Los Angeles, CA. where he specializes in the field of commercial collection.  He is a certified Creditor's Rights specialist, Past Chair of the Western Region of the CLLA, and has been recently selected as a SUPER LAWYER, for the publication of "Super Lawyers 2007", a title passed on to less than 5 % of all lawyers across the USA.  He can be reached at 310-470-8487 or marty@martylaw.com.

               

While Marty was reluctant to forward a picture, we have caught his wife, shopping (?) during the  New York meeting.

 

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HAVE YOU PAID YOUR CRS DUES? 

We can only keep this Section going through the monies raised by Section dues. The League and Section dues bills for 2007-08 will be going out shortly.  This is the last newsletter which will be sent to members who are not current in paying CRS dues.  The Practice Alert service will also be terminated for non-paid members.

CRS education continues to provide top-quality continuing education credits that make your meeting registration a bargain.  We are expanding those education efforts to better reach out to our members.  But we need your help.  CRS Practice Alerts provide regular updates on issues in the law which you can apply to your own practice, enhancing your collections and your ability to be a star for your clients.
 
Enhance your professional standing and your networking opportunities within the League by maintaining you CRS membership.

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Award of Excellence 

Nomination Form
Although the nomination deadline has passed for nominations for the 2007 Award of Excellence which will be presented at the April, 2007 meeting in Chicago, it is not too early to begin thinking about nominees for the CRS Award of Excellence for 2008.

The Creditors' Rights Section of the Commercial Law League of America is seeking nominations for its Award of Excellence, which was established to recognize outstanding contributions in the field of law affecting creditors' rights. The recipient must be a lawyer, legislator, professor of law, or judge, whose work has substantially and positively made an impact on creditors' rights. Nominations are being accepted through July 1, 2006, and should be submitted to the CLLA, including an explanation of those qualities and works which qualify the nominee for consideration. The Award will be presented at the annual Midwestern Meeting of the League held in Chicago in April 2007.  
The Commercial Law League of America is the nation's oldest organization of attorneys and other experts engaged in the field of commercial law, bankruptcy and reorganization. The League's objectives include elevating the standard and improving the practice of Commercial Law; encouraging an honorable course of dealing among its members and in the profession at large; and promoting uniformity of legislation in matters affecting Commercial Law. The Creditors' Rights Section shares in these objectives, and strives to promote the highest standards of professionalism, integrity and excellence in the field of creditors' rights while advancing the interests of creditors. Candidates for the Award of Excellence should have made substantial career contributions to further these goals.  
Please return nominations to:

The Commercial Law League of America
70 East Lake Street, Suite 630
Chicago, Illinois 60601
or by fax (312) 781-2010 

Deadline for nominations to be received by the CLLA: July 1, 2007

CRS Award of Excellence Nomination 

Name of Nominee:


Address:


Phone:


Fax:


Nominated By:


Address:


Phone:


Fax:



Explanation of contributions and qualities which support your nomination (attach additional pages as necessary):










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Calendar of Events

April 19, 2007 - April 22, 2007
77th Chicago Meeting:  Westin Michigan Avenue Hotel, Chicago, IL
First National Chicago

November 15, 2007 – November 18, 2007
New York Meeting:  Sheraton Hotel and Towers, New York, NY

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