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6 Big Mistakes People Make in Mexican Lawsuits

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6 Big Mistakes People Make in Mexican Lawsuits

It is 8:00am and you are drinking your morning coffee and there is a knock at the door. Jehovah's Witnesses? That neighbor wanting to borrow a cup of sugar? Who could it be? Oh it is Spencer... but wait... there are police are there and a bunch of Mexican guys in suits as well as a tow truck. What is 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 as many court orders for embargos have orders to enter forcefully and if not and you want to hide inside then the plaintiff's attorney will just apply for such an order and break in to serve you within a few weeks. 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. And when that’s compounded by being represented by bad attorneys, who don’t prepare their clients well or monitor the strict timelines involved, 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 (in a tenant/landlord or hospital promissory note dispute, for example,) and they decide to file a lawsuit, 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. The reason for that is so you won’t get rid of your assets and 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), usually accompanied by the police, plaintiff's attorney and a tow truck to get your car or a truck to take seized items, has a right to enter your house or to force entry as set out in the courts order admitting the lawsuit and approving the embargo, and they will not pay for damages (unless at the end you won 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, you can appeal the lawsuit later, and get it kicked out where they would reset the case to the time where you were served. Not knowing this is mistake number 2.

Once there, the court execution secretary will probably ask what property you want to place for collateral. That could 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 then the plaintiff's attorney may choose which items as defendants gets the first opportunity and if they refuse then they lose that right. 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 he’ll be right over. 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 who will not be able to change or stop what is happening. He wants to get the merchandise written, noted and / or loaded up and go. Second, no lawyers will show up in the 5 minutes they said they'd arrive and the court will not wait.

So, what’s your best bet? If you have the money the person says you owe, pay it on the spot, show receipts that it was paid and if you give cash or a check and 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 and hide 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 paper you’ve been served will state the date by which you (your attorney) has to file a response to the suit, which 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 days start the day after service and are court business days. This is a much shorter period of time than north of the border, where the norm is 30 days and where your time to respond is the later of the 30 days period or when the opposing party file a request to enter default with the court. 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 and failing to file a response within the time permitted by law will have you be in default and all the allegations made against you will be presumed true. If the time to respond has passed and the other side has not requested the court take your default, the court would still reject any response after the statutory time limits as untimely. Also in most cases you must list evidence and witnesses known to you in your response 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 go into the hearing cold, and are overwhelmed or confused by the proceedings and by the kinds of questions being asked. The party or witness needs to know what the issues in dispute are 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 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 able to have that evidence as part of the court record from which the judge will issue a ruling and the plaintiff can win the suit as you will have less 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 will lose their testimony. There’s no make-up time or delays save for a medical emergency. So, when the judge eventually decides on the case, if there is little or no evidence, the opposing side may win if they met their evidentiary burden.

These are the most common mistakes people make when they have to defend themselves in a lawsuit. It’s important for people to know their rights and how the legal system in Mexico can work for them or against them.

Here is a list of most of the procedures people will 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).

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.

Others:

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.

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

Thanks to Lisa Jorgensen for transcribing my ramblings into a coherent form.

Link to article http://mexicoexpatpress.com/issue/july/article/6-big-mistakes-people-make-in-mexican-lawsuits

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Spencer, I don't know what this community would do without you.

Muchas, muchas gracias.

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What do we do to prevent a pre-trial judgement and stop a plaintiff from seizing property?

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What do we do to prevent a pre-trial judgement and stop a plaintiff from seizing property?

Nothing really as many times they file the suit and then at the time of levy you find out, for most it is no surprise really, people owing 6 months or more of rent or owing thousands of pesos to a hospital.

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Nothing really as many times they file the suit and then at the time of levy you find out, for most it is no surprise really, people owing 6 month or more of rent or owing thousands of pesos to a hospital.

In the U.S. many states have a landlord lien that states that a landlord can enforce a lien against a tenant's property without a judicial order. The U.S. Supreme Court decided decades ago that no one can seize someone's property without a judicial order and to get that order the tenant must be notified of the hearing. Mistakes can be made and plaintiffs have lied so I don't understand why Jalisco allows a seizure without a defendant presenting his side before a seizure. I'm sure higher courts here have made the same decision as SCOTUS but Mexican higher court decisions are odd the way they are applied.

I would be concerned that some unscrupulous person could claim he is owed money, get an order, seize someone's property, skip out with the property before the defendant could petition the court.

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While ex parte prejudgment right to attach orders are rarely granted and used in the US, the informal economy and time consuming and expensive judicial process in Mexico coupled with the difficulty of collection of judgments makes them more common and useful.

Remember that only documents that are executive documents give the right to an ex parte prejudgment right to attach order, such documents commonly are apagare, condo fees due, professional's fee agreement signed in front of a notary. Otherwise the plaintiff would have to post a bond of 10% of the amount to cover potential damages. The reality is that this amount would probably not cover someone's real damages in an embargo.

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While ex parte prejudgment right to attach orders are rarely granted and used in the US, the informal economy and time consuming and expensive judicial process in Mexico coupled with the difficulty of collection of judgments makes them more common and useful.

Ex parte orders in the U.S. are illegal. With a landlord lien, the way the laws are written, the lien gives the landlord an illegal right to seize a tenant's property without a hearing. SCOTUS has ruled it is illegal but states keep the laws on the books.

My concern here was the defendant not being notified of a hearing before a judgement is given.

If the plaintiff must post a bond, have evidence to prove his case not just his verbal claim and the defendant should be aware of money owed such as hospital bills, then maybe there is an element of fairness and the judgement isn't abusive.

What about a tenant breaking a lease? Can a landlord file demanding the rest of the money in the lease or must he first go to court for a fair hearing with the tenant so the tenant can give legal grounds for breaking the lease? I know people in this situation right now.

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Ex parte orders are not illegal per se in the US but if there are not exigent circumstances warranting them then they would be in violation of people's rights and my experience has been that ex parte orders are granted on a temporary basis in the US with validity only until a future full evidentiary hearing.

With a tenant breaking a lease, the landlord has the lease document as well as the state code stating that with 2 months delinquent rents and payment of a bond they have the right to an embargo, these cases are summary in nature and during the course of the suit the defendant tenant can make their case.

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Biggest mistake would be getting involved in a lawsuit in a country like Mexico. Lord knows it is bad enough NOB.

If they break the lease, keep the deposit and go find another tenant. Not worth the hassle of trying to enforce a lease. It is the same NOB for the most part. I have found this to be true whether renting single family homes, apartments or office space, all of which I have many years experience with.

When it comes to litigation, mainly who "wins" are the lawyers.

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A friend had lived in a rental house for less than a month when she was beaten there within an inch of her life. After a period of recovery at she returned to the house and told the onsite owners she would be moving out. She thought they understood. They sued her for the total amount of the lease and are winning. Its ongoing but its costing a lot financially and emotionally.

She should have offered to pay 3 months rent for them to sign a cancellation of her lease. Always if you offer people a hunk of cash they will take it.

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I was the one who knocked on her door along with the court staff and tow truck (sounds very familiar). Another thing to mention in Mexico is in landlord tenant law giving up a property and stopping rents from accruing and being due and payable is twofold, there is giving up physical possession which is moving out as well as giving back the landlord the keys. Failure to do either one and the rents keep accruing. In this case the keys were allegedly given to an attorney who held onto them and didn't turn them in thereby the rents were accruing each month (for many months) even though the person had moved out of the property.

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A friend had lived in a rental house for less than a month when she was beaten there within an inch of her life. After a period of recovery at she returned to the house and told the onsite owners she would be moving out. She thought they understood. They sued her for the total amount of the lease and are winning. Its ongoing but its costing a lot financially and emotionally.

She should have offered to pay 3 months rent for them to sign a cancellation of her lease. Always if you offer people a hunk of cash they will take it.

Is the landlord a foreigner or Mexican? Did she turn the lease over to an attorney to defeat the lease? There are very few leases in Mexico that are legal. When it comes to money most landlords do not understand nor care, all they want is the money.

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Probably is the same situation. This is one of those instances where naivete and lack of solid advice was compounded with emotion. There is nothing emotional about money. The idea that Mexican landlords are unsophisticated is not only naive but foolish.

When you are not prepared to frame the question and control the answer you must be prepared to let the other guy make the decisions.

The old adage that if you know the rules you can break them doesn't work here in Mexico. Its not possible to move here and acquire the compounded knowledge of a lifetime about what the consequences might be when you break the rules.

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A Police Officer was at our house today and they had mentioned that a foreigner was just deported to Texas, don't know any details but it had to do with $50,000p owed for something. My Spanish isn't the greatest but this is all I got out of the conversation, so it does happen.

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Probably is the same situation. This is one of those instances where naivete and lack of solid advice was compounded with emotion. There is nothing emotional about money. The idea that Mexican landlords are unsophisticated is not only naive but foolish.

When you are not prepared to frame the question and control the answer you must be prepared to let the other guy make the decisions.

The old adage that if you know the rules you can break them doesn't work here in Mexico. Its not possible to move here and acquire the compounded knowledge of a lifetime about what the consequences might be when you break the rules.

If Spencer was representing the landlords in the seizure they are probably foreigners not Mexican. If the landlord (s) is foreign then the tenant who quit her lease because she was attacked can probably successfully fight back, Few foreign landlords pay tax on the rent to the Hacienda, Mexican IRS. If the landlord had an FM3 when he started collecting rent or a Temporado now, I doubt he ever got permission to earn money in Mexico.

If the tenant calls or has someone call Hacienda to check on taxes paid on the rental properties the landlord can lose everything and be kicked out of the country. I think if faced with that the landlord might want to be reasonable.

If the keys were given to an attorney and the landlord knew it, the landlord was being a real jerk by not retrieving the keys and letting the rent accumulate. In the U.S. she could have successfully sued the landlord for someone entering the property and beating her. The landlord certainly would not get any sympathy for allowing rent to accumulate and seizing the woman's property.

Attorneys can say "No" to representing clients.

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Not sure, but I think that the scenario that Spencer was mentioning was where he was acting as an official certified translator, accompanying court officials.

I know that Spencer was there when some friends of mine had the early morning visit. In that case there were papers presented, but property was not seized. In any case, when the folks called and told me that they needed a Lawyer... I suggested Spencer and gave them his number. When they called to set up an appointment he explained he was the one translating at their door step that morning! He was kind and helpful to them in any case and was able to recommend an honest Lawyer.

I think that this posting is very, very important to print and keep around. I know a number of people who have signed notes at hospitals and have no intention of paying. I will send them a link to this posting.

And guess what, folks: Do not assume that you will not get a knock on the door in some other State or Country if you flee. Where there is a trade agreement it includes a mechanism to enforce judgments in foreign Countries. In order to trade effectively, there has to be a way to settle disputes and collect on judgments. You can run, but you can't hide forever. Its best just to work it out and move on.

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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.

True he did not write that he was the plaintiff's attorney.

My suggestion was for the tenant who was beaten, and I'm sure has PTSD after being attacked and she is not thinking clearly, how she should fight back since she did everything she thought was correct. Her mistake was giving the keys to an attorney which allowed the rent to accrue. If that is the true story, the landlord is being abusive.

People should know if they have a hospital bill they are expected to pay it. This isn't the U.S. where it will be turned over to a debt collection agency. I don't know how true it is but I've heard of people being threatened with arrest for not paying a hospital bill.

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Regarding rentals - not sure if this is relevant yet might help someone in the future - we always make sure to include a clause that we have the right to break the lease with a month's notice. That way the most we could owe is 1 month of rent for the option of being able to leave due to the unexpected. If the landlord doesn't want to accept the clause then one would look elsewhere, but in all these years of renting from Guadalajara to Ajijic, we have not met one who doesn't accept it. It doesn't stop the landlords from delaying returning the deposit, but it does prevent one from being liable for the entire term of the lease.

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