6 Steps To Domesticate A Foreign Judgment In Indiana
June 29, 2015
If you hold a judgment entered in a state other than Indiana, and if you believe the judgment debtor has assets in Indiana that could satisfy the judgment, then keep reading. The hoops through which you must jump to reach those assets are outlined in Indiana Code § 34-54-11 “Enforcement of Foreign Judgments.”
I.C. § 34-54-11. Enacted in 2003, and amended in 2010, this Indiana statute tells you just about everything you need to know. Here are the six major steps:
1. Wait at least twenty-one days after the entry of the judgment in the original (non-Indiana) court.
2. File a copy of the foreign judgment, authenticated in accordance with 28 U.S.C. 1963 or any applicable Indiana statutes, in the clerk’s office of any Indiana county.
3. File an affidavit, signed by the judgment creditor, with the clerk that states: a. the name/address of the judgment debtor; and b. the name/address of the judgment creditor.
4. Send a notice of the filing of the foreign judgment to the judgment debtor. Ensure the clerk also has sent the same notice to the judgment debtor. See, I.C. § 34-54-11-2(b) and (c). The clerk’s notice specifically must contain: a. the name and address of the judgment creditor; and b. the name and address of the judgment creditor’s attorney, if any.
5. File proof of your mailing from #4 with the clerk. (Please note: the lack of mailing by the clerk does not affect the viability of the proceedings so long as the judgment creditor files proof of its mailing to the judgment debtor.)
6. Pay a filing fee, which is $141 currently.
Once the filing and notice requirements have been met, the judgment creditor is free to proceed as if it holds an Indiana judgment. In other words, you may begin to enforce the judgment by execution or other process.
Statutory changes – mailing and timing. The 2010 amendments deleted the requirement for more traditional constitutional service of process (i.e., certified mail or proof of hand delivery). Instead, it would appear that an overnight-type mailing, which establishes delivery to the address, should suffice. Finally, there is no longer a statutory twenty-one day waiting period to begin post-domestication execution proceedings from the date of delivery of the notice. Execution can commence as soon as steps 1-6 have been met.
Defenses. My understanding always has been that, in cases of domesticating foreign judgments in Indiana, the judgment debtor’s (the defendant’s) only defense relates to jurisdiction. In other words, the judgment debtor only can attack the validity of the judgment (halt enforcement) by establishing that the original court did not have the power to enter the judgment in the first place – an unlikely scenario. Otherwise, the judgment essentially is presumed to be valid, and the underlying case will not be re-litigated in Indiana. The other potential barrier is if the defendant files an appeal in the original case. An appeal generally will stay the enforcement of the foreign judgment in Indiana until the underlying case concludes.
Old school. I.C. § 34-54-11-5 states that the statute “does not impair” the right to bring an action to enforce a foreign judgment by other means. Before the enactment of the statute, it was common to file a complaint to domesticate (certify) the non-Indiana judgment and to follow all the normal rules and procedures applicable to new lawsuits. I no longer see a benefit to this course of action. The new statute now allows the judgment creditor, initially, to bypass the judge because a separate Indiana court order domesticating or certifying the foreign judgment is not required, unless the debtor files a notice under Sections 2 or 4. The statutory formula should result in the enforcement of a foreign judgment more quickly and, therefore, more inexpensively.
If as an out-of-state judgment creditor you need to pursue the assets of a judgment debtor that are located in Indiana, please contact me or another Indiana lawyer to assist with the process. I.C. § 34-54-11, the relatively new “Enforcement of Foreign Judgments” statute, is your ticket to an expeditious and cost-effective enforcement of your lien.