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Context:

The text in quotes below is an excerpt from a hypothetical Private Settlement agreement between a Defendant (debtor) and Plaintiff (original creditor) in a state district court (United States). In this scenario, the Plaintiff has agreed to settle a debt and dismiss the case without prejudice. The Plaintiff will only reinstate the case if the Defendant fails to fulfill the financial obligations noted in the settlement agreement (i.e. failing to make payments per the payment schedule).

Let’s say the Defendant moves out of the country and then defaults on the settlement agreement. Let’s also say that it is not possible for the Plaintiff to prove that the Defendant has received fourteen days notice of said submission (Proof of Service)

Note that the terms of the Private Settlement agreement state that the Court, upon review of the Affidavit AND Proof of Service, shall enter judgment.


Private Settlement Agreement Excerpt

"In the event Defendant fails to pay in accordance with this Agreement, Plaintiff may submit an Affidavit of Non-Compliance setting forth the facts of non-compliance and stating the balance due and owing, along with Proof of Service that the Defendant has received fourteen days’ notice of said submission.

The Parties agree that the Court, upon review of the Affidavit and Proof of Service, shall reinstate the case and enter Judgment against the Defendant in the amount of $XXX,XXX as stated in the Complaint, plus costs, less any payments that have been made."


Questions

  1. What would the Plaintiff’s recourse be in this case?

  2. What happens if the Proof of Service—indicating that the Defendant has received fourteen days notice of said submission—can’t be filed—due to proof of service limitations in foreign countries? (My initial impression is that there may be jurisdictional issues given that the Defendant has moved out of the country.)

  3. Additionally, given that the language of the agreement requires the Proof of Service to show that the Defendant has received fourteen days notice, how can the Plaintiff prove that without some sort of document from the Defendant that is signed and dated?

  4. However, given that the Court has initial jurisdiction, what sorts of complications arise when a case is re-filed but the Defendant is no longer living in the same jurisdiction?

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  • Usually, if this situation is at all foreseeable, service by mail to a designated address or to an easily located agent for service of process is authorized in the settlement agreement (expressly waiving the requirement of personal service in a lawsuit that would otherwise apply), and jurisdiction and venue are consented to in advance in the agreement.
    – ohwilleke
    Aug 4 at 23:09
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  1. What would the Plaintiff’s recourse be in this case?

Find and serve the defendant.

  1. What happens if the Proof of Service—indicating that the Defendant has received fourteen days notice of said submission—can’t be filed—due to proof of service limitations in foreign countries? (My initial impression is that there may be jurisdictional issues given that the Defendant has moved out of the country.)

You are submitting the Proof of Service in California. California recognises service in foreign jurisdictions Provided they complied with foreign law.

  1. Additionally, given that the language of the agreement requires the Proof of Service to show that the Defendant has received fourteen days notice, how can the Plaintiff prove that without some sort of document from the Defendant that is signed and dated?

They get a declaration from the person who served it or they show the receipt for the certified mail or whatever proof is necessary for the particular method of service used.

  1. However, given that the Court has initial jurisdiction, what sorts of complications arise when a case is re-filed but the Defendant is no longer living in the same jurisdiction?

Theoretically none. Practically, if they have no assets in California, enforcing any judgement becomes more difficult.

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