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Offline Martin

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Brazilian court demands more money
« on: January 16, 2010, 07:54:35 AM »
This is curious: the Brazilian court is demanding that I deposit the equivalent of £1,784.46 sterling or $US2,908.18 as a form of guarantee since I am, in their words, "a foreigner, resident abroad". They also say that this is twice the minimum amount for litigation (no indication on how they arrived at this figure). I have 10 days from 15th January to do this, it is the weekend now (no clarification on whether this is 10 working days or not) and, if the money is not deposited by then (actual deadline not clear), I will be found against and the case will be thrown out.
 
Is this normal procedure in Brazil or is it an attempt to bleed me dry in the hope that I will simply be unable to fund my struggle? Are there dark forces making discreet phonecalls?
 
 
    SÃO JOSÉ DOS CAMPOS Infância e Juventude



    1663/09 AÇÃO DECLARATÓRIA DE NULIDADE DA DECISÃO DE GUARDA PROVISÓRIA E NULIDADE DA SENTENÇA DE ADOÇÃO COM DESTITUIÇÃO DO PÁTRIO PODER menor: R.R.B.. Despacho de fl. 528: Vistos. Fls. 527/vº: manifeste-se o autor, em dez dias. Tendo em vista o disposto no art. 835 do Código de Processo Civil, que o autor é estrangeiro, residente no exterior, considerando, ainda, a complexidade do feito e a multiplicidade de réus, bem como a Tabela da OAB/SP, fixo o valor da caução devida em R$ 5.122,76, ou seja, o equivalente a duas vezes o valor mínimo para ações de jurisdição contenciosa (parte geral, item 1). Concedo o prazo de dez dias para depósito judicial, sob pena de indeferimento e extinção....

Offline André Felipe

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Re: Brazilian court demands more money
« Reply #1 on: January 16, 2010, 09:04:33 AM »
Art. 835. O autor, nacional ou estrangeiro, que residir fora do Brasil ou dele se ausentar na pendência da demanda, prestará, nas ações que intentar, caução suficiente às custas e honorários de advogado da parte contrária, se não tiver no Brasil bens imóveis que Ihes assegurem o pagamento.
 
Unfortunately it's normal to anyone, foreigner or brazilian, who lives abroad, or will leave the country, and does not have any properties inside Brazil's territory, in order to start a judicial action. According to the judge, it's twice the minimum amount because there are more than one defendant in the proceeding.
 
Martin, isn't there any judicial action at the federal levels?
 
Quote from: Bindlerkids;65753
guarantee WHAT?

To guarantee the payment of the proceeding's costs and the other parties' costs, in the case of Martin loose the case. As he does not have any property inside the territory, the law considers it's the only way to give such guarantee.

Offline tweinstein

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Re: Brazilian court demands more money
« Reply #2 on: January 16, 2010, 09:18:39 AM »
It sounds like you are using a private attorney. I am using the AGU for counsel and have never been asked for a penny.

Offline Martin

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Re: Brazilian court demands more money
« Reply #3 on: January 16, 2010, 10:40:17 AM »
Unfortunately, I can't pursue this through the Hague Convention at federal level now; My Hague Convention case collapsed when my daughter reached 16 - it had been my ex's strategy all along firstly to ignore the central authority when they tried to contact her, then to lie to them (including impersonating a lawyer on the phone) and then to hide so that things could be drawn out indefinitely - she and her mother concocted a complex web of lies and deceit over her whereabouts so that she could never be pinned down and summonsed by the federal courts. This strategy worked partly because of laziness, inefficiency and lack of will on the part of the central authority itself. When my daughter reached 16 and the AGU informed me that they would not be pursuing the case, I went to Brazil in person and was thrown into prison on a charge of non-payment of child support. When I was in prison I was informed that my daughter had been adopted by her step father and that my father's rights had been legally removed. I had never been summonsed or informed for either of these things despite the fact that my inlaws had been in talks with my then lawyer in SP and had said that the 'family' had nothing against my seeing my daughter - only that she had to be 'psychologically prepared' (who was to carry out this psychological preparation is another story). All the time, they were working away through another court in another town to get my father's rights removed and my daughter adopted.
 
The purpose of this action in the state of Sao Paulo is to get this fraudulent adoption reversed. If the federal authorities wanted, they could do something about it but they don't and they won't because the British government simply does not have the will to put pressure on them in the way the US government did in Sean Goldman's case (see stuff on internationalising this and getting legislators across our different countries in touch with each other).
 
As far as property in Brazil is concerned, the court might like to ask my ex about all my personal effects that are in her posession and are worth well in excess of the amount we're talking about here.
 
This is like a never ending nightmare that continues after you wake up and just goes on and on and on and on and on and on and on.

Offline André Felipe

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Re: Brazilian court demands more money
« Reply #4 on: January 16, 2010, 11:20:03 AM »
that's really awful history, martin, I hope you continue to have strenght in this struggle. Some day your daughter will understand the terrible thing her mother did, and what you tried and are trying to do. Indeed, I read on some websites that the Hague should not be applied in your case, because the "habitual residence of your daughter was, in fact, in Brazil". Unfortunately, you have to continue the fight at the State Justice.
 
To avoid the payment of this guarantee, you have to demonstrate to the judge you have properties in Brazil, any documents you have about these properties should be shown to the judge. As it's a very serious situation (it can close your case), I recommed you first pay the guarantee and after you demonstrate your properties and recover the money, just to ensure your case is not going to be closed.

Offline SageDad

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Re: Brazilian court demands more money
« Reply #5 on: January 16, 2010, 11:28:28 AM »
Unreal that you have to pay a $3,000 surety to even file a case.  Talk about unequal access to justice.

Andrei, you said that this money covers the proceedings costs (and other parties) if Martin loses.  Does this mean the court may get to keep some of that money if they decide against him?  I don't really like the idea of there being a financial incentive for a court to decide one way or the other.  Also, do you know if these are natural days or working days within which he has to pay?
“What you seek is seeking you.”
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Offline Martin

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Re: Brazilian court demands more money
« Reply #6 on: January 16, 2010, 11:58:37 AM »
Quote from: André Felipe;65771
that's really awful history, martin, I hope you continue to have strenght in this struggle. Some day your daughter will understand the terrible thing her mother did, and what you tried and are trying to do. Indeed, I read on some websites that the Hague should not be applied in your case, because the "habitual residence of your daughter was, in fact, in Brazil". Unfortunately, you have to continue the fight at the State Justice.
 
To avoid the payment of this guarantee, you have to demonstrate to the judge you have properties in Brazil, any documents you have about these properties should be shown to the judge. As it's a very serious situation (it can close your case), I recommed you first pay the guarantee and after you demonstrate your properties and recover the money, just to ensure your case is not going to be closed.

Yeah, well my lawyer just emailed and said he 's going back to the court on Wednesday next week so he needs the money by then. Do you have links to these websites that mention my daughter's habitual residence, Andre Felipe?

Offline André Felipe

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Re: Brazilian court demands more money
« Reply #7 on: January 16, 2010, 12:17:03 PM »
Quote from: carlos;65773
Unreal that you have to pay a $3,000 surety to even file a case. Talk about unequal access to justice.
 
Andrei, you said that this money covers the proceedings costs (and other parties) if Martin loses. Does this mean the court may get to keep some of that money if they decide against him? I don't really like the idea of there being a financial incentive for a court to decide one way or the other. Also, do you know if these are natural days or working days within which he has to pay?

Yes, if he loses, the Court will keep the amount necessary to cover the costs of the proceeding and the other parties' cost with attorney. If there's money left, the rest will be returned to Martin. This cost of the attorneys is not the same cost the other parties are paying for private lawyers. The proceedings' cost is not really big (usually a few hundreads or thousands), what one party usually most expends in a judicial case is with private lawyers (+90% of the costs). If he loses, Martin won't have to pay what his ex-wife is paying with private lawyers, neither her if he wins.
 
The starting day, and the final term will be on working days. Martin will have to know on which day the decision was published at the oficial press (his lawyers may know the term). If it was published on Friday, the term begins on Monday (or the first following working day, in case of Monday be holiday), and if the final term ends in a Saturday, it will be extended to Monday (or the first following working day, if Monday is a holiday).
 
Quote from: Martin;65778
Yeah, well my lawyer just emailed and said he 's going back to the court on Wednesday next week so he needs the money by then. Do you have links to these websites that mention my daughter's habitual residence, Andre Felipe?

http://oglobo.globo.com/pais/mat/2009/12/24/sequestro-internacional-de-filhos-cresce-com-globalizacao-915352064.asp
 
at the 18th paragraph, it says your daughter's habitual residence is Brazil.
There are others links, but they are just a copy of this text.