Courts' views toward gambling have changed over the years. In the past, it was common to find that public policy would not allow foreign judgments on gambling debts. Now, one has to be knowledgeable of a particular jurisdiction's proclivities toward gambling debts in trying to recover the debt.

For instance in 2008, a Florida bankruptcy judge refused to enforce a gambling debt incurred on a cruise ship. There, the court decided that such debts are void under Florida law.

However, Nevada is not so limiting. In 2009, the Bellagio in Las Vegas sued accused ponzi-schemer, Allen Stanford, for repayment of a gambling debt of more than a quarter million dollars. But, that suit still begs the question. Where can the Bellagio enforce or recover a gambling debt. That inquiry requires one to determine where assets are located for collection. Once the jurisdiction is determined, then the issue arises how to recover on those assets.

A recent case in Singapore is illustrative. There, Caesar's Palace asked a Singapore court to stop businessman Poh Soon Kiat from transferring his share in a California property to a British Virgin Island company. The Singapore court overruled the High Court in permitting an overseas casino from enforcing a foreign court decision. The court mentioned that it would allow a foreign casinos to recover lost cash if they were applying a fixed sum. In other words, the casino could recover a fixed sum of money, but not property. If a judgment for a fixed sum is obtained, then execution proceedings can be used to seize a gambler's assets and claiming the debts for the sale in Singapore.

Recovering gambling debts in foreign jurisdictions are not any different than recovering other kinds of contract or tort claims. One needs to identify where recovery can be achieved and determine how the foreign laws apply to permit a recovery.

The Federal discovery rules in the United States can be extremely effective for use in foreign proceedings abroad and more importantly, can be used where discovery is otherwise limited by foreign laws. With countries who are signatories under the Hague Convention, a party can petition for issuance of a letter of request to take evidence abroad. Or, it can be more effective to apply directly to the U.S. courts for discovery under 28 U.S. C. Section 1782.

For instance, in the Netherlands, Dutch courts have held that evidence obtained under Section 1782 may be used in proceedings there.  Under Dutch civil procedure, a party may request production of documents. Courts have decided that only documents relevant to the outcome of the proceedings will be produced and to grant such request, the  applicant's claim must be well-reasoned and at least not be obviously without merit. If it is not certain that the documents exist, Dutch courts will not order their production. There is also a conflict among court decisions as to whether only documents where the applicant is a party to the legal relationship can be produced. Hence, Dutch discovery can be very limiting.

On the other hand, discovery under U.S. rules is much more broad-based. Thus, if evidence exists in the U.S. for use in the Netherlands, Section 1782 can be utilized to obtain it. Dutch courts have ruled that evidence obtained pursuant to Section 1782 is admissible in the Dutch proceeding since it was not unlawfully obtained.

Therefore, when pursuing a recovery in foreign countries, a party can seek and use discovery procedures that are much broader in scope in the U.S. Parties should not feel confined to having to institute U.S. proceedings in order to access and take advantage of U.S. discovery.

In the past, creditors were unable to recover against cash owned by the debtor. As of November 23, 2009, that will change under Part 8 of the Bankruptcy and Diligence etc (Scotland) Act of 2007.

If a creditor obtains a judgment and serves a charge for payment that expires with no money having been paid, then a creditor can instruct the sheriff to carry out a money attachement. A sheriff has no power to enter homes so practically such an instruction will be carried out at a place of business. It must occur between Monday-Friday from 8am to 8pm.

There is a presumptioin that money (it can be negotiable instruments, promissory notes, money orders or currency) found on the premises belongs to the debtor, although the sheriff must make reasonable inquiries. The sheriff must submit a report to the court and the creditor has 14 days to apply to the court for a payment order authorizing the sheriff to release the money. The debtor or third party can contest the payment order and a hearing will then be held. A debtor can request a return of the money on the basis that the attachment is unduly harsh.

The new rules are fairly simple, but need to be followed precisely. The real difficulty will be for a court to determine ownership.

Financial institutions have fallen victim to mortgage fraud schemes where collectability is a nightmare because it has gone off-shore. This article explains what needs to be considered to pursue a recovery. It can be done!

In international asset recovery, winning in court is only half the battle | Articles | Asset Forfeiture News | AssetRecoveryWatch.com - Government Seizure, Asset Forfeiture, Civil Asset Forfeiture, Criminal Forfeiture, Asset Forfeiture Law, Asset Forfeiture Training.

In the United States, trash is deemed abandoned property and can be collected and used by others. Likewise, in other countries, the same proposition may hold true.

Earlier this year in Canada, the Supreme Court in R v. Patrick, found that an individual who had placed the trash for collection at the rear of his property had abandoned his privacy interests inthe contents of the bags at the curb. Even though the trash bags were within the property of the individual discarding them, the court found that a "reasonable person would not expect that garbage is secure and private and would conclude that garbage is not obviously private in nature."

For those trying to track down assets for recovery, trash collection, if permitted by that country's laws, is an excellent discovery tool.  On a daily basis, persons throw out credit card bills, bank statements and pay slips. The amount of personal and business information one can develop from discarded information cannot be overlooked.

An Illinois court recently addressed a judgment creditor's efforts to turnover assets in offshore trusts. The Court in Dexia Credit Local v. Rogan, 2009 WL 648634 (N.D. ILL. 2009), determined that under Illinois law, courts will not honor a choice of law provision where to do so would violate Illinois public policy.

There, Rogan created a self-settled trust where the trust documents specified that Bahamian law applies. A self-settled trust is where the settlor is also the beneficiary. This trust had a spendthrift provision where it prohibited the beneficiary's interests from being assigned and from being attached by creditors. Such spendthrift provisions are permitted in the Bahamas. But, in Illinois, and in most other U.S.jurisdictions, it is void. Since Bahamian law is contrary to Illinois public policy, the Court would not apply Bahamian law to the construction and operation of the trust and held that the judgment creditor is entitled to execute on the asset of the trust.

The Rogan Court further noted that with a self-settled trust where the settlor is one of the beneficiaries and contains a spendthrift provision where Florida law applies, a creditor can reach assets up to the maximum amount the can be distributed to or for a settlor's benefit. Thus, a creditor can reach income if the settlor can only receive income or the entirety of the trust if the settlor can receive the entire corpus.

Thus, creditors can reach trust assets in self-settled trusts located offshore, but the extent of that reach is determined by the law of the state where the judgment is being enforced.

Money laundering refers to a process where "dirty" money is rendered clean. The techniques and ways to launder are endless. Nonetheless, the concept is the same. It involves channeling the ill-gotten funds into the legitimate financial system. It then involves obfuscation by employing a series of complex, second-level transactions designed to separate the proceeds from their original origins. This aims to place barriers to link assets with the illicit source. Layering typically involves use of trusts, shell companies and a multitude of accounts. These accounts are frequently held in fictitious names or aliases or in the names of nominees or companies. Insurance and re-insurance vehicles are being used as well.

On May 20, 2009, the Fraud Enforcement and Recovery Act of 2009 ("FERA") was enacted. FERA amends the federal money laundering statute to extend the definition of "proceeds" under that statute to include the gross receipts of illegal activity, rather than just profits derived from it as the original definition described.

 It is a crime to conduct, or attempt to conduct, a financial transaction involving "the proceeds of specified unlawful activity" if the perpetrator knows that the property involved "represents the proceeds of some form of unlawful activity" and a) has the intent to promote the carrying on of the specific unlawful activity or b) has the intent to engage in conduct constituting a violation of the IRS Code or c) knows that the transaction is designed in whole or part to conceal or disguise the nature, the transaction location, the source, the ownership, or the control or the proceeds of the specified unlawful activity or d) knows that the transaction is designed in whole or part to avoid a transaction reporting requirement under federal or state law. 18 U.S.C. Section 1956 (a) (1) (A)-(B). Cross-border transport of such proceeds is also prohibited under Section 1956.

Thus, under the FERA, the proceeds that are the subject of Section 1956 are now gross receipts, rather than just profits. It makes proof of money laundering much easier since proof of ill-gotten funds are easier to develop, than a profit making analysis. For civil litigants, it is now simpler to establish money laundering as the basis of the fraud to convince foreign courts that the cross-border transport of ill-gotten funds should be restrained.

The trust protector is a person who plays several roles. It may bepolicing the trusteeship or enforcing the trusts as if he were the sole beneficiary. A protector can be given the responsibility to supervise and approve trustee actions. Yet, the protector is not the trustee and cannot carry out the functions of a trustee. Consequently, the protector is not accountable to the beneficiaries. A protector instead looks after the interests of the trust settlor in creating the trust.

The protector most often intervenes between the trustee and the the beneficiary, acting as a mediatoror. The protector polices the trustee, overseeing the administration of the trust with the focus on preserving the settlor's intentions. It is said that a protector is really about the retention of settlor influence if not control. Specific powers generally given a protector are:

• monitoring trustees fees
• periodic reviews of the administration of the trust
• power to nominate auditors
• veto power over discretionary payments by trustees
• veto power over sales of shareholdings or trust property
• remove and appoint trustees

It is the last power that has the raised awareness of protectors. When faced with creditor actions, the protector can change trustees to protect the trust assets. In that way, the settlor's intentions are preserved. The trust is removed from the reach of creditors and oftentimes moved from the jurisdiction to make detection more difficult. To reach an offshore trust, a creditor has to know the protective devices employed so that a recovery strategy can be designed to overcome the barriers presented by a protector.

Trusts are meant to protect assets. In reality, the level of protection will depend upon the trust law in the jurisdiction chosen, the physical location of the assets held and the rigour with which a Court may allow such assets to be attacked.

Where the law of Mauritius in the proper law of the trust, the Court there will not vary or consider laws of other jurisdictions.

The Mauritius Trust Act 2001 applies a two year rule. Essentially, no action will lie against a trustee of a trust after more than two years from the date the assets were transferred to the trust. However, a Court may declare a trust void where it is established that the trust was created with the intent to defraud creditors of the settlor of the trust at the time when the trust property vested in the trustee. Moreover, the doctrine of "sham" provides an avenue to set aside the integrity of the trust if it is clear that the settlor established the trust with every intention of carrying on as if the assets were still his own.

Thus, creditors should understand that the use of Mauritius trusts can only be overridden on limited bases.

With ponzi schemes and similar frauds coming to light recently because of the economic turmoil, the availability of pre-emptive remedies to seize assets is an important concern for litigants. Whether one calls them freezing orders, Mareva injunctions, pre-judgment injunctions or some other identifier, orders thatseek to prevent a party from disposing of assets seems to be available in many jurisdictions, usually through ex parte applications. The requirements for obtaining a freezing order differs from jurisdiction to jurisdiction, but the remedy remains the same whether assets are held by the defendant or by third parties.

For instance in Canada, pre-emptive remedies are available ex parte to preserve assets and enjoin further concealment or transfer. Canada seems to have gone further than other jurisdictions by allowing the claimant to participate in the raid to identify and discover evidence at the defendant's or third parties' premises. In that situation, a court appoints an independent supervising solicitor who attends the raid to ensure that rights are not violated and the order is properly followed.

In Argentina, pre-emptive measures are likewise allowed under federal and provincial law. In addition to attachment orders and injunctive relief, courts have allowed Anton Piller type orders to seize evidence to preserve it. All of these measures are available at a third parties' premises.

In Austria, pre-emptive remedies of attachment and restraint orders are available. But, Anton Piller type orders are not.

In the United Kingdom, courts are moreflexible and creative than legal systems where legal systems are defined by statutes. Engish courts are credited with inventing Mareva injunctions, Anton Piller orders and Norwich Pharmacal orders for pre-suit discovery. A further advantage in the English system is that courts can actually tailor make remedies, including an interim order that not only restrains a party from disposing of assets but also orders that party to disclose certain documents  or a search and seizure order that requires a defendant to allow a claimant's solicitor to search the premises and remove evidence. Also, remedies are afforded to parties involved in foreign proceedings, not only those involved in UK proceedings.

The United States is not a litigator's paradise when it comes to pre-emptive remedies. Asset freezes and preliminary injunctions are much more difficult to obtain. Asset attachments can only be ordered if certain statutory criteria are met. Preliminary injunctions, if not permitted under certain statutes, can only be obtained where equitable relief is sought.