Opinion
Index No. 530503/2022
07-10-2023
KINGDOM OF SWEDEN ON BEHALF OF the SWEDISH BOARD OF STUDENT FINANCE (CSN), Plaintiff, v. Milena Daniella Koste PASHKOVSKI, Defendant.
Stephen Norman Weiss, New York City, for Plaintiff. Milena Daniella Koste-Pashkovski, Defendant pro se.
Stephen Norman Weiss, New York City, for Plaintiff.
Milena Daniella Koste-Pashkovski, Defendant pro se.
Aaron D. Maslow, J. Having heard oral argument on the record, the within motions are determined as follows.
Background
On July 22, 2022, the Örebro District Court in Sweden issued a default judgment ("Swedish default judgment") to The Swedish Board of Student Finance against Milena Daniella Koste Pashkovski ("Defendant") in the amount of 282,260 Swedish Crowns (SEK), ostensibly for unpaid student loans. On October 20, 2022, the Kingdom of Sweden ("Plaintiff") commenced the instant action against Defendant by summons and notice of motion for summary judgment in lieu of complaint to domesticate the Swedish default judgment against Defendant on behalf of The Swedish Board of Student Finance. (See generally NYSCEF Doc Nos. 1-6.) Plaintiff claimed the right to do so pursuant to New York's Uniform Foreign Country Money Judgments Act, appearing at CPLR Article 53. Defendant cross-moved twice, once to dismiss the action with prejudice (Motion #2) and once for summary judgment in her favor (Motion #2).
In the documents submitted in this case, Defendant's name has appeared variously as Milena Koste, Milena Daniella Koste Pashkovski, Milena Kostepashkovski, Milena Koste Pashkovski, and Milena Daniella Koste-Pashkovski.
Apparently the Swedish Board of Student Finance has been commencing legal action against persons in the United States to recover unpaid student debt (see What do I do with my Swedish Student Debt? I live in USA and they just threatened to take me to court here if I don't repay it? , https://www.avvo.com/legal-answers/what-do-i-do-with-my-swedish-student-debt-i-live-i-5189933.html [last accessed July 10, 2023]).
Defendant contended that she was not made aware of the Swedish default judgment entered on July 22, 2022 in Örebro, Sweden (see NYSCEF Doc No. 10, answer at 1). Defendant argued that she was paying back the loans until 2007 and had not heard anything further about it until November 8, 2022, when she received the papers that the Kingdom of Sweden had taken legal action against her in New York (see NYSCEF Doc No. 41-43, transcript at 9-10). However, documentation of these payments was no longer in Defendant's possession, as she states she was impacted by Hurricane Sandy and the paperwork was destroyed due to flooding in her house (see NYSCEF Doc No. 14, adjournment request at 3). Additionally, Defendant argued that there were discrepancies with the English translation of the Swedish default judgment submitted by Plaintiff (see NYSCEF Doc No. 10, answer, at 2); that she was unemployed, experiencing financial difficulties, and had medical problems (see id. at 2; NYSCEF Doc No. 14, adjournment request at 2); that the judgment was not properly "admissible in New York" (NYSCEF Doc No. 14, adjournment request at 2); that she was not afforded due process and the process was unfair in nature (see NYSCEF Doc No. 25, "affidavit" ¶5); that "I have no proof that the amount I am sued for is indeed outstanding and owing" (id. ¶ 7); that "I have not lived in Sweden since 1997, my knowledge of Swedish is very poor now" and "I was not exactly aware of what I was signing" on April 7, 2022 (purportedly acknowledgment of notice of service at New York address, actual date being July 4, 2022) (id. ¶ 10); and that she was not served with any documents showing her payment history (id. ¶ 11).
The signed purported acknowledgment of service was dated "04/07/2022" in the American dating style, but presumably it was July 21, 2022. European countries place the date of the month before the month. The signing of the purported acknowledgment of service took place in New York, as evidenced by the fact that it was sent to Defendant at her Brooklyn address.
The parties appeared before this Court on May 18, 2023. Defendant had sought an adjournment (see NYSCEF Doc Nos. 33-35), but this Court heard oral argument from both parties. Defendant argued that the decision whether to grant an adjournment was ordinarily committed to the sound discretion of the trial court, and when the protection of fundamental rights has been involved in requests for adjournments, that discretionary power has been more narrowly construed, citing ( Matter of Anthony M., 63 N.Y.2d 270, 283-284, 481 N.Y.S.2d 675, 471 N.E.2d 447 [1984] ); ( People v. Singleton, 41 N.Y.2d 402, 405, 393 N.Y.S.2d 353, 361 N.E.2d 1003 [1977] ); ( People v. Foy, 32 N.Y.2d 473, 476-478, 346 N.Y.S.2d 245, 299 N.E.2d 664 [1973] ); and ( People v. Matz, 23 N.Y.2d 196, 295 N.Y.S.2d 918, 243 N.E.2d 140 [1968] ) (see NYSCEF Doc No. 35 adjournment request at 2). This Court stated that decision (including whether to grant an adjournment) was reserved (see NYSCEF Doc Nos. 41-43, transcript at 13-14).
Discussion
Plaintiff argued that pursuant to CPLR 5304 (c), the burden of establishing defenses to domestication of the foreign judgment was on Defendant (see NYSCEF Doc No. 41-43, transcript at 4). Pursuant to CPLR § 5303 (a), "Except as is otherwise provided by section fifty-three hundred four of this article or any controlling law of the United States, a court of this state shall recognize a foreign judgment to which this article applies as conclusive between the parties to the extent that it grants or denies recovery a sum of money." Plaintiff further argued that Defendant signed an admission of service of process of the Swedish court proceeding which led to the judgment (see NYSCEF Doc Nos. 5, 12, 30), and therefore the foreign court had in personam jurisdiction (see reply affirmation ¶ 7).
As noted above, Defendant has claimed that the entire process was unfair to her, as she last dealt with the Swedish student loan in 2007, she was in the United States when she received the document she signed, her Swedish was now very poor, she was not aware of a default judgment until the New York lawsuit was commenced, and more than 14 years had elapsed between her 2007 payment and the initiation of legal proceedings (see generally NYSCEF Doc Nos. 10, 14, 20, 25, 33).
Lack of Standing by Kingdom of Sweden
Although Defendant did not raise an issue of standing, it is a pertinent legal issue that must be addressed because Defendant has vigorously opposed domesticating the Swedish judgment and has offered numerous defenses (cf. Consumer Solutions, LLC v. Charles , 137 A.D.3d 952, 27 N.Y.S.3d 216 [2d Dept. 2016] ). Defendant asserted in her answer, "I was not aware of default judgment made on July 22, 2022, presented in Orebro, Sweden in the amount of SEK 282,270 to Swedish Board of Student Finance," and "There's [a] few discrepancies in Swedish translations (including dates) made by Lennart Christofferson — the translator" (NYSCEF Doc No. 10 at 2-4). A pro se party will be accorded some latitude in articulating her claims (see Mirzoeff v. Nagar , 52 A.D.3d 789, 861 N.Y.S.2d 740 [2d Dept. 2008] ). By referencing a judgment issued to The Swedish Board of Student Finance and questioning the translations provided by Plaintiff, this impliedly raised an issue whether Plaintiff has standing here.
In order to possess standing, one must have suffered an injury in fact (see Society of the Plastics Indus. Inc. v. County of Suffolk , 77 N.Y.2d 761, 772, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991] ); only an aggrieved party has standing to commence a lawsuit (see Matter of Gernatt Asphalt Prods., Inc. v. Town of Sardinia , 87 N.Y.2d 668, 687, 642 N.Y.S.2d 164, 664 N.E.2d 1226 [1996] ). Aside from Plaintiff's counsel's assertion that The Swedish Board of Student Finance "is a department that renders student loans on behalf of the government" (NYSCEF Doc. Nos. 41-43, transcript at 4), Plaintiff Kingdom of Sweden has not demonstrated its legal relationship to The Swedish Board of Student Finance.
The Kingdom of Sweden does not appear on any of the documents until this instant action, as the original Swedish default judgment was issued by the Örebro, Sweden court to The Swedish Board of Student Finance against Defendant, at least according to Plaintiff's proffered translation. The judgment was not issued to the Kingdom of Sweden.
This Court finds that the Kingdom of Sweden lacks standing to bring the present action as it is not the judgment creditor (see Sharrow v. Sheridan , 91 A.D.3d 940, 941, 937 N.Y.S.2d 320 [2d Dept. 2012] [in dismissing plaintiff's action on the basis of lack of standing, Second Department explained that "[t]he rules governing standing help courts separate the tangible from the abstract or speculative injury"]). CPLR 5303, in permitting domestication of foreign judgments, provides, "Except as is otherwise provided in section fifty-three hundred four of this article or any controlling law of the United States, a court of this state shall recognize a foreign country judgment to which this article applies as conclusive between the parties to the extent that it grants or denies recovery of a sum of money" [emphasis added]. The Kingdom of Sweden was not a party to the litigation in the Örebro court, as per Plaintiff's proffered translation it was The Swedish Board of Student Finance who brought suit there against Defendant herein.
In ( National Credit Union Admin. Bd. v. HSBC Bank US, Natl. Assn., 331 F.R.D. 63 [S.D.N.Y. 2019] ), the court ruled that a plaintiff may substitute a real party in interest for purposes of meeting legal requirements applicable to it in performance of its duties and if not done in bad faith. There, however, a provision in a contract was in effect that allowed them to appoint a separate trustee. Here, there is no evidence of such provision in effect enabling the Kingdom of Sweden to sue on behalf of The Swedish Board of Student Finance, nor did the Kingdom of Sweden establish the need to be substituted in place of said Board as the real party in interest for the purposes of meeting legal requirements. It is clear that the real party in interest here is The Swedish Board of Student Finance, which obtained the judgment — not the Kingdom of Sweden itself.
"The Court of Appeals has also long recognized the real party in interest doctrine. (See Spencer v. Standard Chem. & Metals Corp. [237 N.Y. 479, 143 N.E. 651 (1924)] )" "Any state court entering a judgment — regardless of any defense or objection raised or waived by a defendant — must require proof that an agent has acted with actual authority and consent of the real party in interest" (Frances M. Caesar, Outside Counsel, A ‘Holder’ Is Not Always The Real Party in Interest , NYLJ, June 9, 2023 at 8, col 6). Additionally, according to CPLR § 1004, if it is not the plaintiff, the real party in interest has to be joined to the action, with limited exceptions. Plaintiff Kingdom of Sweden does not fall within the ambit of the stated exceptions.
This article provides an excellent discussion of the real party in interest doctrine, especially in the context of financial instruments.
"Except where otherwise prescribed by order of the court, an executor, administrator, guardian or the property of an infant, committee of the property of a judicially declared incompetent, conservator of the property of a conservative, trustee of an express trust, insured person who has executed to his insurer either a loan or subrogation receipt, trust agreement, or other similar agreement, or person with him or in whose name a contact has been made for the benefit of another, may sue or be sued without joining with him the person for or against whose interest the action is brought."
Plaintiff's counsel claimed during oral argument:
The Government of Sweden is the Plaintiff. The student loan division, it's like the Department of
Education of the United States Government. It's a department, but it's the United States Government. It's the Government of Sweden and this is a department that renders student loans on behalf of the government.
(NYSCEF Doc Nos. 41-43 at 4.) However, if here we were to follow this reasoning, then it would follow that the United States would sue on behalf of its respective agencies, rather than the agencies themselves directly. In the absence of establishing the legal connection between it and The Swedish Board of Student Finance, Plaintiff Kingdom of Sweden has failed to establish that it is the real party in interest, i.e., that it possesses standing.
There is also a substantial question of whether the Kingdom of Sweden may maintain this action in the position of parens patriae to The Swedish Board of Student Finance, an issue which has broader implications (e.g., Estados Unidos Mexicanos v. DeCoster , 59 F.Supp.2d 120 [D.Me. 1999] ). Suffice it to say that since the purported subject default judgment was issued to The Swedish Board of Student Finance, this Court need not determine the broader issue.
Non-Compliant Translation of Swedish Documents
In order to seek enforcement of a foreign money judgment in New York, "the judgment creditor does not seek any new relief against the judgment debtor, but instead merely asks the court to perform its ministerial function of recognizing the foreign country money judgment and converting it into a New York judgment" ( John Galliano, S.A. v. Stallion, Inc. , 15 N.Y.3d 75, 904 N.Y.S.2d 683, 930 N.E.2d 756 [2010], citing CIBC Mellon Trust Co. v. Mora Hotel Corp. N.V. , 100 N.Y.2d 215, 222, 762 N.Y.S.2d 5, 792 N.E.2d 155 [2003] ). If exercise of jurisdiction by the foreign court comports with New York's concept of personal jurisdiction, the foreign jurisdiction shares our notions of procedure and due process of law, and enforcement of the foreign judgment is not otherwise repugnant to our notion of fairness, the foreign judgment should be enforced in New York under well-settled comity principles without microscopic analysis of the underlying proceeding (see Sung Hwan Co., Ltd. v. Rite Aid Corp., 7 N.Y.3d 78, 83, 817 N.Y.S.2d 600, 850 N.E.2d 647 [2006] ).
Accordingly, CPLR 5304 (grounds for non-recognition) provides as follows:
(a) A court of this state may not recognize a foreign country judgment if:
1. the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law;
2. the foreign court did not have personal jurisdiction over the defendant; or
3. the foreign court did not have jurisdiction over the subject matter.
(b) A court of this state need not recognize a foreign country judgment if:
1. the defendant in the proceeding in the foreign court did not receive notice of the proceeding in sufficient time to enable the defendant to defend;
2. the judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case;
3. the judgment or the cause of action on which the judgment is based is repugnant to the public policy of this state or of the United States;
4. the judgment conflicts with another final and conclusive judgment;
5. the proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be determined otherwise than by a proceeding in that court;
6. in the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action;
7. the judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering courts with respect to the judgment;
8. the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law; or
9. the cause of action resulted in a defamation judgment obtained in a jurisdiction outside the United States, unless the court before which the matter is brought sitting in this state first determines that the defamation law applied in the foreign court's adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York constitutions.
(c) A party resisting recognition of a foreign country judgment has the burden of establishing that a ground for non-recognition stated in subdivision (a) or (b) of this section exists; provided that the party seeking recognition shall bear the burden of establishing the adequate protections for
freedom of speech and press required as a condition to recognition under paragraph nine of subdivision (b) of this section if the party resisting recognition establishes that the judgment is for defamation.
In order to determine whether the proceedings in Sweden comported with New York's notions of due process — Defendant arguing that they did not —, there was personal jurisdiction over Defendant, there was timely notice to Defendant, or the judgment was repugnant to New York's public policy, one would need to be assured of the accuracy of the Swedish documents submitted to this Court on the motion to domesticate the Örebro court's judgment. However, the translations — challenged by Defendant — did not comport with the requirements of the CPLR.
In NYSCEF Doc Nos. 5, 12, and 30 (page 2), Plaintiff provided multiple copies of the alleged notice of the Swedish proceedings. This Court not being conversant in the Swedish language, it is uncertain exactly what was mailed from Sweden to Defendant at her New York address (the New York address is on the document). The document is contained on one page. It appears to be some sort of notice, taking up the top half of the page. At the bottom are spaces to fill in information. Handwritten is the date "04/07/2022," which is the European way of setting forth July 4, 2022, Defendant's signature, telephone number, email address, and some other designation ("T 3370-22").
This Court assumes that Defendant intended to designate the date as July 4, 2022 because there appears to be a date stamp at the top of "2022-07-21," which perhaps is the date the document was prepared or mailed.
Plaintiff included a purported translation into English (NYSCEF Doc Nos. 5, 12, 30 at 4). The purported translation is as follows:
Confirm the service
________________________________
The Court needs to know if you have received the documents in this letter.
Confirm as soon as possible
You can choose to confirm receipt in one of the following ways.
• Use the e-service for confirmation of service by scanning the QR-code below.
• Fill out the form below and return it. Use the response envelope or scan it an email to [email protected].
• Call the Court at 019-16 62 00.
• Send the same information as in the form below to [email protected]
If the Court is not informed that you have received the documents, the Court might need to serve you by using a process server for example.
________________________________
I have received the following document:
Complaint, Document Id. 1015613 in case/matter number T 3370-22
July 4, 2022
Date
[Signed] [number]
Signature Telephone number, mobile
Milena Koste Pashkovski
Printed name Telephone number, other
[email address]
Email address
The Court may choose to send documents in the case via email. It is therefore important that you monitor the email address.
T 3370-22
New postal address
Plaintiff's purported certification of the translation (NYSCEF Doc Nos. 5, 12, 30 at 3) was as follows:
I, the undersigned, hereby certify that I am familiar with the English and Swedish languages. I declare that I have translated from the Swedish language to the English language the attached document entitled "Notice of Service". I declare to the best of my abilities and belief that this is a true and accurate translation of the Swedish language text of that document.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on August 31, 2022, at Los Angeles, California.
/s/
Lennart Christofferson
At the top of this purported translation appears Mr. Christofferson's name, an address, and a telephone number.
Plaintiff submitted the purported Örebro court judgment as NYSCEF Doc. Nos. 3 and 31. The purported translation and translator's certification were submitted as NYSCEF Doc Nos. 4 and 32. Pertinent parts of the translation are as follows:
DEFAULT JUDGMENT
July 22, 2022
Presented in Örebro
Moving party
Centrala Studiestödsnämnden [The Swedish Board of Student Finance], 202100-1819
851 82 Sundsvall
Representative: Sabina Bäckman
Respondent
MILENA Daniella Koste Pashkovski 19720718-[blacked out]
Alia Gerasimora
35 Seacoast Terrace #16G
Brooklyn, Ny 11235
_________
JUDGMENT
1. Milena Pashkovski shall pay the total amount of SEK 282,260 to Centrala Studiestödsnämnden [The Swedish Board of Student Finance] allocated as follows.
a. A principal amount of SEK 250,976, accumulated interest as of June 2, 2022, in the amount of SEK 254, and interest on the principal amount according to chapter 8, paragraphs 1 and 2 of the Study Aid Act (1973:349) from June 3, 2022, until payment is made (the interest [rate] is 0.0% during 2022).
b. Administrative fees in the amount of SEK 31,030.
2. Mila Pashkovski shall reimburse Centrala Studiestödsnämnden [The Swedish Board of Student Finance] for litigation expenses in the amount of SEK 2,800.
_________
PETITION, ETC.
Centrala Studiestödsnämnden [The Swedish Board of Student Finance] has petitioned as set forth in this judgment. Basis and circumstances appear in the complaint, see enclosure 1.
Milena Pashkovski has been instructed to respond in writing. She has in a petition to the District Court stated that she does not have money since she divorced her ex-husband.
GROUNDS FOR THE DECISION
Milena Pashkovski has not provided any reason that can be of importance when examining the case. There are therefore conditions to approve Centrala Studiestödsnämnden [The Swedish Board of Student Finance]'s claim by default judgment.
HOW TO APPEAL / REQUEST FOR RE-TRIAL and, see enclosure 2
Applies only to Centrala Studiestödsnämnden [The Swedish Board of Student Finance]. Appeal can be made to Göta Court of Appeal and shall have been reviewed by the District Court no later than August 12, 2022.
Applies only to Milena Pashkovski. Request for re-trial shall have been received by the District Court no later than August 22, 2022.
Jenny Viklund
(NYSCEF Doc Nos. 4, 32 at 3-4).
Plaintiff's purported certification of the translation (NYSCEF Doc Nos. 4, 32 at 2) was as follows:
I, the undersigned, hereby certify that I am familiar with the English and Swedish languages. I declare that I have translated from the Swedish language to the English language the attached document entitled "Default Judgment". I declare to the best of my abilities and belief that this is a true and accurate translation of the Swedish language text of that document.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on August 31, 2022, at Los Angeles, California.
/s/
Lennart Christofferson
At the top of this purported translation appears Mr. Christofferson's name, an address, and a telephone number. According to CPLR § 2101(b), "Each paper served or filed shall be in the English language which, where practicable, shall be of ordinary usage. Where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate." Here, Plaintiff offered purported translations of a notice and a judgment. Clearly, an affidavit of the translator is required. What Lennart Christofferson provided, however, was not an affidavit, but a self-sworn certification. Moreover, Christofferson did not set forth his qualifications — just that he is "familiar with the English and Swedish languages" (NYSCEF Doc Nos. 4, 5, 12, 30, 32). Without presenting himself to a notary public or another official authorized by law to take oaths, Christofferson's certifications do not constitute affidavits. Christofferson translated these documents from California with no evidence that the translations are accurate. Therefore, there is a defect in content, not form (cf. CPLR 2101 [f] ). An affidavit not accompanied by a translator's affidavit setting forth the translator's qualifications is facially defective and not admissible on a motion for summary judgment (see Raza v. Gunik , 129 A.D.3d 700, 12 N.Y.S.3d 116 (2d Dept. 2015) ; Martinez v. 123-16 Liberty Ave. Realty Corp. , 47 A.D.3d 901, 850 N.Y.S.2d 201 [2d Dept. 2008] ). A translation submitted to the court must be accompanied by a translator's affidavit executed in accordance with CPLR 2101 (b) (see Gonzalez v. Abreu , 162 A.D.3d 748, 79 N.Y.S.3d 245 [2d Dept. 2018] ).
"Summary judgment is a drastic remedy made in lieu of a trial which resolves the case as a matter of law (see Andre v. Pomeroy , 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974] ). Parties opposing a motion for summary judgment are required to proffer evidence that is in admissible form, with rare exceptions not applicable here. A witness at trial would not be permitted to testify in a foreign language, or to proffer documents in a foreign language, without the benefit of a sworn English language translation (see Quispe v. Lemle & Wolff, Inc. , 266 A.D.2d 95, 96, 698 N.Y.S.2d 652 [1999] ; cf. People v. Watkins , 12 A.D.3d 165, 166, 786 N.Y.S.2d 133 [2004] ), and there is no valid reason why a more relaxed evidentiary standard should govern summary judgment applications." ( Reyes v. Arco Wentworth Mgt. Corp. , 83 A.D.3d 47, 54, 919 N.Y.S.2d 44 [2d Dept. 2011].) Not only must the translator provide an affidavit, but his qualifications must be set forth (see Salazar v. Kellari Parea, LLC , 189 A.D.3d 1490, 138 N.Y.S.3d 559 [2d Dept. 2020] ; Rosenberg v. Piller , 116 A.D.3d 1023, 985 N.Y.S.2d 250 [2d Dept. 2014] ). Being "proficient" in both English and the foreign language is insufficient ( Matter of S.A.B.G. , 47 Misc.3d 812, 5 N.Y.S.3d 813 [Fam. Ct., Nassau County 2015] [translator failed to state professional qualifications which rendered her suitable to translate the documents]); Christofferson's being familiar with Swedish likewise is insufficient.
The Court of Appeals has ruled that grounds for nonrecognition of a foreign judgment include a lack of personal jurisdiction over the defendant in a foreign court and a defendant's failure to receive notice of the proceedings in sufficient time to enable him to defend (see John Galliano, S.A. , 15 N.Y.3d 75, 904 N.Y.S.2d 683, 930 N.E.2d 756 [2010] [foreign court judgment still entitled to recognition even though initiatory papers for the foreign action were served on the judgment debtor in New York without English translation]; see also CPLR § 5304 [a] [2] [recognition shall be withheld if foreign court lacked personal jurisdiction]; CPLR § 5404 [b] [1] [foreign judgment need not be recognized where defendant did not receive notice in time to defend]).
From a procedural standpoint, the circumstances in John Galliano, S.A. v. Stallion, Inc. parallel those here with one very distinct difference — plaintiff and defendant there were parties in a contract that included a forum selection clause stipulating to French jurisdiction. There, the defendant had been served process in the French proceeding multiples times in the United States. Defendant there failed to appear and a default judgment was entered against him in France. The Court of Appeals there stated, "[I]f recognition of a foreign money judgment were sought in New York and the defendant had received no meaningful notice of the foreign proceeding, the lack of notice would serve as a legitimate basis for not enforcing the judgment in [New York], as the entry of such judgment would not comport with our conception of personal jurisdiction or our notion of fairness" ( 15 N.Y.3d 75 at 80-81, 904 N.Y.S.2d 683, 930 N.E.2d 756 ). Therefore, if Defendant here was not in fact given proper notice by the Kingdom of Sweden of her pending trial, it cannot be enforced here.
It should also be noted that in John Galliano, S.A. v. Stallion, Inc. , it was not "The Republic of France on behalf of John Galliano, S.A. v. Stallion, Inc. " but simply the judgment creditor versus the judgment debtor; the real party in interest was indeed John Galliano, S.A., where here the real party in interest was The Swedish Student Board of Student Finance, not Plaintiff Kingdom of Sweden.
Defendant here argued that she was not given proper time to defend herself, as the Swedish foreign judgment was issued in Sweden without her knowledge. Additionally, she argued that she was not given proper service. Plaintiff argued that by signing the notice form described above, Defendant admitted service of process.
Although Defendant did not contest the fact that she signed the aforementioned document, she argued that she was unaware of exactly what she was signing and returning to the court. Defendant argued that she was presented with a document in Swedish, a language in which she is not conversant, and asked to sign it. Defendant stated that she had not been back to Sweden since 1998, as she was only in the country from September 1995 through June 1998 while attending the University of Örebro, Sweden (see NYSCEF Doc No. 14, adjournment request at 1-2). Without a properly attested translation of what Defendant signed (and a properly attested translation of the judgment), this Court finds that the Örebro court lacked personal jurisdiction over Defendant, Defendant did not receive notice in sufficient time to enable her to defend, the judgment was repugnant to New York State policy, and the judgment did not comport with New York's notions of due process (see CPLR 5304 [a] [3], [b] [1], [3], [8] ). Statute of Limitations for Consumer Debt
Moreover, while service by registered mail to an overseas defendant was sustained in Fernandez v. Univan Leasing , 15 A.D.3d 343, 790 N.Y.S.2d 155 [2d Dept. 2005] [construing Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters], nothing here evidences that the mailing was by registered mail, as opposed to ordinary mail.
Defendant argued that her debt constituted consumer debt, and therefore a six-year statute of limitations applied. She invoked New York law. CPLR 105 (f) defines a consumer credit transaction as a transaction wherein credit is extended to an individual and the money, property, or service which is subject of the transaction is primarily for personal, family or household purposes." A six-year statute of limitations applied (see CPLR 213 ), but CPLR 214-i, providing for a three-year limitations period, was added effective April 7, 2022. It is doubtful whether this applies to a student loan (see 22 NYCRR §202.27-a ). It is also doubtful that New York's statute of limitations applied to Defendant's situation. It has been held that Sweden's statute of limitations applies (e.g. , Kingdom of Sweden v. Melius , 2015 WL 7573622 [C.D.Cal., Nov. 25, 2015, No. CV 14-04492 RSWL] ; Kingdom of Sweden v. Nowacki , 2015 WL 5165293 [S.D.Cal., Aug. 28, 2015, No. 14-CV-1259-H-NLS] ).
"[A] consumer credit transaction means a revolving or open-ended credit transaction, wherein credit is extended by a financial institution, which is in the business of extending credit, to an individual primary for personal, family or household purposes, the terms of which include periodic payment provisions, late charges an interest accrual. A consumer transaction does not include debt incurred in connection with, among others, medical services, student loans, auto loans or retail installment contracts."
Apparently, Sweden had a ten-year statute of limitations for student debt which was extended in 2011 to 25 years (e.g., In re Nystrand , 2022 WL 3969822 [N.D.Fla., Bnkr., Aug. 29, 2022, No. 21-20006-KKS] ). "Under the Swedish Limitations Act, a student loan collection action that expired before July 1, 2011 became ‘statute-barred ten years after it was made, unless the limitations is interrupted before that.’ [ ] SFS 1981:13 § 2. The statute of limitations becomes disrupted in the event that ‘the borrower undertakes payment, pays interest or principal or acknowledges the debt in another manner to the creditor’ or ‘receives a written demand or a written reminder from the creditor regarding the claim.’ Id. § 5. ‘If the statute of limitations has been disrupted through acknowledgment, demand, or reminder, a new statute of limitations takes effect on the day of the disruption according to § 2.’ Id. § 6. In 2011, the Swedish Study Support Act extended the statute of limitations for student loan collection actions that were not time-barred as of July 1, 2011, to twenty-five years.[ ] SFS 1999:1395 § 12." ( Kingdom of Sweden v. Nowacki , 2015 WL 5165293 *8.)
Inasmuch as there is insufficient evidence before this Court on the issue of whether Sweden's extension of the relevant statute of limitations applies to the asserted debt it is claimed that Defendant owes, this Court makes no finding concerning Defendant's defense that the Swedish statute of limitations expired.
Defendant's Adjournment Request
In light of this Court's determinations on issues of standing and the procedural predicates for domesticating a foreign judgment, Defendant's adjournment request is superfluous.
Conclusion
Accordingly, it is hereby ORDERED as follows:
(1) Defendant's application for an adjournment is DENIED.
(2) Plaintiff's motion for summary judgment (Motion #1) is DENIED.
(3) Defendant's motions to dismiss and for summary judgment (Motions #2 and #3 respectively) are GRANTED.
(4) The within action is dismissed and the Clerk shall issue judgment accordingly.