Post Judgment Remedies
A Court Order must be Served on the Judgment Debtor to Compel Appearance at a Judgment Debtor Examination, to Submit to Questioning Under Oath about Assets and Financial Situation
To obtain more information about the debtor’s assets, the debtor can be required to submit to questioning under oath about his financial situation.
To compel a debtor to appear for examination, a court order is obtained from the court, which is then served upon the debtor. When a copy of the signed order is served, the debtor will be required to personally come to court, at the time and place given in the order, for the purpose of answering questions about his or her property and sources of income.
The order of examination must be served on the debtor before the examination date. This is done by handing a true copy of the order to the debtor. The person serving the copy must be prepared to show the debtor the original signed order, if the debtor requests. As soon as the order is served, the original form (signed by the judge or other court officer), with a signed proof of service attached to it, must be filed with the clerk of the court. Some courts require that the form be filed at least five business days before the date set for the examination.
If the debtor fails to appear for examination, a bench warrant may be issued for his arrest and the debtor may be arrested if he or she does not appear. However, if the debtor does not live or have a place of business in the county where the court hearing was held, or within 150 miles of the court, the examination will have to be conducted in the county where the debtor lives or has a place of business.
Production of Documents
The creditor may order the debtor to produce certain documents at the examination, by the issuance of a civil subpoena duces tecum (order to bring documents to court) at the same time the clerk issues the order to appear for examination.
The subpoena must be prepared, signed and submitted, with a declaration, in which the creditor describes the exact documents he requires the debtor to produce at the examination (for example, the debtor’s drivers license), and why the documents are required. Once issued the levying officer (marshal, sheriff, or constable) or registered process server must personally serve the subpoena and declaration on the debtor, who is then required to produce the documents at the examination.
Conducting the Examination
At the examination, the debtor will be questioned about his/her property and sources of income. If the debtor refuses to answer a question, the creditor may seek an order from the judge, compelling the debtor to answer the question. Where the court has ordered the debtor to bring documents to court, these documents may be reviewed before the creditor poses any questions to the debtor. The creditor may check to see that each of the requested documents has been provided. The purpose of the examination is to provide an opportunity to obtain information from the debtor: the nature, description, and location of the debtor’s assets, and the sources of his/her past, present, and future income.
Requesting a Turnover Order
The debtor may have in his/her possession cash in a wallet or purse, or funds in a checking account. If so, the creditor can request the court, then and there, to order the debtor to turn it over. An order of this kind may be more effective than any other enforcement procedure. If the debtor refuses to obey the order, the court can hold him/her in contempt of court.
The creditor may have incurred some out-of-pocket expenses to serve the debtor with a copy of the order for examination or subpoena. If so, these costs can be added to the judgment by completing, filing, and serving the debtor with a memorandum of costs form (in some courts it is called a cost bill after judgment).
If the Debtor Fails to Appear
The debtor may have been properly served, but may not have appeared. If this happens, the court can issue a warrant for the debtor’s arrest for contempt of court for failing to comply with the court’s order to appear. Some courts prefer instead to order the debtor to appear in court to explain the disobedience of the first order, and some courts send a letter to the debtor warning of the penalties and scheduling another hearing date for the examination.