Saturday, June 03, 2006

Using a Judgment Debtor Exam in California

Question: I have an unpaid judgment and I've heard about a procedure called a judgment debtor's exam. Is that an effective way to collect a judgment?

Answer: A judgment debtor's examination is one of many methods to help a judgment creditor in California to collect a judgment. If the judgment creditor cannot locate the assets of a business or an individual debtor, then the law provides for a procedure known as a judgment debtor examination. In this procedure, the court issues an order that requires the debtor to come back to court and answer questions under oath about the nature and location of the debtor's assets. With the information obtained, the judgment creditor can then obtain a writ of execution and direct the sheriff to seize the assets.

The judgment creditor must first apply to the court for a hearing date using the proper form. After obtaining a hearing date, the creditor must arrange for the debtor to be personally served with the Order to Appear by a sheriff or registered process server. Click here to see a list of sample questions to ask the judgment debtor. Rather than undergo the examination, debtors will often settle the judgment to avoid the hassle of coming to court. In most cases, you will obtain information about the debtor's ability to pay the judgment.

Sometimes the debtor will refuse to show up at the hearing. If this happens, ask the judge to issue a bench warrant or a warrant of attachment. For a fee, the local sheriff will contact the debtor and serve the warrant. In most cases, the court will schedule a second hearing and the sheriff will arrest the debtor for a second failure to appear.

The key to collecting any judgment is getting good information about the debtor's assets and conducting a debtor's examination can be very useful in obtaining this data. With persistence an tenacity, a good collection attorney can collect on most judgments using the debtor exanination procedure and other methods legally available to collect judgments.

The information provided in this article is general information only and is not intended as legal advice. DO NOT use this information as a substitute for obtaining qualified legal advice or other professional help.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

9 comments:

Anonymous said...

Can you use judgment debtor exams if you are in federal court in california under diversity jurisdiction (e.g. Erie)?

Carl Starrett said...

Rule 69 of the Federal Rules of Civil Procedure specifies that judgment creditors in federal court are entitled to discovery from the debtor to the extent allowed by state law. Therefore, debtor exams are available to enforce federal judgments regarding of the basis for jurisdiction (i.e. diversity, federal question, etc.).

In my recent experience, it appears that federal court clerks are not very experienced when dealing with enforcement of civil judgments. You may need to scour the court's website for the local form to apply for a order for examination. If you are persistent, you should be able to get your hearing.

Anonymous said...

Carl-- what is the procedure for the debtor's exam. Is it done in a courtroom?

Lori said...

Can a Debtor's exam be filed in a small claims court or must it be filed with the Superior Court?

Anonymous said...

Can an order of examination be filed in Superior Court using a federal court judgment?

Anonymous said...

In the creditor examination [default judgement for credit card debt] will/can the court request tax returns?

Tonyatology said...

If you are awarded attorneys fees on dismissal of a case can you serve notice for a debtor's exam BEFORE the hearing to determine the amonut of attorneys fees and before any entry of money judgement?

Anonymous said...

How often and how many times can I request a debtors exam

Anonymous said...

Do you have to be an attorney to conduct the debtor's exam? Can a paralegal or legal assistant appear on behalf of the attorney?