Debtors Examinations and Depositions
When other judgment enforcement remedies fail or assets cannot be located to enforce upon, creditors can file a debtors examination. A debtors examination sometimes referred to as a deposition in aid of execution is a hearing where the debtor is required to appear in court and testify under oath as to their financial condition. Prior to the hearing the attorney for the plaintiff will provide a list of required items that the debtor is required to bring to the hearing. If the debtor fails to bring these items or intentionally omits items, the court can hold them in contempt.
The process of filing a debtors exam can be complex. In order for the debtors exam to be conducted the plaintiff must serve the defendant with a summons and the order for the debtors examination. If the debtor is not served the hearing will not transpire. Often times even after being served the debtor will still fail to appear. If a debtor does not appear the creditor must file a motion to compel the debtor to appear at another scheduled hearing. As in the first circumstance this must also be served against the debtor. If the motion to compel is granted the debtor must appear. If they fail to appear or do not bring the required documents the court the creditor can file a motion for contempt. If granted the court will hold the debtor in contempt which will create a writ of bodily attachment. This means that the debtor can be arrested as a result of the contempt order.
The rules regarding a contempt order vary state to state. Some judges are opposed to issuing these orders while some do so without even scheduling a hearing on the motion. The important thing to remember is that even if the debtor is arrested, they are not being arrested because of the money owed on the judgment, they are being detained as a result of failing to appear at their required hearing or honoring the discovery requests.
When a debtors exam is conducted the attorney for the plaintiff will be able to ask the debtor questions. As judgment debtors will typically be unwilling to volunteer information, attorneys skilled in conducting these hearings will ask less direct questions. Instead of asking “where do you bank”, they will ask “what card or account did you pay your last utility bill from”. Having an attorney that specializes in handling debtors examinations is necessary for any actionable information to be obtained.
