After a trial, the judge awarded my client attorney fees (to my office) and sanctions (to my client) against the other party for their bad faith litigation conduct. He was ordered to pay but has failed to do so—now what?
An examination of a judgment debtor (debtor) exam is authorized under Code of Civil Procedure (CCP) section 708.110. This statute allows my client to apply to the court for an order requiring the judgment debtor to appear before the court, at a time and place specified in the order, to furnish information to aid in enforcement of the money judgment.
A judgment debtor exam or order to appear for examination (ORAP) is very similar to a post-judgment deposition. The judgment creditor (creditor: my client and myself) will be allowed to subpoena the judgment debtor (the other party) requiring him to bring documents to the court for our review and ask him questions. The purpose of the hearing is to require the debtor to give information regarding their assets/property/income and general financial status. The creditor (us) are allowed, like in a deposition, the widest scope of inquiry concerning all property and business affairs of the debtor and even third-parties.
In order to have an effective examination, the creditor should request from the debtor to produce in court all documents detail their assets and liabilities. Any person that is a party may be served with a notice to appear and produce documents and other tangible evidence in his or her possession pursuant to CCP section 1987 (b) and (c). This notice is also known as a subpoena in lieu of subpoena duces tecum.
The notice to appear and produce documents must be personally served at least 20 days before the examination date (25 days if served by mail). The notice to appear and produce documents should be served with the examination order or even sooner.
What most creditors fail to forget but is critical is that the witness must be provided with a check for the witness fee of $35.00 per day plus mileage fee of $.20 mile each way to and from the courthouse at the time that the notice to appear and produce documents is served. If you do not do so the witness cannot be compelled to appear and produce documents. If you do and the debtor fails to appear, you can request a bench warrant to be issued.
The results of a judgment debtor examination depend more on the examiner than the judgment debtor. The debtor will not want to be present in court and will be evasive and blatantly lie in some instances—note the judge/clerk will put the debtor under oath but as we all know, proving lies is another article in itself.
Sometimes judgment debtor exams are not for asking where all the assets are but instead establishing control and being persistent. Experienced enforcers will want the judge to continue the examination hearing to a future date to allow the debtors to find the documents you requested. Success in performing such examinations means being prepared and willing to continue the examination so long as it takes in order to get paid. But it is also important to be reasonable and focused on asset finding, so the judge does not think you are only harassing the debtor.
It takes patience and skill to conduct judgment debtor examinations—just because you get a judgment does not necessarily mean “you will get paid.” So, if you are not paid, being persistent and knowing what to do next is crucial.
If you are in this situation such as unpaid child support, spousal support, or attorney’s fees, call my office at 310-601-7144 or email me directly at firstname.lastname@example.org.
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