If you’re wondering what a judgment debtor examination is, then I’m guessing either you are trying to chase down money that is owed to you, or perhaps you owe someone money and you already have a judgment against you.
For your sake, I hope it’s the former. (If you are the debtor, you might want to check out What to Do If You Get Sued: Your 8 Step Plan.)
In either case, a judgment debtor examination is basically a tool which allows a creditor to ask a debtor questions to help them collect on their judgment. At a judgment debtor exam, the judgment creditor, or their attorney, is allowed to ask the judgment debtor questions about their finances under the court’s supervision while the debtor is under oath.
In California, the technical name for a judgment debtor examination is an “Order of Examination” or an “OEX” for short. It’s a tool that is usually only used after what is often a long and bitter fight over a debt.
It’s not easy to collect money from a judgment debtor. It’s much easier to collect money if the debtor responds to a demand letter. It’s hard even to get to the point where the judgment creditor finally gets to ask the debtor questions about their finances, which can take anywhere between six months to a year or more.
Once you do get to the point of conducting a judgment debtor examination, the judgment creditor gets near carte blanche to ask all sorts of questions about the debtor’s financial situation – including their bank accounts, account numbers, how much cash is in their wallet, even their social security number.
As you can imagine, simply having a judgment debtor exam can motivate the debtor to settle — if they have any money.
To do a judgment debtor examination, take the following steps:
1. Get a Judgment.
First, the creditor needs to have a judgment against the person who owes them money. These are often obtained by a default judgment, which is where the person being sued didn’t bother responding to the lawsuit.
Why would someone not even bother responding to a lawsuit? Frequently, people who owe a lot of money, especially to many different creditors, don’t respond to lawsuits against them because they are either too overwhelmed or they can’t afford a lawyer.
2. Ask Yourself If The Judgment Debtor Has Any Money.
The purpose of the judgment debtor examination is to find out if the debtor has any money, but you don’t want to waste your time or money if you know the debtor doesn’t have anything.
If you know that the debtor is on the verge of declaring bankruptcy, or homeless, or a drug addict, or has taken a vow of poverty and owns nothing more than the clothes on their back, then don’t waste your time.
Also, if you have no idea where the debtor is living, then you probably won’t be able to find them to serve the papers. So it could also be a waste of your time if you can’t find them.
If the debtor’s last name is Rockefeller or Vanderbilt, then ignore the above and proceed to step 3.
3. Apply for an OEX.
The next step is to fill out an application called an “Application and Order for Appearance and Examination” . You should also contact the court where you got the judgment and find out how and when they schedule the examinations.
You will then need to serve the papers on the debtor, which sometimes is easier said than done.
4. Conduct the Examination.
OK, here’s the interesting part. The court will schedule a date for the examination hearing. At the hearing, the judge will swear in the debtor, who will be under oath and required to answer all questions truthfully, under penalty of perjury.
Although the debtor is under oath, the actual examination is fairly informal. Each court treats them differently, but usually the creditor and debtor and their attorneys go into the hallway or a quiet corner of the courthouse and simply go through all the questions.
If there is a lot of money at stake, then it may be worth paying for a court reporter to take notes.
I’ve found these exams go one of two ways: either the debtor has money or they don’t. If they don’t, then it’s a waste of your time. If they do, they could still declare bankruptcy, although if they make too much money or have too many assets then they may not want to declare bankruptcy and risk losing their assets.
A third option is sometimes the pain and embarrassment of having to answer private, personal financial questions may finally convince the debtor to settle.
The judgment creditor is given wide latitude to ask almost any relevant question about the debtor’s assets, debts, and income. Here’s a list of sample questions to ask the debtor.
When you do the examination, you should find out if the judgment debtor has any assets that are worth pursuing. Do they have a job? Do they own a house? Do they have a car that was made more recently than the Nixon administration? Do they have a rich friend who owes them a couple hundred thousand dollars for helping them to start a company?
By the way, if the debtor doesn’t show up, you can have a bench warrant issued for their arrest. That tends to get their attention.
5. Ask the Court for a Turnover Order.
Assuming the debtor has more money than Wimpy from Popeye (the one who always said “I will gladly pay you on Tuesday for a hamburger today”), then you are going to want to do a turnover order.
A turnover order is an order by the court that the debtor must turn over certain nonexempt assets to the creditor towards satisfaction of the debt. It’s a helpful tool in collecting the assets.
Once you have done all of the above, your job is not done. You’ll need to use the Writ of Examination procedure to continue moving towards actually seizing and collecting on the debt.
I told you it wasn’t easy.
- 5 Reasons You and Your Business Are Going to Get Sued
- What to Do If You Get Sued: Your 8 Step Plan
- How to Negotiate Like a Lawyer
- How to Fight Back If Someone Who Owes You Money Declares Bankruptcy
- The 5 Biggest Mistakes of Parties Who Represent Themselves in Court Without a Lawyer
- How to Write A Demand Letter
Photo credit: Flickr/ danielmoyle