Home Articles FAQ Site Map
Civil Bench Warrants
One of the age-old tools in judgment enforcement are judgment debtor (and third parties that possess or know about the debtor's assets) exams at the court. A related tool is document production requests. What happens if a properly-served debtor does not show up at the court hearing? Generally in California, you ask the debtor examination be continued, and ask the court to issue a bench warrant, that the debtor held (not released) until the continued examination can be completed, pursuant to CCP 708.170(a)(1)(B) and CCP 1993.
If you ask and pay the court, they will issue or request a bench warrant (sometimes named a Warrant Of Body Attachment). You must pay the court or sheriff, to get the warrant issued and made active.
After the civil bench warrant is issued, the court usually holds it for 10 days to give the other party a chance to cooperate with you. Then, you have the Sheriff serve the warrant of body attachment, and the Sheriff will call you and give you a date to come back to question your judgment debtor, once they have served them with it. You might need to prepare an order, a notice of entry of order, which you yourself can sign, and then have your registered process server mail it to your judgment debtor by first-class mail, and then file a copy with the court, attached to the proof of service of the notice of entry of order.
What happens after you get a bench warrant depends on what state and county your debtor resides at. In some places in the US, the debtor will be picked up and becomes a mandatory guest at a court or sheriff office, sometimes held overnight, and told they better show up at the next hearing, and if they fail to show up again, they must spend ten days in jail.
In most places in the US, the average result is much less impressive. Where I live, in Santa Clara County, the odds are less than 1 in 100 the debtor will get picked up at all. Often, only the most down and out debtors, the kind that gets arrested often, are picked up on civil bench warrants.
Keep in mind that when a debtor does not show up in court after being properly served, they have disobeyed the court, not the creditor, so this is a contempt of court issue.
If your debtor seems poor and down and out, perhaps it is best to stop spending time and money on them, until you find assets you can might be able to recover, maybe years later. If your debtor is poor, what good will a bench warrant do?
Even if you want bad luck to happen to your debtor, you are far better off not trying to get them fired, or involving law enforcement/regulatory bodies, etc, because it creates more expense or work for you, and may reduce their income, which means they may have less assets to pay you with.
Especially if your debtor is well-known; for example, a professional, a lawyer, a doctor, or anyone with a good job or business, you might get some results with a polite letter. Remember to send the "Full Miranda" on your first written communications with debtors.
The letter (for a debtor who is doing well) might say something close to "You believe they are acting unethically, and are displaying conduct which is at variance with their reputation and standing at their business, job, organization, church, law firm, etc". Also, you could "suggest they ought to comply with the court order to appear at their debtor examination, etc." In California, a judgment debtor exam creates a one-year "silent lien" on all their personal property, which might make you a secured creditor if they later file for bankruptcy protection.
The less you write, the better. Sometime the debtor will fill in the words that should be missing in your letter. Never threaten anything, even something that is totally legal. I have gotten a payment from a debtor after mailing them a blank sheet of paper. Their mind filled in all the missing words that were needed to help them see the light.
What if you want to get the debtor picked up and detained, even if (depending on your state) there is only a slim chance of that happening? Then, you would pay the court and/or the sheriff for a bench warrant (warrant of body attachment). Usually this is done with a letter of instruction and the required fee, payable to the sheriff where "pickup service" for the judgment debtor is requested.
The court issues a warrant of body attachment and forwards it, along with the letter of instruction and fees, directly to a sheriff for service. Sometimes the court asks you to supply some identifying information, e.g., height, weight, color of eyes, hair, etc.
The bench warrant is directed to the local county sheriff. In California, the sheriff will only accept a warrant of body attachment if it comes from a California court or sheriff.
In California, a civil bench warrant is not a "real" arrest warrant and debtors rarely get arrested. The warrant is a piece of paper the sheriff charges you (e.g.) $105.00 to serve on the debtor, who is not usually arrested. There is a small chance that notice of that, might get the debtor's attention, and get them to pay, because anything can happen.
There are usually two types of warrants of body attachment described by California's CCPs 708.130, 708.170, and 1209-1202 laws. Unlike criminal warrants that are entered into all police and sheriff's computers; civil warrants are sent only to one local sheriffs department, which is responsible (although usually not sufficiently staffed) to serve the warrant on the judgment debtor.
In California, the laws do not allow the sheriffs to collect any civil bail money. (In some California counties, the sheriff's do collect bail and lock up debtors, however the laws of California do not support this.)
Not knowing all the laws of California is a reason why some California sheriff's pick up debtors, and some debtors are intimidated by bench warrants. It is a shame that in California, the laws make civil bench warrants mostly toothless.
While some judgment debtors with a civil bench warrant against them are picked up, you cannot count on it. If the judgment and the debtor assets are big, getting civil bench warrants might later help to persuade a judge to appoint a receiver.
Go Back To Articles JudgmentBuy.com Home Page
|JudgmentBuy - Contact Merdat Group at firstname.lastname@example.org|
Merdat Group |
5420 New Jesup Highway # 200, Brunswick, GA 31523
© Copyright 2001-2014 Merdat Group. Entire site is protected by copyright laws. All rights reserved.