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Post Judgment Discovery
Recovering a judgment requires learning relevant information about your judgment debtor and their assets. Usually, it is difficult to recover a judgment if you do not know what availble assets your adversary possesses.
There are two ways to get the information you need. One way is to hire a private investigator, expert, or some service to find the judgment debtor's bank accounts, real estate, income sources, and perhaps hidden assets. This article does not cover that way.
This article covers the other way to get this information, through formal discovery with court-scheduled examinations and document production requests.
Discovery is a formal court process where you request relevant information or documents from your judgment debtor, or third parties possessing information about the judgment debtor's assets, in an attempt to "discover" pertinent facts about the assets of the judgment debtor.
Examples of discovery tools available in either pre or post-judgment proceedings, includes judgment debtor examinations, interrogatories, depositions, requests for documents or things to be produced, and permission to enter upon land or other property for inspection or other purposes.
You should always be prepared to make your own copies of the required documents If the judgment debtor only brings originals (which they are entitled to do), there is no plausible way to make them turn over the originals to you. However, documents are typically produced under subpoena for "inspection and copying". It is advisable that you bring a portable scanner with you to any ORAP where you have a court reporter and/or you expect production of documents. It is your responsibility to adequately prepare for the copying of the documents.
Most people will check with their attorney; or if doing discovery themselves, start by learning their state laws and the rules of the local court. Then, find examples of discovery motions that have been used in your court, to find out which methods of post-judgment discovery are available to use.
Sometimes, judgment debtors that have not cooperated before, and have no willingness to pay off their judgment debt, start paying, after they are served with a court-ordered request for post-judgment discovery.
The kind of information that may be obtained with the process of post-judgment discovery procedures is usually very broad. Generally the motto is "Leave no stone unturned." Usually, courts are supportive of post-judgment discovery, however some are reducing their support, due to the economic crunch.
As long as one prepares the right paperwork, pays the court, and has all parties served properly, one can also usually bring in third-parties that possess or know about, the judgment debtor's assets.
An example of a third-party witness to a judgment debtor's assets would be the judgment debtor's employer, to provide employment and payroll records. Another example is a bank or financial institution, that will usually be required to provide information on the judgment debtor's bank accounts. Be careful ordering bank records because banks charge a lot, so be careful not to order records you do not need.
What happens if your judgment debtor will not comply with the court's order to answer your questions, produce documents, or even to show up in court? The answer depends on what court and which state.
In some places, flagrantly disobeying a court order in a post-judgment proceeding is punished with contempt of court charges and possible jail time, or at least a bench warrant for the judgment debtor's arrest. In other places, judgment debtors are never arrested, and contempt of court on civil matters are not a priority for busy courts. If your court and Sheriff take contempt of court and bench warrants seriously, it will sure get your judgment debtor's attention.
Often, the real power of court discovery is when third-parties served to produce records or answer questions concerning the judgment debtor and/or their assets. Even if a judgment debtor does not care about the court's order to appear for a judgment debtor examination, they may become uncomfortable when their spouse, business partner, landlord, or employer gets served with a court order to appear at court.
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