Recovering a judgment depends on the judgment debtor having sufficient available assets. Most debtors are broke, which explains why so few judgments get recovered. Luckily, a few judgments are against at least somewhat successful businesses, or people with some level of available income and assets. With the economic change, conventional jobs are declining, which means there are more self-employed debtors, or debtors having alternate (or no) cash flow situations.
When your judgment debtor is a very small business or an individual who is not broke, yet does not work at a conventional job; you will probably need to use a judgment debtor examination and a Subpoena Duces Tecum (SDT). The SDT (it may be called something different in your state) is used to examine third-party records from people or business vendors that possess assets of your judgment debtor, or have information about the debtor’s income and assets. The SDT doesn’t order a person to appear, it commands records to appear. If your judgment debtors migt be a public employees this website; transparentcalifornia.com may confirm it, and provide you with information about their salaries and benefits.
This article is my opinion, and not legal advice. I am a judgment broker, and am not a lawyer. If you ever need any legal advice or a strategy to use, please contact a lawyer.
After your judgment debtor examination is calendared with the court and your subpoena is court-endorsed; you can also get additional subpoenas for third-parties that either possess, or probably know about your debtor’s assets. Usually, you need to provide a short explanation/declaration of why the third-party should be subpoenaed. Each subpoena must be personally served. Some judgment debtor third-party examples would be their landlord, spouse, bank, business partner, accountant, doctor, their customers, etc.
The forms, procedures, time deadlines, and costs to subpoena third-parties for records related to your judgment debtor, vary by state and court. In California, you use the Judicial Council Form SUBP-010 (the Deposition Subpoena for Production of Business Records form), and create your own separate attachment number 3, where you would list the documents and information you are requesting from the third-party.
Take your subpoenas to the court, pay them, and if they are filled out correctly, the court will schedule a date for a hearing, and then stamp the subpoenas with their seal. Pick a hearing date far enough out, to give your process server plenty of time to serve everyone. Each third-party subpoena will have the same hearing (due) date and time as the judgment debtor examination. Attorneys can usually sign their own subpoenas, and schedule the hearing on the court’s calendar. Subpoena attachments (your questions) are not usually filed with the court.
Once you get your subpoenas court stamped with the hearing date, and the needed forms/declarations/attachments are ready, make several copies of each, and have a registered process server serve the documents upon the third-parties. Make sure to follow the requirements for your state, for example time limits, witness fees, mileage fees, etc.
In addition to the third-parties, the judgment debtor themselves must also be served well before the court hearing date. You do not have to share the attachment of questions intended for third-parties with your judgment debtor. If the third-party is a business, usually you can serve any officer, director, custodian of records, or any agent or employee authorized by the organization to accept service of a subpoena, in California this is covered by CCP 2020.220.
Q: What if you are subpoenaing an ex-wife of a debtor. and just found out she is now the EX-wife. At the time she been served, she had not requested any fees; but next day she calls and requested mileage fees, etc. Do I have to pay her those fees if she had not demanded them at the time she received the subpoena? Also, I noticed in California, it is now $35 per appearance and 20 cents per mile. Do you pay those before the person comes to court?
A: Pay the appearance and mileage fees right away. The California codes are contradictory on this, whether they have to be offered at time of service or in court. Just do it. And remember, the mileage is for round trip.
In certain states, for example California, one must be aware of “notice to consumer” laws, when subpoenaing records for judgment debtors that are very small companies or individuals. If your debtor is a person or a very small company, you will need the Judicial Council Form SUBP-025 (the Notice to Consumer or Employee and Objection).
The notice to consumer must be served for any consumer records, whether or not it is a judgment consumer-based debt. If the business records include information on consumers, every one (especially the consumers) must be noticed! Usually, if business records have only other business records, no consumer notice needs to be served; however some lawyers and judges may not agree. The consumer notice form must be served on the debtor, (service by mail is OK) at least 10 days before your process server serves the third-parties. The California PDF form is at: www.courts.ca.gov/documents/subp025.pdf
A great California site for a step-by-step guide PDF for “Getting Business Records for Litigation” is at: “http://www.saclaw.lib.ca.us/Uploads/files/Step-by- >Step/bus-record-sbs.pdf Also, be sure to read CCP Section 2020.410 and CCP 1985.3(b)(3).
A California third-party SDT checklist:
1) Did you have the mandatory mileage fees paid at time of service of the 3rd party OEX?
2) If you are asking for personal or employment records, the Notice to Consumer and a copy of the subpoena with the list of documents to be produced must be served at least 20 days prior to the production date. This would be your first step.
3) The subpoena for records along with the $15.00 witness fee (if for records only) must be served at least 15 days prior to the production date.
4) Serve the consumer a copy of the 3rd-party ORAP immediately after serving the 3rd-party – by mail is fine, and file the proof of service. Must be served by a non-party over the age of 18.
5) Pay 20 cents per mile on the ORAP at the time of service to the 3rd party or it is invalid.
6) Pay $35.00 plus 20 cents per mile on personal appearance subpoenas, but $15.00 flat if it is for the production of documents. only.
Make sure to serve a subpoena on the correct party, so serve the person authorized by the organization to accept service of a subpoena. Do not subpoena the CEO if the judgment was not against them personally. Whoever is served is subject to a possible bench warrant or lawsuit if they do not show up or comply with the Subpoena.
Some creditors include a self-addressed stamped envelope with their subpoena, however they do not put “send the documents to me” anywhere, and sometimes the subpoenaed party just mails to the documents to the creditor. If that happens, take the upcoming examination hearing off the court’s calender.
At the hearing, the court should simply hand the documents to you. Usually, the creditor gets to keep the documents, otherwise they will have to get a copy made at the court. One thing to find out is who signs the corporate tax return?
At the hearing, come equipped with your case laws on “leave no stone unturned in the search for assets,” etc. Some attorneys complain to the judge that the business did not receive a “Notice to Consumer”. If that happens, explain “Your Honor, This is not a consumer debt, so no notice is required”.
The goal of subpoenaed document production requests is to get a copy of the requested documents. Third-party witnesses do not keep extra copies of your debtor’s records on file in case they are subpoenaed someday. One way or the other, you must pay for the work of copying records. In court, you usually must hire a legal document copy service to act as the deposition officer. The deposition officer makes copies of the records supplied by the third-party either at an arranged location before the hearing, or sometimes at or near the court itself. Usually the deposition officer handles everything, and bills you later for their costs and fees.
If for some reason, including the awesome chance a settlement might be reached and you get paid, you can take your court-scheduled examination off the court’s calender. You simply call the court and tell them you want it off calendar. Then, notice the other person/entity by phone or mail. Then, file an affidavit with the court. On pleading paper, you can put a heading similar to “NOTICE RE REMOVING THE X HEARING FROM CALENDAR”. Your affidavit (one paragraph is enough) should say that you noticed the other party and how you did it. “On X date I called the court and request that X hearing on X date be taken off calendar. I notified the individual(s) by phone/mail”. Sign the affirmation under penalty of perjury.