When a judgment debtor’s income sources or assets are concealed or unknown, a tool for persistent judgment creditors can be a series of judgment debtor examinations which include document production requests. After a judgment debtor is personally served notice of a court-scheduled judgment debtor examination, three things might happen:
1) They might show up and cooperate, or at least pretend to cooperate. Nothing makes judgment debtors tell the truth at, or bring accurate documents to, court examinations. Hiring a court reporter to record the responses of your judgment debtor might improve their truthfulness, however court reporters are expensive.
2) They might not show up at all, in which case the judgment creditor may then be able to pay for a civil bench warrant. In some places, Sheriffs pick up judgment debtors for civil bench warrants. In most places, the Sheriffs are too busy, and buying a bench warrant is often a waste of money for the judgment creditor.
3) Before the date of the court examination, the judgment debtor (or their attorney) might ask for a stipulation for a continuance; to move the examination to some future date. Stipulating to a date change of a judgment debtor examination is the focus of this article.
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.
Continuances of judgment debtor examinations can be requested either by the debtor’s attorney (usually by them filing their notice of unavailability) or by the judgment debtor themselves, for any other reason. Stipulating means you agree in writing to the other side’s request. Such date stipulations update the court’s record to schedule the new judgment debtor examination date.
There seems to be no case law that says you must agree to stipulate to your judgment debtor attorney’s notice of unavailability filing, so it is probably not required. However, it is usually a good idea to be willing to agree to stipulate with the debtor’s lawyer, even when you have a sneaky or fraudulent judgment debtor.
Let me share a story of what happened when I had a judgment debtor examination scheduled. I received a phone call from the judgment debtor’s attorney, and then I asked him to email me a letter of representation. He told me I needed to cancel the JDX (Judgment Debtor eXamination) because it was inconvenient for the judgment debtor. This was a small claims case. The remaining amount of the judgment is $7,900 because I have been garnishing the debtor’s wages. I know the debtor makes more than he instructed his employee to write down on the levy form.
The attorney asked me “So, what happens if he does not show up?”, at which point I replied again for him to send me a letter of representation, then I would be glad to call him back. The lawyer flaked. You should not cancel a JDX unless you are paid in full. The judgment debtor was served within the parameters of time required.
An Order Of Examination is a bench order for the judgment debtor to appear in court. You can not change the date, only the judge can do that, If you debtor is represented by an attorney, then that attorney should know that, If the debtor does not show up at the hearing, the creditor should ask the judge for a bench warrant; however sometimes bench warrants do nothing.
Agreeing to a date change stipulation with the debtor’s attorney shows the court and the judge that you are reasonable. It should also allow the court to retain jurisdiction over the judgment debtor examination, any subpoenaed document requests, and any possible judgment debtor examination lien.
Sometimes, the reasons given by the judgment debtor or their attorney may seem fabricated or silly; however most judges are very sympathetic to the schedules of attorneys, and the wishes of judgment debtors. For this reason, it is usually a good idea to agree to a date stipulation, while being careful to make sure you do not lose your rights.
Having the court retain jurisdiction over your judgment debtor is very important, especially if you have already had your document production request subpoena served on them. The goal is to try to make sure any examination date stipulation agreement preserves the court’s jurisdiction, any possible examination lien, and especially specifically identifies or references, any previously subpoenaed document requests.
If the court approved stipulation documents the date change, however does not mention your subpoenaed document request; your judgment debtor might get away with not bringing any requested documents.
If the court’s jurisdiction rights to the subpoenaed documents are lost, judgment debtor will make up statements like: “Sorry, I just got this new order and it only said I needed to show up”, “I thought it wasn’t needed anymore”, “I thought that was canceled”, or “Oh!, you still wanted those?”; may be all be accepted by the judge. If your subpoena rights are not preserved, judgment debtors do not have to bring in any documents.
If you are planning to agree to a judgment debtor examination date change stipulation, have the debtors attorney do most of the work. You may not have to appear in court when you agree to a date change stipulation. All that is needed is a new court order that continues both the debtor examination date, and includes that same due date for the previously served subpoenaed document requests.
Discuss what court dates and times will work, and what the stipulation agreement should include, with the judgment debtor’s attorney. A good attorney will cooperate with you. Then, ask your debtor’s lawyer to create a stipulation order that moves both the examination and subpoenaed document request to a future date.
Have the judgment debtor’s attorney send you the stipulation to sign, for their future ex-parte hearing to get their order. Or, ask the attorney to join you at the court for a joint motion to continue their client’s examination and subpoena request; at a mutually agreed date and time, on a scheduled date on the civil court’s ex-parte calendar.
Remember, that the proof of service (POS) of the examination is what gives the court jurisdiction over the debtor if they do not show up. If the parties simply stipulate among themselves to continue it, there is nothing a creditor or the courts can do if they are a no show on the stipulated date. Usually, the only way for the courts to retain jurisdiction is if the court, on the record; orders the debtor back at a specified date.
If the subpoenaed documents have already been requested and served, do not agree to meet with the judgment debtor or their attorney away from the court, because the power to enforce a subpoena document request usually exists only within the court.
Anyone asking for stipulated date continuations should be sure to familiarize themselves with the local court rules, and the general practices of the particular judge. How, or whether the court will grant a continuance of a judgment debtor examination with a stipulation can vary by court.