How to File for and Conduct a Debtor Examination Hearing
Excerpted from Collect Your Judgment in 5 Easy Steps by Adrienne M. McMillan ©2007
In a debtor examination hearing, you examine (question) your debtor at the courthouse about what assets he or she owns and where they are located. You may also examine a third party (someone not named on the judgment) who has information about your debtors finances, owes your debtor money, or is in possession of your debtors property.
Debtor examination hearings are called different names in different jurisdictions. You may hear the term OEX when referring to debtor examinations; this stands for an order to appear for examination. You can refer to your local court rules to find out what your jurisdiction calls its debtor examinations. Some of the more common names are citation to discover assets, financial disclosure statement, disclosure hearing, debtor rule examination, and subpoena and affidavit for judgment debtor examination.
In addition to referring to your local rules, you can also check a practice guide in your local law library to find out what to call a debtor examination in your court.
EXAMPLES OF STATE-SPECIFIC REQUIREMENTS
In Hawaii, to examine your debtor, you would file an ex parte motion for an examination of your judgment debtor. The same form also works for examining a third person who holds money or property belonging to your debtor.
In Wisconsin, your debtor is sent a statement of assets form as soon as the judgment is entered. A statement of assets is a financial statement to be completed by your debtor and mailed directly back to you. Your debtor has fifteen days to send the statement of assets to you, unless an appeal is filed or he or she has asked the court for an order delaying that fifteen-day due date. Otherwise, you could file a motion and order for contempt. If your debtor failed to attend the hearing on the motion for contempt, the court could issue a bench warrant for your debtors arrest. If he or she does show up to the hearing, the court would order him or her to complete the statement of assets right there in court.
In Georgia, you are not permitted to go straight to an examination hearing. You must first have the court clerk send your debtor interrogatories (written questions) by certified mail. If your debtor fails to answer (file a response to the examination questions) within thirty days, you then file a motion to get a hearing to require an answer to the interrogatories form.
In New Jersey, the process is similar to the process in Georgia. You need to first send your debtor an information subpoena, which is a form of interrogatories that he or she has twenty-one days to answer. You have to have someone serve him or her by personal service or by certified mail. If your debtor does not respond, you may then ask the court for permission to send interrogatories to a third party who may owe your defendant money or possess anything of value owned by your defendant.
In Kentucky, as in New Jersey and Georgia, you are required to send your debtor written interrogatories. (Refer to a practice guide for sample interrogatories.) Your debtor then has thirty days to answer. If he or she fails to do so, you have to file a post-judgment motion/order requiring him or her to answer your interrogatories.
If your state does not require you to first send your debtor interrogatories, proceed directly to a debtor examination hearing.
It is very possible that your court may call its debtor examinations something completely different and even require you to follow more or fewer steps than covered here. Keep your focus on the big pictureunderstand the overall process before you file for a debtor examination, whatever that process may be called.
SCHEDULING AN EXAMINATION
To file for an examination hearing, get the required forms from your court clerks office. Your local court rules will tell you on which days of the week your courthouse holds examination hearings, in which room (sometimes called department) you should appear, and how to file the forms. You may have to pick a date for your hearing, write it on your documents, and file them with the court clerk before you serve the other party. Or you may have to do just the oppositepick a date for your hearing, write it on your documents, serve the party, and then file your papers. If standardized forms are available, read them carefully before completing them.
WHERE TO FILE
Check to see if there are restrictions concerning where your debtor currently lives and in which courthouse your examination hearing must be held. For example, it may be required that your examination hearing be held at a courthouse within a certain number miles of where your debtor currently lives. If your debtor has moved outside that specified distance from your courthouse, then you will have to hold your examination in a courthouse closer to where your debtor lives now. If you end up having to go to another courthouse, check the local rules of that courthouse for the requirements. Again, try to look up the rules for that new courthouse online before going down to your local law library.
IF YOUR DEBTOR HAS MOVED
In most states, if your debtor moved to another county in your state, all you need to do is get a certified copy of your judgment or an abstract of judgment from the court that entered your judgment. Take your abstract (once issued by the court) or your certified copy of your judgment to the courthouse closest to your debtors new home and file for a debtors examination hearing. Inform the clerk why you are filing for an examination hearing in a different court. You will probably be given a different case number to be used just for that examination hearing. You will resume use of your original case number for every other procedure in your courthouse after that hearing.
WHO TO EXAMINE
You can examine your debtor and anyone else who owes your debtor money, controls your debtors property, or has knowledge of your debtors assets. As mentioned earlier, some states require that you examine your debtor first before examining a third party, but you may be allowed to skip examining your debtor and go directly to examining a third party if you have cause (a good reason).
If you are going to examine someone other than your debtor, you will need to either fill out forms for a third-party examination or note on the form that you are examining a third party. If your debtor is a corporation, LP, or LLC, you will always be examining a third party (because those businesses are entities and not human beings), such as the companys chief executive officer (CEO) or chief financial officer (CFO).
Your local rules will also tell you how many copies of your forms you must file. Also, note whether the forms can be handwritten or whether they must be typed. When in doubt, type the forms. Take at least three copies with you along with the original; one copy for your debtor, one copy for you, one spare, and the original for the court. Again, first find out if you need to file first and then serve your debtor or serve your debtor first and then file your paperwork.
SCHEDULING A TIME
Before you schedule your hearing date, you will need to find out how many days notice you must give your debtor (meaning how long you have to serve your debtor the paperwork before the hearing). Be sure that you schedule your hearing far enough in the future that you allow yourself enough time to have your debtor served.
In some courts, debtor exams are held every day at the same time. If this is the case in your courthouse, just select a day that will give you enough time to serve your debtor with the required notice and that is good for your schedule. You must then have your debtor personally served with the debtors copy so he or she knows when and where to come to court. Whoever serves your debtor needs to complete a proof of service and return it to you. Return the proof of service and a copy of your paperwork to the clerks office.
In some states, the clerk does all the scheduling. You just need to complete t