If you lack information on your Debtor that you can use to enforce your judgment, an Examination in Aid of Execution could be the way to get it.
Examinations are a good way to determine if your judgment can be enforced or not, as you are able to obtain financial information of the Debtor, such as bank accounts, employment, or other assets they own.
The Examination takes place in the jurisdiction where the Debtor resides or in the case of a Corporation, the jurisdiction where the Corporate representative resides. The Representative’s jurisdiction may differ than where the Judgment was obtained, and if that is the case, a Certificate of Judgment must be issued to proceed with the Examination in the jurisdiction of the Representative.
The Notice of Examination with the Affidavit for Enforcement Request, and Financial Information Form (if the Debtor is an individual) is served on the Debtor personally, and up to thirty days before the Examination.
I always serve the Debtor with a letter, detailing the financial records and information I want in advance of the Examination. If the Debtor fails to provide the documents, I rely on the letter to justify an award of costs for the Debtor’s failure to comply with our request.
If a Debtor fails to attend the Examination, which are now done virtually, a Further Examination/Contempt Hearing is scheduled by the Court. Once again, they must be served personally, unless an order for Subservice is granted, which can be in certain circumstances.
If the Debtor attends, the Examination proceeds, and hopefully you’re able to get enough financial information out of them to enforce your Judgment. However, if they fail to attend, the Debtor will be found in Contempt, and a Warrant for their arrest is eventually issued. This means that if they are ever pulled over for a traffic violation, or better yet, when they’re at the Airport leaving or returning from vacation, they’re getting arrested and thrown in jail until they can appear before a Judge to purge their contempt.
It’s usually around the time they’re arrested that they will either pay or make arrangements to do so.
How embarrassing would it be to go to jail for not appearing at a Small Claims Court matter? Not the “cred” you want in jail.
Murray Brown, Licensed Paralegal