In 2018 our firm obtained judgment against a debtor on behalf of a client in Small Claims Court. We enforced the judgment by garnishing a bank account, only garnishing a small amount of the judgment.
After the garnishment was issued, the debtor provided a low-ball offer that we did not accept, and then they disappeared.
We proceeded to schedule an Examination in Aid of Execution, which lets us ask about the debtors financial situation.
Examinations can be served personally or an alternate to personal service, meaning an adult of the same household can accept service if the debtor isn’t there. The Court, however, prefers personal service for obvious reasons.
Our debtor was served an alternate to personal service by serving their parent. The debtor ignored the Notice, failed to attend at the Examination and a Further Examination/Contempt Hearing was scheduled.
If a debtor appears at the second hearing, the hearing is an Examination, if they do not appear, then the hearing becomes a Contempt Hearing. The Further Examination/Contempt Hearing must be served personally in accordance with the Rules of Small Claims Court.
If a debtor fails to attend the second hearing, and they are found in contempt of Court, a warrant for their arrest can be issued and they can face jail time, which is why personal service is important.
Our process server made over 10 attempts at personal service, and our debtor evaded service with the assistance of their parents. Over $1,300.00 later in process server fees, and we were not successful at serving them.
We brought a Motion for substitutional service of the Notice of Further Examination/Contempt Hearing.
This is unheard of in Small Claims Court, because of the serious repercussions of failing to attend the hearing. The Court wants to ensure that the debtor is served personally, so they have no one to blame but themselves if they are found in contempt and thrown in jail.
There is no legal authority in Small Claims Court that allows substitutional service of these Orders.
I argued that it was in the interests of justice to allow our client to serve the notice by an alternate to personal service when the evasion of service with the assistance of one’s parents was so blatant. Debtors have been getting away with evading service for far too long, which is frustrating to Plaintiff’s trying to enforce their judgments.
I also argued that the debtor was acting in bad faith in cooperating with their parents, which justified costs consequences for the Motion.
The Deputy Judge agreed with our arguments. Not only did we get our Order to serve the Notice of Contempt Hearing on an adult of the debtor’s household, significant costs were also awarded to our client for the costs associated with the attempts at personal service.
This is a step in the right direction. If a debtor evades service, with or without assistance, and an order for alternate to personal service is granted and the debtor fails to attend and ends up in jail, they have no one to blame but themselves.
We look forward to the next hearing to see if the debtor shows up!
Murray Brown, Licensed Paralegal