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DEBTOR EXAMINATIONS

INTRODUCTION

A debtor examination is a post-judgment enforcement remedy where the creditor asks questions to the debtor to discover the debtor's assets that may be applied in satisfaction of the judgment. The laws and procedures for taking debtor examinations vary wildly between jurisdictions. Typically, the laws and procedures of the debtor's state of residence will apply.

Some jurisdictions, such as California, treat a debtor's examination as a hearing which is usually conducted at the courthouse. In these jurisdictions, the debtor exam might be held in the courthouse hallway, cafeteria, or unused jury room. Other jurisdictions, such as Nevada, and the federal courts effectively treat a debtor's examination as a deposition where it is held away from the courthouse, usually in a conference room.

Debtor examinations are usually held before a court reporter with the debtor being sworn as to the truthfulness of his or her answers. If the debtor refuses to answer an appropriate question, the debtor can be immediately compelled by the court to answer under penalty of contempt. I've been in cases where a debtor refused to answer a question about an asset, the court ordered the debtor to answer, the debtor still refused to answer, and the court on-the-spot ordered the debtor to go sit in jail until he agreed to answer.

The debtor exam may last as long as allowed by local procedure. Some jurisdictions ― particularly those which treat debtor exams as depositions ― limit the examination to a set number of hours or a day, while other jurisdictions allow the examination to go on as long as necessary for the creditor's questions to be exhausted.

For experienced creditor rights attorneys, finding the debtor's assets is a secondary purpose of the debtor exam. The primary purpose for these attorneys is to catch the debtor answering questions falsely so that the court may be convinced to employ harsher remedies to compel the debtor to find his wallet.

Which is to say that quality creditor rights counsel will employ private investigators and data researchers, and send out subpoenas to third-parties such as banks and other financial institutions, so as to identify the debtor's assets in advance of the examination. Ideally, the answers to many of these questions will be known by creditor counsel before the first question is even asked.

The mark of inexperienced creditor counsel is to take a debtor exam without first knowing at least the debtor's assets that are easily discoverable with the hope that the debtor's answers will lead them to such assets. This usually means that such creditor counsel will ask only very generalized questions about the debtor's assets for which the debtor can fudge only partially responsive answers. All such exams usually accomplish is to indicate to debtor certain areas of danger.

In many jurisdictions, at the conclusion of the debtor's examination the creditor can ask that the debtor turn over to the levying officer (sheriff) any of the debtor's non-exempt assets that were identified in the examination. This famously occurred after OJ Simpson's debtor examination where his creditor asked that he turn over his expensive Rolex and he did (it later turned out to be a $15 counterfeit).

What follows is a non-exhaustive list of typical debtor examination questions and document demands. Quality creditor-rights counsel will of course use lists such as these to develop their own list of questions that are sharply tailored to each individual debtor. And they will know the truth in advance.

DEBTOR EXAM QUESTIONS

PRELIMINARY EXAMINATION PROCEDURE & IDENTIFICATION

Oath and Competency
Core Personal Identification

RESIDENCE & HOUSEHOLD COMPOSITION

Current Residence Details
Rental Information
Household Members & Boarders
Residence History

MARITAL & FAMILY STATUS

Current Marriage or Partnership
Children and Dependents
Prior Marriages

EMPLOYMENT & INCOME SOURCES

Primary Employment
Self-Employment and Business Ownership
Supplemental and Family Income

BANKING AND FINANCIAL ACCOUNTS

Current Accounts and Balances
Safe Deposit Boxes and Storage

REAL PROPERTY INTERESTS

Ownership and Title
Encumbrances and Equity
Leasehold and Tenant Interests
Trust Deeds and Promissory Notes

MOTOR VEHICLES AND TRANSPORTATION

Current Vehicles
Liens and Financing
Other Transportation Assets

PERSONAL PROPERTY AND VALUABLES

Household Goods and Electronics
Jewelry and Collections
Other Tangible Assets

INTELLECTUAL PROPERTY AND MISCELLANEOUS INTERESTS

Patents and Trademarks
Documents of Title

SECURITIES AND INVESTMENT ASSETS

Stocks and Corporate Interests
Bonds and Other Instruments

TRUSTS, ESTATES, AND INHERITANCES

Interests in Trusts
Inheritances and Wills

RETIREMENT AND INSURANCE ASSETS

Retirement Accounts
Life Insurance

LEGAL CLAIMS AND PENDING LITIGATION

Current and Past Lawsuits
Judgments in Your Favor

ACCOUNTS RECEIVABLE AND DEBTS OWED TO YOU

General Indebtedness
Business Receivables

LIABILITIES, CREDITORS, AND FINANCIAL DISTRESS

Current Liabilities
Credit and Loans
Bankruptcy and Insolvency

TRANSFERS AND ASSET DISPOSITION

Recent Transfers
Insider and Fraudulent Transfers

BOOKS, RECORDS, AND TAX COMPLIANCE

Financial Record Keeping
Income Tax Returns

SPECIFIC QUESTIONS FOR BUSINESS ENTITIES

Corporate Structure and Officers
Business Assets and Operations
Corporate Banking and Liabilities

CRYPTOCURRENCY AND DIGITAL ASSETS

Wallet Identification and Access
Exchanges and Mixing Services

OFFSHORE STRUCTURES AND CROSS-BORDER INTERESTS

Foreign Jurisdictions
Foreign Asset Control

VOIDABLE TRANSACTIONS & "BADGES OF FRAUD"

Insider Transfers
Solvency and Intent

ADVANCED CORPORATE & "SHELL" INQUIRIES

Alter Ego and Entity Piercing
Nominal Ownership

LIFESTYLE AND FORENSIC "TRAPS"

Wallet and On-Person Assets
De Facto Control

FINAL WRAP-UP AND VERIFICATION

DOCUMENTS TO REQUEST

PERSONAL IDENTIFICATION & RESIDENCE RECORDS

BANKING & FINANCIAL INSTITUTION RECORDS

INCOME & EMPLOYMENT DOCUMENTATION

REAL & PERSONAL PROPERTY RECORDS

BUSINESS & INVESTMENT RECORDS

LEGAL, DEBT, & TRANSFER RECORDS





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