In order to get the information necessary to seize a debtor's assets or garnish his income, Rule 60.18 of the Rules of Court permit a creditor to require a debtor to attend an examination under oath before a court reporter and be questioned in relation to:
(a) the reason for non-payment or non-performance of the judgment;
(b) the debtor's income and property;
(c) the debts owed to and by the debtor;
(d) the disposal the debtor has made of any property either before or after the making of the order;
(e) the debtor's present, past and future means to satisfy the order;
(f) whether the debtor intends to obey the order or has any reason for not doing so; and
(g) any other matter pertinent to the enforcement of the order.
In reading the rule, the most important provision is the ability to ask a question about "any other matter pertinent to the enforcement of the order." That means that legal research into the panoply of post-judgment enforcement remedies must be done before the examination in aid of execution (formerly called a judgment debtor examination) to determine what you have to establish to obtain those remedies and, therefore, what evidence you need from the debtor to assist you in obtaining those remedies. Obviously, the debtor is hesitant to cooperate in this process, so one has to be prepared for the possibility that the debtor will ignore a personally served Notice of Examination,1 and one will have to get a court order to re-attend. The court may set out the method of service of for the second Notice of Examination. A copy of that Order, and the second Notice of Examination is then served. Ultimately, the court may make an Order for contempt, but only after service of the motion for contempt personally, and not by an alternative personal service, absent extraordinary circumstances, such as proof that the Debtor was evading service.2
An officer or director of a corporate debtor or, in the case of a debtor that is a partnership or sole proprietorship, a partner or sole proprietor against whom the order may be enforced may be examined on behalf of the debtor. Only one examination may be held in a twelve-month period in respect of a debtor in the same proceeding unless the court orders otherwise. Therefore, proper preparation is key. Where it appears from an examination that a debtor has concealed or made away with property to defeat or defraud creditors, a judge may make a contempt order against the debtor, so pursuing a line of questioning about the history of the property belong to the debtor into the hands of third parties is an important part of the examination.3 When the debtor feigns a lack of knowledge, or cannot be located, one can rely on Rule 60.18 (6) which provides that where any difficulty arises concerning the enforcement of an order, the court may,
(a) make an order for the examination of any person who the court is satisfied may have knowledge of the matters set out in (a) through (g); and
(b) make such order for the examination of any other person as is just.
Because the Rules of Court therefore provide that a creditor may examine a debtor not only as to his income and property, and debts owed to and by the debtor, but also with respect to the disposal that the debtor has made of any property either before or after the judgment, the creditor is entitled to examine not only as the debtor's present means to satisfy the judgment, but also his means and assets previous to the judgment, for example, at the time that the debt to the plaintiffs was contracted. A debtor who contracted for the purchase of items at a time when they could not have paid for them may be guilty of fraud. Property transferred by the debtor prior to judgment for the purpose of avoiding creditors may also be challenged. Preferential transactions with non-arm's length creditors to the detriment of other creditors at a time when the debtor was insolvent, may also be the subject of a challenge. All of these areas may be explored at an examination in aid of execution. A historical examination of the debtor's assets and income is critical to determining historical patterns which demonstrate whether, and when, the debtor started to divert or hide income and assets from the impending threat of creditors' claims.
Clients retain high paid legal counsel to win trials for them, but often leave it to collection agencies to collect those judgments. Obtaining a judgment may only be half the battle, and it is important to treat post-judgment realization of that asset with the importance it deserves as part of an overall process of turning a claim into cash. Taking advantage of the expansive rights allowed under the Rules of Civil Procedure by a properly conducted Examination in Aid of Execution is a critical feature to that process, and must be understood as such.