Collecting a Judgment

Once a judgment is obtained, you can take additional steps to learn about the debtor who owes you funds and whether the debtor can pay the judgment against him or herself. The first possibility is an examination in aid of execution, and the second is a subpoena to debtor. Both of these options help you better understand the financial situation of your debtor, and how you can collect on your debt.

Examination in Aid of Execution

An examination in aid of execution hearing involves only the creditor, the debtor and counsel. Parties can also have a court reporter present to record the proceedings. You can ask a broader range of questions during an examination than during a subpoena to debtor – however, there are still restrictions to the types of questions that can be asked. You can question the debtor on:

• any matter pertinent to the enforcement of the order;
• the reason for nonpayment or non-performance of the order;
• the debtor’s income and property;
• the debts owed to and by the debtor;
• any property the debtor disposed of either before or after the order was made;
• the means the debtor has, had or may have of satisfying the order; and
• whether the debtor intends to obey the order or has any reason for not doing so.

Ideally, the debtor brings documents to the hearing to explain his/her financial situation (i.e., list of assets and liabilities, rough accounting of income and expenses, previous tax returns, and bank statements). If documents are not brought or are insufficient, you can adjourn and obtain a court order for production of documents prior to restarting the hearing.

You can conduct an examination in aid of execution in conjunction with attempts to collect on payment of the debt; but, without permission from the court, only one examination per person can be held each calendar year. You can examine more than the debtor provided the other person may have knowledge of the debtor’s circumstances and all other avenues have been reasonably exhausted to obtain financial information about the debtor. When examining others, only questions about the debtor can be asked; you may not ask about the non-debtor’s assets or ability to pay.

Subpoena to Debtor

A subpoena to debtor hearing differs from an examination in aid of execution in a few key ways:

1. The hearing is before an examiner, usually a registrar or a master;
2. The examiner can make an order for repayment enforceable by the courts, but this order is binding and may involve long-term monthly payments of low amounts; and
3. The areas to question the debtor are more restrictive and can only focus on:

• the income and property of the debtor;
• the debts owed to and by the debtor;
• any disposal of property by the debtor; and
• the means the debtor has, or has had, or in future may have, of satisfying the order.

Regarding the repayment terms that may be ordered, they tend to be advantageous to the debtor. You may receive payment from the debtor, but the examiner will often set reasonable terms tailored to the debtor’s financial circumstances. Further, an examiner’s order supersedes the judgment order so debtors are protected from garnishment and other orders as long as the examiner’s order is not in default.

If a debtor fails to appear for hearing of an examination in aid of execution or subpoena to debtor, the debtor could be found in contempt of court. A debtor could also be found in contempt if he/she fails to pay the judgment holder according to the examiner’s payment plan.