Practical Considerations
I will tell you first and foremost I have mixed feelings about depositions in aid of execution. I have found in my years of taking these depositions that all but the most honest and scrupulous people will have zero issue with lying straight to your face. That is not the case in most depositions, but when faced with the possible deprivation of their property, the deponent in these depositions will flat out perjure themselves with no hesitation.
One such deposition I took, the debtor would not tell me who owned the house she lived in, even though: 1) I already knew that information and 2) it is a matter of public record. It was an exhausting deposition. I endeavored to make it as painful as possible on the deponent. I was able to create a good record, just in case I needed to show the court how deceptive and uncooperative the deponent was. Why take the deposition then? The deposition in aid can be necessary perhaps because you have exhausted all the fact finding you have made through third parties. It can also be valuable as a coercive tool for payment.
Get as Much Information as Possible from Third Parties
Due to the high level of self-interest, the deposition in aid is a somewhat unique creature. As a general rule, I do not like taking these depositions unless I have subpoenaed or questioned third parties for information first. Examples of third parties to subpoena before your deposition in aid are: 1) financial institutions the debtor might do business with; 2) mortgagees or landlords; and 3) employers or business associates. The list really is limitless. As discussed in our previous post, information is the most valuable tool in collecting a judgment.
It is important that the information you receive is objective fact. This is so when you take the deposition of the debtor, you can have an idea if the deponent is not being truthful, or forthcoming. By having a general understanding of the assets, you can manage your expectations at the deposition. Also, if worst case scenario, you must go back to the court for something said (or not said) by the deponent you have proof of the statement’s veracity. It is good practice to have the debtor produce any documents (via request for production or subpoena duces tecum) prior to the deposition. This is so you have more information prior for preparation. In my experience however, the debtors rarely produce this information (thus necessitating the need to go to third parties FIRST).
Show the Debtor that Creditor is here to Stay
Another compelling reason to schedule the deposition of the debtor is to simply show the debtor that the creditor is serious. The reason most judgments go uncollected is because most judgment creditors do not have the desire or the counsel skilled or dedicated enough to do it. Judgment Debtors in turn, eventually forget about their obligation to pay. DO NOT LET THEM FORGET! In closing, a deposition in aid of execution can be a powerful tool in collecting a judgment. Contact Andre Law Firm, if you have any questions about this tool and the collection process.