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Flyingifr

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Prepating for a Debtors Exam
« on: November 29, 2011 12:52:39 AM »
Creditors are getting more aggressive in efforts to find debtors' assets and are increasingly using the Debtors' Exam (DE) as a tool to accomplish that. A DE cannot be done until the creditor has a Judgment against you. Armed with the Judgment they can summon you (under Court Order) to come and reveal what your assets and income are. Keep in mind the DE will probably NOT be conducted before an actual Judge - Judges' time is considered too valuable for this type of hearing. The DE will probably be conducted in the lawyer's office with a Court Reporter there to record every word, or they may even simply mail the questions to you and require you to answer them and have the answers notarized under Oath.

Keep in mind the following principles:

1: Lying on the DE is Contempt of Court and a Judge CAN have you put in jail for that. There is another thread taht started with a news article about a person who spent 14 YEARS in jail on a Contempt Citation,so you don't want to lie. Here is the link to that thread: http://www.debtorboards.com/index.php/topic,18512.msg147533/topicseen.html#new

2: You are testifying under Oath as to a State of Facts that exists at the time you testified. What happens in the future, whether it be years after the DE or minutes after the DE is not what you are testifying to. As soon as you leave the DE you are free to move whatever assets you can to wherever you deem them to be safe. Since there was no Judge at the DE, there is no Judge there to order you not to.

The Flyingifr Method already has a section on protecting your assets (appropriately called "Protecting your A$$-ets") so I will not repeat what is there,just refer you to it. It is required reading if a creditor gets a Judgment against you. This essay deals with whet the creditor's attorney will ask you about. There is no uniform list of questions, but the ones found on the Orange County (CA) Small Claims Court web site seem pretty standard:

Quote
Debtorís Examination: Questions to Ask the Individual or Business

You should arrive at your hearing with a list of questions to ask the debtor in attempt to collect your judgment. Be sure to think about the answers to these questions.  This may help you create additional questions

In a debtor's examination, you can ask the debtor:
1. What is your home address?
2. What is your home telephone number?  Cell phone number?
3. Are you married or do you have registered domestic partnership?
      a) If so, what is the first name, maiden name, and last name of your spouse or domestic partner?
4. Do you live in a leased apartment?  A single family home?  A condo?  A mobile home?  Whatís the address?
5. If you live in a single family, home, condo, or mobile home, do you own it?
6. If you live in a leased apartment, who pays the rent?  To whom is it paid?
7. Is it paid by check?  Is your rent/mortgage up to date?
8. Do you have any boarders or subtenants?           
      a) If so, what are their names and how much do they pay you each month?
9. Do you have a vacation home, recreational vehicle, or boat?
10. Whatís your occupation?
11. What's your social security number?  (Note: this is a question that legally does not need to be answered)
12. Are you presently employed?                  
      a) If so, by whom?               
         b) At what address?  Where is the payroll office located?    
      c) What's your work telephone number?       
         d) What's the name of your supervisor?          
      e) What's your gross salary?  What's your net salary?  What payroll deductions are made?
13. Do you receive commissions?             
         a) If so, when are you paid?             
         b) How much is owed to you now?
14. Do you have any part-time employment?            
      a) If so, please explain.
15. Is your spouse or domestic partner employed or in business?      
      a) If so, what's his or her salary?  What is the address of his or her workplace?
16. Do you own any stock or any interest in the business where you work?
       a) If so, please explain.
17. Do you or your spouse or domestic partner have any checking or savings accounts?                        
         a) If so, what is the name of the bank branch, and what are the account numbers and present balances?
18. Do you, your spouse, or domestic partner have a driver's license? For what state? What are the driver's license numbers?
19. How did you get here today?
20. What is the year and make of your car? Do you own it? Is it financed? By whom? What is owed?
21. Do you have any credit cards? Can you get a cash advance on any of those cards?
22. What type of retirement accounts do you have? Are you able to borrow against your retirement account?
23. Do you have life insurance? Is it a whole life policy?
24. Do you have any property, personal effects, cash, or other assets that you've not yet mentioned?               
            a) If so, please explain.
25. Do you understand that as long as the judgment remains unpaid, it accrues interest at the rate of 10% per year? Do you also understand that as long as the judgment remains unpaid, it is probably damaging to your credit rating? Do you understand that if the judgment remains unpaid, I have the right to examine you again in 120 days?

Questions to Ask a Business:
1. What is the name of your business?
2. What is your businessí address?
3. What is your businessí telephone number?
4. How many employees does your business have?
5. How does your business pay its employees?
6. Where is the payroll office located?
7. How many contracts does your business have?
8. Who are those contracts with?
9. Where are your corporate headquarters?
10. How many companies does your corporation own?
11. Where does your business bank?
12. What are your business bank account numbers and present balances?
13. Does your business have any credit cards?
14. Is there any equipment or furniture at your business?
15. Are there any computers at your business?
16. Are there cash registers at your business?
17. Does your corporation own any vehicles?
18. Do you have outstanding account receivables?
19. Does your business own any stocks or interests?
20. Does your business have any investments?
21. What kind of profit is your business making?
22. What is your businessí gross salary? What is your businessí net salary?

Source: http://74.6.117.48/search/srpcache?ei=UTF-8&p=%22debtors+examination+questions%22&fr=yfp-t-374&fp_ip=cn&u=http://cc.bingj.com/cache.aspx?q=%22debtors+examination+questions%22&d=4872275687115190&mkt=en-US&setlang=en-US&w=86b8f4ba,d20e41f&icp=1&.intl=us&sig=GDBm02EVbBDld1jVuMtruw--

If you are curious about what questions wo0uld be standard in your State, US Legal Forms prints the forms many attorneys use. Here is their link: http://www.uslegalforms.com/judgments/  You can purchase your State's form from them for about $8 at the time of this writing.

Here is another list of questions, this time from the San Diego County (CA) Courts. This also lists documents you would be required to bring: http://www.junkfax.org/fax/action/debtorExamSubpoenaAndQuestions.pdf

Once again - what is truth at the time of the DE can be history ten minutes later. Unless a Judge orders you not to move any assets, you are free to do so.

STRATEGY: When you are at the DE and the attorney has called the DE to order and the Court reporter is banging away on his machine, work into the testimony the following statement: "I see it is now 10AM on the 25th of October (or whatever the date and time are). As the DE is ending, work into the record a similar Statement, "I see we are ending at 1:15PMon the 25th of October". When you withdraw your funds from revealed bank accounts, the withdrawal slip will most likely show the TIME of the withdrawal, which will be AFTER the DE ended, so no claim of Perjury can be sustained. It was the truth when you so testified and you can prove it from the Transcript and the bank withdrawal slip.
« Last Edit: November 29, 2011 01:02:37 AM by Flyingifr »
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

kevinmanheim

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Re: Prepating for a Debtors Exam
« Reply #1 on: November 29, 2011 01:13:31 AM »
21. Do you have any credit cards? Can you get a cash advance on any of those cards?
 :vbrofl:

deepkimchee

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Re: Prepating for a Debtors Exam
« Reply #2 on: November 29, 2011 01:31:33 AM »
Is there any known caselaw about getting out of a DE for fear of incriminating oneself?
I refuse to let a piece of paper intimidate me

My statements are educated/non-educated guesses, not legal advice

Shadowbuddha

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Re: Prepating for a Debtors Exam
« Reply #3 on: November 29, 2011 01:35:13 AM »
21. Do you have any credit cards? Can you get a cash advance on any of those cards?
 :vbrofl:

Nothing like taking a loan with a 20-30% interest rate to pay off a debt with a 4-12% interest rate.
"I was THIS CLOSE to being complete!" - Fight Club

I am not your attorney.  Nothing I say should be construed as legal advice nor does it create an attorney client relationship.

Flyingifr

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Re: Prepating for a Debtors Exam
« Reply #4 on: November 29, 2011 07:30:08 AM »
Is there any known caselaw about getting out of a DE for fear of incriminating oneself?

Since the attorney asking the questions is not a police officer, Miranda rights are inapplicable and I am having a hard time figuring out how one can incriminate one's self in a Debtor's Exam.

Question: Are you presently employed?
Answer: I plead the 5th Amendment protection against self incrimination.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

Flyingifr

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Re: Prepating for a Debtors Exam
« Reply #5 on: November 29, 2011 07:38:50 AM »
Quote
22. What type of retirement accounts do you have? Are you able to borrow against your retirement account?
23. Do you have life insurance? Is it a whole life policy?

Answer: I have a half a million dollars in cash value in my life insurance and three million in my IRA's and 401K's and you can't touch a penny of it.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

cbarnett97

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Re: Prepating for a Debtors Exam
« Reply #6 on: November 29, 2011 07:45:16 AM »
Since the attorney asking the questions is not a police officer, Miranda rights are inapplicable and I am having a hard time figuring out how one can incriminate one's self in a Debtor's Exam.

Question: Are you presently employed?
Answer: I plead the 5th Amendment protection against self incrimination.
They were also under a criminal investigation but the 5th was used here:
http://www.aterwynneblog.com/oregon_business_litigatio/2011/02/refusal-to-testify-at-debtor-exam-shouldnt-be-punished-as-contempt-oregon-court-of-appeals-holds.html

And a case out of Kansas where the state appeals court found that the 5th can not be used and the Defendant must produce all records asked:
http://www.ksb.uscourts.gov/opinions/OpinFiles/2533RYSER082100.pdf

So from what I have read it looks like that if you just have a judgement against you you are not allowed to plead the 5th but if you are going to be criminally charged over the subject that you lost your civil case over, you can feel free to plead the 5th

deepkimchee

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Re: Prepating for a Debtors Exam
« Reply #7 on: November 29, 2011 08:08:00 AM »
Quote
Is there any known caselaw about getting out of a DE for fear of incriminating oneself?

I was thinking of a case where someone might have an interest in a property with an unconcerned party, or someone that honestly conveyed something or transferred something without intent to hinder. Or someone that stands to inherit  a large sum of money in the near future.

I refuse to let a piece of paper intimidate me

My statements are educated/non-educated guesses, not legal advice

Flyingifr

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Re: Prepating for a Debtors Exam
« Reply #8 on: November 29, 2011 11:02:00 AM »
I was thinking of a case where someone might have an interest in a property with an unconcerned party, or someone that honestly conveyed something or transferred something without intent to hinder. Or someone that stands to inherit  a large sum of money in the near future.

None of these are in any way criminal. Having an interest in a  property with someone else is legal, and if the parties are wise the partnership Agreement will have a "poison pill" provision giving all partners veto power over any change in partners (effectively making the debtor's interest unmarketable). Conveying a property for value means the property is no longer an asset and teh question will be "what happened to the money?" Answer: "I lost it in Vegas trying to win enough to pay this debt".

Standing to inherit money is a potential asset in the future - not a current asset that can be attached. After all, rich aunt Tillie can be uncooperative to your creditors and simply outlive you and refuse to die, or she can get angry with you and cut her out of her will. In either case you inherit nothing.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

Gimpy

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Re: Prepating for a Debtors Exam
« Reply #9 on: November 29, 2011 01:21:48 PM »
11. What's your social security number?  (Note: this is a question that legally does not need to be answered)

I've got a JDB attorney repeatedly asking for this in discovery.

What's the citation to use to not give the SSN?

NotBonJovi

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Re: Prepating for a Debtors Exam
« Reply #10 on: November 29, 2011 02:11:35 PM »
I refused to put my SSN on a Information Subpeona (aka Debtor Exam) - because I knew the JDB already had it. The JDB attorney decided to give me hard time about filling the Subpeona in its entirety, and I just told him, "It's info you already have. Why do I need to fill it out?"

His answer was to take me before a judge, and have the judge tell me to fill it in or she would grant the attorney's request for a warrant for my arrest for contempt.

Where does this "you don't legally have to supply a SSN" come from?
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Tony733

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Re: Prepating for a Debtors Exam
« Reply #11 on: November 29, 2011 05:20:34 PM »
I had a Debtors Exam request from a judgement over a year ago.

In my state (WA) Plaintiff can request a Debtors Exam every 4 months. I could not see that kind of stress and hassle for the next 10 years.

Without any money to settle my only option was BK. I filed 2 days before the Exam and got it "stayed". I was glad to appear on the day to see their attorney trying to explain to the judge why the Exam had not been cancelled.

A small victory!

deepkimchee

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Re: Prepating for a Debtors Exam
« Reply #12 on: November 29, 2011 05:37:19 PM »
I just found this website junkfax.org, then click on "collection tips".  This site was very enlightening.  It gives the collector tips on their tricks of the trade on debt collection.
I refuse to let a piece of paper intimidate me

My statements are educated/non-educated guesses, not legal advice

Flyingifr

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Re: Prepating for a Debtors Exam
« Reply #13 on: November 29, 2011 11:44:18 PM »
I refused to put my SSN on a Information Subpeona (aka Debtor Exam) - because I knew the JDB already had it. The JDB attorney decided to give me hard time about filling the Subpeona in its entirety, and I just told him, "It's info you already have. Why do I need to fill it out?"

His answer was to take me before a judge, and have the judge tell me to fill it in or she would grant the attorney's request for a warrant for my arrest for contempt.

Where does this "you don't legally have to supply a SSN" come from?

That statement was a part of the document taken from the Orange County (CA) Small Claims Court web site. It is their document that it is in, not mine.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

living_free

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Re: Prepating for a Debtors Exam
« Reply #14 on: November 30, 2011 01:32:50 AM »
Regarding the "demand" for your SSN - I would think you could claim -

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

            CHAPTER 7 - SOCIAL SECURITY

            SUBCHAPTER II - FEDERAL OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE BENEFITS

            Sec. 408. Penalties

            (a) In general
            Whoever -...

                * (8) discloses, uses, or compels the disclosure of the social security number of any person in violation of the laws of the United States; shall be guilty of a felony and upon conviction thereof shall be fined under title 18 or imprisoned for not more than five years, or both.

After reading some of the questions on the debtors exam I see where the attorneys might ask about your "spouse" or "domestic" partner.  If you are in a common-law marriage residing in a state that doesn't recognize common-law marriage, could you refuse to answer questions about your "partner" citing privacy act concerns? 

I also read the word "registered" domestic partner.  If you were merely living in the same house with someone, would that situation be considered a "registered domestic partner"?

I am not sure how they could compel information from or about another person in the household without violating their privacy rights.


 

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