Debtor Exams And The 5th Amendment

Although the majority of debtor exams take place in hallways or areas away from the judge, occasionally a debtor will try to claim "their Fifth Amendment right", and state they can't answer your question(s), because answering your question might become self-incrimination.



My articles are my opinions and are not, a legal opinion. I am the judgment broker, and not an attorney. If you need legal advice or a strategy to use, please retain an attorney.



Usually, debtor examinations are designed to enjoy the "widest scope of inquiry in the search for available assets to repay a judgment". Generally, "Leave no stone unturned" will apply, and creditors are much less susceptible to relevance objections when they are able to demonstrate the link between the question and the debtor's finances.



The 5th Amendment, finalized in 1791, has a provision that no person may be compelled to testify as a witness against themselves in any criminal related case. Fifth Amendment protection requests are much more commonly used inside criminal courtrooms, however sometimes they are also used in civil courtrooms.



Unless a prospect of a criminal-related case arises (with the police or the district attorney's office involved), within a court; creditors are most often allowed to ask almost whatever they want. Most of the time, the debtor may only successfully claim their privilege against incriminating themselves if there's an imminent threat of prosecution for some crime. The 5th Amendment only defends against self-incrimination, and is not the right not to answer. Courts can compel debtors to answer questions in situations where a judgment debtor is attempting to block the creditor.



With a criminal matter, a defendant or their attorney may ask for a recess, and visit the prosecutor's office, to get their Fifth Amendment prosecution waiver, to decrease the likelihood of self-incrimination.



Within civil courts, if your debtor claims the Fifth Amendment as the reason not to answer your question(s) at an examination, the debtor needs to next speak to the judge. As the creditor, you may then politely ask the judge to review the question(s), and get the debtor tell the court the reason your questions could be violating their Fifth Amendment rights in this civil debtor exam. Then, the judge will either:



A) Remind your debtor it is a civil matter, and not a criminal matter, and the judgment debtor cannot assert their 5th Amendment rights unless they allege that disclosing the information could cause some criminal charge against them.



B) Allow your debtor's Fifth amendment protection request only for a specific question. Whether a certain Fifth Amendment claim will be denied or approved, cannot be predicted in advance. It is always decided on a case-by-case basis, depending on the specific circumstances and facts on each question.



A 5th Amendment protection claim can be presented in any case; criminal or civil, judicial or administrative, investigatory or adjudicatory. A judgment debtor cannot successfully make a "blanket assertion" of their Fifth Amendment rights. But, on individual questions, Fifth Amendment claims are regularly upheld, even in post-judgment matters.



Even if the judgment debtor fails to assert their 5th Amendment rights, the debtor's refusal to answer your question will rarely result in a contempt of court ruling. Even if the reason behind a specific course of action is completely without any merit, somebody's good faith assertion of its meritorious nature, even if not successful, rarely will be a red flag of contempt. However, a good judge may get angry at judgment debtors trying to take unfair advantage of the Fifth Amendment's intended purpose, only to block their judgment creditor.



Even when the judge orders your judgment debtor to answer a question after they've claimed a 5th Amendment right, your judgment debtor may later appeal that decision; and delay the proceedings for a long time, and that makes it likely the judgment will settle for a serious discount. If the debtor's 5th Amendment-related claim is granted, the judgment creditor could perhaps then take this matter up later at some appeal-type of proceeding, having to spend additional time and money.



In Troy versus Superior Court (1986) 186 Cal. App. 3d 1006, the Court of Appeals stated that in order for a judgment debtor to claim the 5th in a judgment debtor exam, a "real danger" must exist, not merely speculation. This case was followed by the case of Hooser vs Superior Court (2000) 84 Cal App 4th 997.



A 5th Amendment claim is harder to win in family court support matters, see Marriage of Sachs, 95 Cal. App. 4th 1144 (Cal. Ct. App. 2002). A review of this case was denied by a Supreme Court. And, in California, as defined in Code of Civil Procedure 708.130, the spousal protection doesn't apply in an examination proceeding.



Many judges are fairly liberal in granting 5th Amendment claims when they can. Attorneys have successfully argued in bankruptcy courtrooms, on behalf of judgment debtor clients with overseas bank accounts; to stop certain individual questions when their answers could be used to indict a judgment debtor for fraud on the bankruptcy court.



Consider this typical debtor examination question: "Do you have any overseas bank accounts?" The judgment debtor may have a offshore account that the debtor did not mention to the IRS. If they answer "Yes", then this could open the debtor to criminal prosecution for tax fraud; so the debtor might answer, "I cannot answer that question under my 5th Amendment rights". Although it is not fair to creditors, most judges would not compel the debtor to answer the question.





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Mark Shapiro of http://www.JudgmentBuy.com - The easiest and fastest free way to find the right expert to buy or recover your judgment.





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