Subpoenas And Consumer Notices

In judgment discovery situations, to attempt to find your debtor’s available assets; in most states you can calendar a debtor exam at the court, and subpoena documents from third-parties. When a judgment debtor is a person, in some states; their personal info is known as a consumer record, if the info is requested using your served subpoena on their 3rd-party bank, employer, school, utility company, attorney, accountant, health care provider, etc.

This article is my opinion and is not, legal advice. I am the judgment broker, and not an attorney. When you want legal advice or a strategy to use, you should retain an attorney.

In certain states, for example in California and perhaps Indiana; before a 3rd-party may share any of your debtor’s personal information, they must see proof that the judgment debtor was served a «notice to consumer», along with the subpoena package served upon them. While Federal courts, and most states, do not currently mandate notices to the consumer before serving a subpoena on third-party witnesses; this might change in the future, to increase the use of consumer notices.

Within California, laws covering consumer notices (e.g., CCP 1958.3 and CCP 1985.6), are sometimes debtor-friendly as those laws let a person or company/partnership having less than 5 people; get additional advance notice that the judgment creditor is asking questions concurring their finances, perhaps providing them additional time to hide or transfer their assets. Naturally, if you already know where the judgment debtor banks or works, one can skip tipping them off, and just start a garnishment procedure with your Sheriff.

Consumer notices might slow creditors down a bit. In places that require them, before third-parties can share any kind of private judgment debtor info, a notice to the consumer gets first served on your judgment debtor. The law in California says you must wait 5 days when the consumer notice (SUBP-025, which is a Judicial Council Form) got personally served, and 10 days if the service got done by mail. After that waiting period passes, you add the consumer notice and proof of its service, with the subpoena package that is served on the third-party witness. In California, a witness are entitled to witness fees as per California Evidence Code 1563; so include a check made out to the third-party with the subpoena package which you give to the registered process server.

In jurisdictions that mandate consumer notices, most allow 3rd-parties 20 days to provide the specific information identified within the subpoena served upon them, that includes your proof of service of the consumer notice. Although subpoenas may get first class mailed to third-party witnesses (within California see Code of Civil Procedure 2020.410), serving the witness using the first class mail gives them 5 additional days to produce records. Also, when subpoenas aren’t personally served, there is no recourse when somebody ignores a subpoena that was mailed to them.

When your personally served subpoena gets ignored by a third-party, or you get nothing except for their written complaint you will probably need to sue the witness to get the information. In California, this is either covered by Code of Civil Procedure 1992, or perhaps you will have to serve your motion in court to compel (force) the witness to show up and produce those documents that were subpoenaed.

Federal judgments in Federal courts (and all bankruptcy courts, are where subpoenas are defined by FRCP 45 and FRCP 9016), there seems to be no laws mandating that a notice to consumer to get sent. Despite this, in a few Federal court judgment recovery cases in California, a debtor’s attorney has argued that CCP 1958.3 and the need to serve the consumer notice first; and more than once, a Federal court judge in California has decided in favor of with that requirement, and that does not make much sense to me, because State laws are usually outranked by Federal laws.

If one owns a Federal judgment, or in the states which have no subpoena-related notice to consumer laws, which also means there is isn’t any time constraints if you decide to include this kind of a notice anyway. Even when not required by law, it share this site may occasionally end of being a good idea to include a consumer notice disclaimer with your judgment debtor exam subpoena package served on the debtor.