What are the rules governing the conduct of a debtors exam in the state of Ohio? |
Request for Question Clarification by
justaskscott-ga
on
12 May 2005 18:50 PDT
Do you need to know the specific permissible questions in an Ohio
debtors exam, the rules governing the conduct of the exam, or both?
Do you already have the statutes on Ohio debtors exams, or should
those statutes be part of the answer?
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Clarification of Question by
hwellspi-ga
on
13 May 2005 06:18 PDT
I am conducting a debtors exam for the first time in Ohio. I need to
know the rules governing the process. I am unaware of a statute
defining the permissible questions and/or the process so if one exists
please include it. There may simply be a rule that defines the
parameters for designing questions. Simply put, I want to make sure I
don't get into trouble for asking an inapproprite question.
Questioners have a lot of latitude and I do not want to cross any
legal lines. Thank you very much.
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Request for Question Clarification by
pafalafa-ga
on
13 May 2005 06:49 PDT
What county/city will the exam be in?
I believe the exam protocols tend to vary between local jurisdictions
-- do you have a specific reason to suppose there are statewide rules
in effect?
pafalafa-ga
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Clarification of Question by
hwellspi-ga
on
14 May 2005 06:14 PDT
The exams will be held in Lucas and Fulton County Ohio. I have no
reason to believe that there is a statewide rule. In fact, I assume
there is some federal control owing to the Fair Debt Collection Act
and GLB etc.
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Request for Question Clarification by
pafalafa-ga
on
14 May 2005 09:16 PDT
hwellspi-ga,
From what I'm finding thus far, here's what things look like:
--the debtor's exam is heavily weighted in your favor...you can pretty
much ask what you like as long it has some "reasonable" relation to
the debtor's assets and finances.
--the form served to the debtor for their appearance at the exam often
includes check-offs for lists of documents to bring to the exam, such
as titles to cars or homes. You may want to review the forms used in
the two counties you mentioned to see what is included in this regard.
--there does not appear to be a set of formal guidelines -- federal,
state or local -- as what can or cannot be asked at an exam.
--However, there generally is a court supervisor or baliff nearby
during an exam (presuming it's taking place at the courthouse). They
may swear in the debtor, but do not generally attend the exam itself.
But in the case of any disagreement over a question -- or evasivness
in answering on the part of the debtor -- the supervisor usually can
be called in to settle any disagreements.
All of the above are based on generic descriptions of the process, and
are not specific to Ohio. I found only one bit of information that is
specifically relevant to Ohio, and in particular, to Hamilton County
-- note the list of questions to be included that are cited here:
http://www.courtclerk.org/small_claims_guide2.htm
Hamilton County Courthouse
-----
Judgment Debtor Exams
Personal Exam
A Judgment Exam is a procedure whereby the debtor is summoned to
appear in court to answer questions about their personal assets.
The form, Order for Appearance and Examination of Judgment Debtor, is
available in the Clerk?s Office.
The cost for filing this form is $18 plus service. At the time of
filing, the clerk will assign a court date. On the day of the
scheduled exam, check the judgment debtor-hearing docket outside the
courtroom to see if the debtor has been successfully served. If
service of the judgment debtor exam was attempted by certified mail
and the mail was returned unclaimed or refused, you may request
service by regular mail ($2.00).
If the debtor is served but fails to appear, you may ask the Court to
issue a citation or attachment* and force their appearance.
*An attachment is a ?body attachment? or a citation issued to the
judgment debtor, demanding their appearance in court. The court issues
it to the debtor when the debtor fails to appear before the Court,
after being personally served by a bailiff, with the Judgment Debtor
Exam.
When the debtor appears, you will have the right to ask any questions
needed to determine where you might find enough of the debtor?s assets
to pay your judgment. You should have your questions prepared in
advance to determine the following:
Place of employment and identity of employer
Take-home pay amount
Bank accounts and amounts in them
Location of any land or houses owned
Make, model, year, license plate number, title, number of cars owned,
and any amount owed on the vehicles
Address of any rental property owned, and identity of the tenants
The debtor will be under oath, but not on a witness stand. You will be
seated at a table and will simply ask your questions and write down
the answers.
If you believe the debtor is lying or the debtor refuses to answer
your questions, tell the Bailiff, and the questions will then be asked
in the Magistrate?s presence.
Once you have your information, proceed to use the various collection
approaches outlined on the following pages.
-----
I can point you to a few more sources of information available online,
but again, they are general descriptions of the process, are not
specific to Ohio, and generally state that any questions that are
"reasonable" are fair game.
Let me know if I should post information about these sources as an
answer to your question.
pafalafa-ga
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Request for Question Clarification by
markj-ga
on
14 May 2005 11:26 PDT
hwellspi --
In my comment below, I suggested that the written debtor disclosure
forms that we know are in use in Maumee Municipal Court (Lucas County)
might provide a good template for you to assess the appropriateness of
questions to be answered under oath in a subsequent oral "debtor
examination."
After some further research, I have more confidence that this
suggestion might be helpful to you. As you may know, the Ohio Revised
Code has a chapter on Small Claims proceedings (Ohio Revised Code, Ch.
1925). Interestingly, this chapter does not discuss oral debtor
examinations, but it does specifically authorize written disclosure
forms as the primary tool for eliciting basic financial information
from judgment debtors. Here is the most relevant language, from
Section 1925.13(B):
"§ 1925.13. Collection and enforcement of judgments.
. . . . .
"(B) If, within thirty days after judgment, the judgment is not
satisfied and the parties have not otherwise agreed, the court, upon
the request of the judgment creditor, shall order the judgment debtor
to file, on a form prepared by the court, a list of the judgment
debtor's assets, liabilities, and personal earnings. The form shall
contain a notice that failure to complete the form and return it to
the court within one week after receipt may result in a citation for
contempt of court. Any party who, with notice of the possible contempt
citation, willfully fails to comply with the order of the court may be
cited for contempt of court as provided in Chapter 2705. of the
Revised Code."
Anderson Publishing: Ohio Revised Code: Section 1925.13
http://onlinedocs.andersonpublishing.com/oh/lpExt.dll?f=templates&fn=main-h.htm&cp=PORC
Since online Ohio sources (including the Maumee citation I provided in
my earlier comment) specifically identify the oral debtor's exam as a
tool to correct an inadequate response to a statutorily authorized
written disclosure form, the questions that have been used in such a
form in the jurisdictions that interest you should give you the
guidance you want.
Let me know if you think this information answers your question or at
least seems to be on the right track. I have so far been unable to
find an online copy of a written disclosure form in use in Lucas or
Fulton County, but it seems very likely that the clerks of the courts
in your jurisdictions could provide you with them.
markj-ga
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Clarification of Question by
hwellspi-ga
on
16 May 2005 07:25 PDT
Please post the additional information as well. Thank you ...HSW
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