Top 10 Considerations When Taking a Deposition in Aid of Execution

Once a judgment is entered, there are numerous methods that can be utilized to collect on the judgment, including garnishment and levying on real and personal property. But how do you know what is out there to levy against or garnish? The best method for locating assets is often times the simplest – just ask.

Rule 1.560, Florida Rules of Civil Procedure, allows for the use of a deposition as a proper discovery tool post judgment. Utilizing a deposition in aid of execution to ascertain the necessary information to garnish wages or levy on real property may seem simple. However, numerous considerations must be taken into account before making the decision to depose a judgment debtor. Below is a list of items to consider before, during and after taking a deposition in aid of execution.

1. Garnish or levy on known property before taking a deposition in aid of execution. A smart debtor who knows the ramifications of a judgment will start moving assets around as soon as that judgment is entered. It is imperative that you exhaust all garnishment efforts before the debtor has a chance to move the money to another account. Also, if they have unencumbered property that is known, go ahead and get that before it disappears. If the debtor has other judgments, those creditors may be taking the same action as you in an attempt to get paid. Analyzing your priority position when levying on real property is essential; but do not let it stop you from executing on items on which you may see a return. The last thing you want to do is let money and property go while waiting to ask questions.

2. Determine whether a deposition in aid of execution will get you where you want to go. Sometimes a deposition may not be the best first course of action. Say you have a debtor who has been responsive and appears to be uncollectable. Add in a small judgment balance and the cost of a deposition in aid of execution and it may outweigh its benefits. You may want to try written discovery before spending the time and money to depose a judgment debtor if odds are that debtor will provide you with the information you need in writing. Further, if the cost of taking the deposition is greater than the judgment balance, such as in the case of a small claims judgment, and the debtor appears to be uncollectable, make sure to discuss with your client whether the risk is worth the possible reward. There are many ways to gather information and a deposition in aid of execution may not always be the first, or best, choice.

3. Do not forget to schedule a court reporter. I would like to think this is a given, but you never know. It is important that the information gleaned from a deposition in aid of execution is properly recorded for use at a later time. The debtor may reveal assets that upon execution have mysteriously disappeared and the debtor denies every having owned the item. Or, information may be obtained that leads you to a third party holding assets against whom you can proceed supplementary to satisfy the judgment balance. There are a few items you should not record, but I will get into that information later. As a helpful hint, be sure to confirm your court reporter a day or two in advance as schedules change and things happen. You do not want to end up waiting for a replacement while your debtor starts to stew over having to appear and answer your questions for an entire afternoon or day.

4. Thoroughly research the deponent. The most effective deposition in aid of execution is based on a line of questioning specifically tailored to the deponent. It is critical that you thoroughly research the judgment debtor’s assets and liabilities before heading into the deposition. The first place to start is with your client. No one you will have access to will know that debtor better than your client, and they may have a great deal of useful knowledge that could lead you down a path to collection. Ask about the relationship between the parties, anything they can remember about assets they have seen or heard about, how the debtor lives and who else may have useful information. Your client is an excellent resource for preliminary information. You can also utilize internet searches to lead you to real property, vehicles, UCC liens and other possible assets. Do not forget to research liabilities as well, which can limit your potential recovery if there is a line of other judgment creditors ahead of you.

5. Prepare a list of questions beforehand, but do not forget to follow a good lead. Always go into a deposition in aid of execution with a detailed list of questions to ask the judgment debtor. This list should include not only the standard line of questioning, such as income and property owned, but specifically set forth each piece of information you have gained in your prior research. If it takes four hours to get through everything, then take four hours. Do not limit your questions based on time and end up not getting to everything. Also, it is very important to listen to the answers you are getting and ask follow up questions. For example, an individual judgment debtor states that they own a boat which was not previously found on any assets searches. Follow that response up with questions to find out why you did not previously locate that information, such as whether the boat is jointly titled, no longer registered or has been transferred to a third party. Do not just take the answer at face value and move on; gathering additional information could lead you to another item for execution or surrender.

6. Request that all documents be provided to you prior to the deposition. It most cases, a deposition in aid of execution will be duces tecum, or require the presentation of documents along with the questioning. These items should be provided to you prior to the deposition so that you have time to review the documents and add to your list of questions. If you are given a large stack of documents the morning of the deposition, it is likely that one of two things will happen: either you will not look at any documents prior to or during the deposition and miss important information OR you will spend your entire day reading the documents instead of questioning the judgment debtor. Either action is unacceptable when it comes to conducting a thorough deposition.

7. Understand what should be on the record and what to keep off the record. Certain pieces of information should be kept off the record in order to protect you should the testimony be used in court at a later time. It is good practice to keep confidential information, such as social security numbers, off the record. If the transcript from the deposition is later used in court, you do not want to accidentally file the information and then have to deal with the consequences of disseminating confidential information to the public. One important item that you never want to put on the record is settlement and payment discussions. The last thing you want is a debtor coming back later and attempting to enforce something you offered at a deposition. Since settling the balance for a lesser amount or taking payments is a courtesy to debtors, you do not want that information in writing to be used against you in the future. The best course of action is to get all the information you need and then at the very end of the deposition go off the record and start talking payment.

8. Tailor your tone and line of questioning to the subject. Each person you depose will be different and it can be very important to the information gathering attorney to tailor their conduct to facilitate an easy exchange. Some deponents will be sophisticated individuals who will understand exactly where you are going with your questions. In that instance, you must be firm and demanding in order to get all the answers you need. Other times, the judgment debtor may be an individual who has never participated in the legal process and is extremely nervous. A calmer and more inviting attitude will put the deponent at ease and create an air of trust between the parties. Knowing how to conduct your line of questioning based on the person giving the answers will greatly assist in your endeavor to discover collection information.

9. Take organized notes and get copies of any items brought to the deposition. While conducting the deposition in aid of execution, take thorough notes of the information provided. Even though a transcript will be available from the court reporter, it may not accurately reflect the mental impressions you have during the deposition. It is very important that your own notes reflect not only the information you receive, but what you may plan on doing with that information. Further, since furious note-taking often leads to a disorganized jumble of words, create a system for taking notes that will keep the information in an easy-to-follow format. Do not forget to make copies of any additional items presented at the deposition in aid of execution. Sometimes debtors will forget to provide certain items ahead of time and so they simply bring the originals to the deposition. Make sure you get copies of everything before the deponent leaves so the record is complete.

10. Review and execute on property disclosed ASAP. Once the deposition has been completed, it is imperative that you review and act upon any information gained as quickly as possible. Again, the sophisticated debtor will start moving assets around the moment they get wind that you are coming for them and other creditors may be zeroing in on some of those items. The more quickly you act, the greater the chances of recovery. Do not miss out on a great opportunity to get money for your client by waiting around. The early bird gets the worm right!