Finding Assets- Disclosure Hearings
Rule 69, C.R.C.P. provides for Execution and Proceedings Subsequent to Judgment. The Rule allows a creditor to either serve written interrogatories on the judgment debtor, who must be personally served under Rule 45, CR.C.P., or serve a subpoena on the judgment debtor to appear in Court to answer questions concerning property. You can serve a subpoena duces tecum and require the judgment debtor to bring documents with him, so you can verify the answers. County Court allows Interrogatories to be served under Rule 369, C.R.C.C.P., but does not provide for subpoenas.
There is a dispute as to whether Rule 45 requires a judgment debtor to be served a witness fee. Many attorneys serve a witness fee in accordance with the requirements of Rule 45. This office does not serve a witness fee on a judgment debtor who is personally named. Judge King in Douglas County agreed with this and said that Rule 69 is a rule that affects proceedings occuring post-judgment. He ruled that it doesn’t make sense to give a judgment debtor money to appear in court and answer questions about his/her own assets. So at least one judge doesn’t require the witness fee. There may be a divergence of opinions on this issue.
At the Rule 69 hearing, you can ask questions of the debtor regarding his/her/its assets. The debtor is required to answer truthfully, under oath. The judgment creditor is allowed to bring a court reporter to the Rule 69 hearing. A deposition of any person, including the judgment debtor, may be taken upon order of the Court under Rule 69 (i). Rule 69 (f) also allows for the creditor to subpoena a debtor of the judgment debtor. The debtor must owe the judgment debtor at least $500.00. The Court is allowed to make reasonable orders for mileage and expenses.
If the debtor fails to answer the interrogatories within 21 days after service of the interrogatories, the creditor can file a motion with the Court requesting an order to have the judgment debtor appear in court at a specified time to show cause why he should not be held in contempt for failure answer the interrogatories. It is generally better to prepare this Motion as a contempt citation and serve the citation at least 21 days prior to the hearing. If the judgment debtor fails to appear for this show cause hearing, the Court can issue a bench warrant for the debtor’s arrest.
If the debtor fails to appear on the date specified on the Rule 69 subpoena, the Court will issue a bench warrant for his or her arrest. This also applies to corporate officers or registered agents who fail to appear.
Submitted by Terry Ehrlich
