Interrogatories in aid of judgment or execution, notice of taking deposition of judgment debtor, and a checklist of suggested debtor interrogation questions.

By Lawrence R. Klemin

Excerpted from Small-Case Litigation Forms

Collection law can vary considerably from state to state. Consequently, reference should be made to the law of the state in which the collection is being made, and the forms in Chapter 5 should be revised accordingly. In addition, federal law also applies to the collection of debts for clients and the federal Fair Debt Collection Practices Act in 15 U.S.C. 1692 et seq. should also be reviewed. This chapter sets up a basic system in a law office that can be used to handle routine collections by lawyers who do not specialize in collections.

In many states, the Sheriff is the person charged with enforcing judgments. An execution of the judgment is issued by the clerk of the court directing the Sheriff to satisfy the judgment out of the assets of the debtor. However, the Sheriff will usually not make much of an effort to locate assets that a debtor has in order to satisfy the judgment, and the lawyer for the creditor must tell the Sheriff where to look for assets.

Form 5.160 contains interrogatories that can be sent to a debtor either before or after the entry of judgment in order to locate assets for the Sheriff to levy upon. Just because a debtor is in default in a collection lawsuit does not mean the debtor is not subject to discovery. Form 5.170 is a form for a notice of deposition of the debtor and tells the debtor what to bring to the deposition. An oral deposition can be used to interrogate the debtor in order to find assets and can also be used in addition to or instead of the written interrogatories.

The debtor can be compelled to answer interrogatories or questions at an oral deposition following the provisions of the Rules of Civil Procedure for a motion to compel discovery. Some states also permit the debtor to be brought into court to answer interrogatories in person if they fail to answer the written interrogatories or refuse to answer questions at a deposition. Although the judges do not like this process, they have to follow the law just like everyone else. Form 5.180 is a checklist that can be followed to interrogate the debtor, whether at a deposition or in a post-judgment discovery proceeding in court.

Obviously, the extent to which these post-judgment proceedings are used is dependent upon the amount of the debt and the likelihood of locating nonexempt assets to levy upon to satisfy the debt. This procedure also assumes that the debt is unsecured by identifiable collateral. The first rule of extending credit is for the creditor to know his debtor. Consequently, the creditor may have information on the assets of the debtor that can be given to the Sheriff as an aid for collection. The creditor may also have nonspecific information about a debtor’s possible assets, but not enough to tell the Sheriff where to look. Therefore, the lawyer, working with the creditor, can tailor the forms to require the debtor to provide specific information about assets.

FORM 5.160      INTERROGATORIES IN AID OF JUDGMENT OR EXECUTION

**(Legal Assistant checks off items on this checklist when completed.)

_____1. Make photocopy of this checklist and place it in trial notebook behind tab for “Plan.”

_____2. If attorney requests you: do initial interview of client and complete “Your Preparation for Our Representation” questionnaire. Place in trial notebook (TNB) behind Witness Sheet for client.

_____3. On first contact with client, ask if client has pictures of damaged property (e.g., car in car accident), or of accident site, or of personal injuries. Obtain any pictures for file. If client has no pictures, then photograph accident site; vehicle if vehicle is still damaged; and injuries if personal injuries still show.

_____4. Fill out summary information sheet, and place it in trial notebook behind tab for “Summary.” Make Witness Sheet for each person that is a possible witness. Put the Witness Sheet behind tab for “Their Witnesses” – unless it is obvious they are “Our Witness.”

_____5. Put pink “Civil Trial Notebook Checklist” in trial notebook behind tab for “Plan.” [Do items, or ask attorney which items on “Civil Trial Notebook Checklist” he wants you to do. (Check off items on Civil Trial Notebook Checklist when completed.)] Any additional items you can think of to do, put on a plain pink sheet and put behind “Plan” tab in the Trial Notebook.

_____6. Place client’s name, address and phone numbers on Rolodex.

_____7. Put client’s birthday on tickle system. (Send client birthday card for four years.)

_____8. If property of client was damaged (e.g., car in car accident or house in fire case), ask client to get us repair estimates and any final repair bill.

_____9. If car of client was damaged, obtain length of time our car was not able to be used while repairs were accomplished. Place information on remarks section of blue auto accident basic information sheet.

_____10. Ask attorney what medical records you should get. Then get them.

_____11. Put any witness statements in trial notebook behind Witness Sheet for that witness.

_____12. If this is an auto accident case, prepare a Form 2.440 request to get copy of police officer’s report. When it is received, place in trial notebook behind Witness Sheet for the police officer.

_____13. As soon as police officer’s report is obtained, then interview police officer, by phone or personally. (See separate checklist under “Investigation” for questions to ask him.) Place notes of interview in trial notebook behind Witness Sheet for the officer.

_____14. Ask attorney if you should prepare draft Summons and Complaint for attorney’s signature. Ask attorney if you should add “Trial by Jury Demanded” to Complaint. (If so, also add “Trial by Jury Demanded.”)

_____15. Ask attorney: (1) if you should prepare draft interrogatories for attorney’s signature (see formbook for ideas); and (2) if he/she wants interrogatories served with the complaint.

_____16. After Complaint has been prepared, see that Summons and Complaint (and interrogatories if appropriate) are served. Ordinarily this will be by certified mail, return receipt requested.

_____17. If service of summons and other papers is to be by process server, prepare “Instructions for Service” and deliver all to process server.

_____18. If this is an auto accident case and the file does not indicate that the defendant has insurance, prepare letter for attorney to sign to Safety Responsibility Division to ask them not to release deposit of adverse driver.

_____19. After the Summons and Complaint has been served, file the original in court with the affidavit of service. (Be sure to keep copy of all for our file.)

_____20. Prepare letter for attorney to sign, telling client that Summons and Complaint has been served.

_____21. Make up tickler card to pull file 23 days after Summons and Complaint has been served.

_____22. If attorney has not made appearance for defendant by 23 days after Summons and Complaint has been served, tell attorney and ask if he/she wants case treated as a default.
(a) If this case is not a default case, then do the rest of this checklist.
(b) If this is a default case, then do not do the rest of this checklist.

_____23. Ask attorney if he wants interrogatories. If so, prepare draft of interrogatories for attorney to sign. (See formbook on Interrogatories for standard sets.)

_____24. After attorney has signed interrogatories, mail to other attorneys and make affidavit of mailing.

_____25. See separate checklist under “Interrogatories” for standard follow-up procedure for our interrogatories sent out, and follow-up as stated in that checklist.

_____26. If answer with counterclaim is received from defendant, prepare letter for our attorney to mail copy to our client’s insurer with letter by attorney informing the insurer of claim against insured, and ask if insurer wants us to handle the defense of the claim.

_____27. Make tickler to do following item number 28, in 14 days.

_____28. 14 days after a counterclaim is received make up Reply for attorney to sign, and then mail (within 20 days after counterclaim was served on us) and make affidavit of mailing.

_____29. Prepare a draft summary of the pleadings. Place in trial notebook behind “Pleadings,” tab.

_____30. Send FYI copies of Answer and defendant’s responses to discovery to client.

_____31. If interrogatories are received from other side: see separate checklist under “Interrogatories” for standard procedure for getting answers ready in time.

_____32. Suggest to attorney any remaining items on pink “Civil Trial Notebook Checklist” in trial notebook you think you could or should complete for this file.

FORM 5.170      NOTICE OF TAKING DEPOSITION OF JUDGMENT DEBTOR

**(Legal Assistant checks off items on this checklist when completed.)

_____1. Make photocopy of this checklist and place it in trial notebook behind tab for “Plan.”

_____2. Make up form letter acknowledgment of receipt, to insurance company or client, for attorney to sign.

_____3. Determine the date the Summons and Complaint was served on our insured. If you cannot obtain from the file the date the Summons and Complaint was served on our insured, call our insured and find out when it was served and how it was served on him. If the insured cannot be located by telephone, write him promptly to get this information.

_____4. Put a note in the attorney’s appointment book and also in our tickler file for 18 days after Summons and Complaint was served that the Answer is due.

_____5. If you phone client for any reason before step 24 is completed, ask him at the same time if he wants any counterclaim and put note in file as to his response.

_____6. Prepare counterclaim advice letter, to go out to insured, for attorney’s signature. (Do this even if you have discussed it personally with client.) (See Form #2.250; also see following checkpoint.)

_____7. Check insurance coverage. If amount sued for exceeds amount of insurance, prepare excess letter to go out to insured. (See Form #2.250.)

_____8. If attorney requests you to do it: interview defendant and complete “Client Information” questionnaire. Place in trial notebook behind tab for “Our Witnesses.”

_____9. Fill out blue summary information sheet, and place it in trial notebook behind tab for “Summary.”

_____10. On first contact with client, ask if client has pictures (of damaged property, if any or of accident site). Obtain and place any pictures in red sub-file.

_____11. Obtain any property repair estimates and any final repair bills regarding defendant’s own property. Put in red sub-file.

_____12. If auto case, obtain length of time our car was not able to be used while repairs were accomplished. Place information on remarks section of blue accident basic information sheet.

_____13. Sort file.

_____14. If auto case, prepare a letter to Safety Responsibility Division to get copy of police officer’s report. When it is received, place in red subfile.

_____15. When police officer’s report is obtained, interview police officer. (See separate checklist under “Investigation” in this book for questions to ask him.) Place notes of interview in trial notebook behind tab for “Their Witnesses” unless told otherwise.

_____16. Put “Civil Trial Notebook Checklist” in trial notebook behind tab for “Plan”.

_____17. Discuss with attorney which items on Civil Trial Notebook Checklist he wants you to do. (Attorney checks off items on checklist when completed.)

_____18. Prepare interrogatories for attorney to sign. (See Formbook on Interrogatories for standard sets.)

_____19. After attorney has signed interrogatories, mail to other attorneys and make affidavit of mailing.

_____20. Mail a “For Your Information” copy of interrogatories to our client (to both insurer and insured if insurance company case.)

_____21. See standard procedure for our interrogatories sent out and use it for follow-up.

_____22. If there is a counterclaim to be put in, ask the attorney what should be asked for in the way of a counterclaim.

_____23. If attorney requests you: prepare draft of Answer for attorney’s signature. Ask attorney if you should add “Trial by Jury Demanded” to Answer.

_____24. When Answer is prepared, mail a “For Your Information” copy to our insurance client and also to any personal client.

_____25. Prepare a summary of the pleadings and place in trial notebook behind tab for pleadings.

_____26. Make up suit card; give it to attorney.

_____27. If interrogatories are received from other side; see our standard procedure for getting answers ready in time.

_____28. Complete “Finder List” form with names and addresses of all possible witnesses shown in file and place form behind “Finder” tab in trial notebook.

_____29. Again check the “Civil Trial Notebook Checklist” in trial notebook. Suggest to attorney any remaining items on checklist you think you could or should complete for the file.

FORM 5.180      CHECKLIST: SUGGESTED INTERROGATION OF DEBTOR

1.    IDENTIFICATION OF WITNESS

2.    TIME, PLACE, STATUS OF ALL PERSONS AT ACCIDENT
A. Time and place
B. Regarding any Witness or Passenger
1. Position occupied
2. Relationship to parties
C. Regarding Driver
1. Description of vehicle
2. Licensed
3. Owner or agent of owner
4. Destination

3.    DESCRIPTION OF LOCUS
A. Weather
B. Condition of streets
C. Identification of locus of accident
D. Obstructions to vision or to course
E. Traffic controls

4.    ACCIDENT
A. Direction and speed of each vehicle
B. Locate vehicles where first seen
C. Locate vehicles in relative position at same time
D. Follow each vehicle to impact, giving course changes, brake application and other acts
E. Point of impact on street
F. Point of impact on vehicles
G. Course of vehicles after impact

5.    SCENE DEBRIS AND MARKS

6.    RES GESTAE STATEMENTS AT SCENE

7.    POLICE INVESTIGATION

8.    WITNESSES

9.    INSURANCE COVERAGES OF ALL PARTIES

10.   DAMAGES TO BOTH VEHICLES

11.   PERSONAL INJURIES


Lawrence R. Klemin is the author and editor of the Second Edition of Civil Practice of North Dakota. Klemin, a 1978 graduate of the University of North Dakota School of Law (Juris Doctor with Distinction), is President of Bucklin, Klemin & McBride, P.C., a law firm in Bismarck, North Dakota. He has served on many law related committees and in numerous advisory capacities, including the National Conference of Commissioners on Uniform State Laws, Criminal Justice Committee of the National Conference of State Legislatures, Chair of the Administrative Law Committee of the State Bar Association of North Dakota, and State Advisory Council for the North Dakota Office of Administrative Hearings. Klemin has also served as a Member of the North Dakota House of Representatives. Klemin is the President of Litigation Services, Inc., publisher of Civil Practice of North Dakota. The website of Schweigert, Klemin & McBride, P.C. is located at www.bkmpc.com.