Are Civil Bench Warrants Worth Getting?
Are Civil Bench Warrants Worth Getting?
I am not an attorney, I am a judgment referral expert (Judgment Broker). This article is my opinion, based on my experience in California, and laws vary in every state. Nothing in any of my articles can ever be considered legal advice. Whenever you require legal advice or a strategy to use, you should contact a lawyer.
One of the age-old tools in judgment enforcement are debtor (and 3rd parties that know or possess about the debtor’s assets) exams at the court. A related tool is document production requests. What happens when a properly-served debtor fails to show up at the court hearing?
If you request and pay the court, they will request or issue a bench warrant (actually named a Warrant Of Body Attachment). You must pay the court or sheriff, to get a warrant issued and made active.
What happens afterward depends on what state and county your judgment debtor resides at. In some places in the US, the judgment debtor gets picked up and becomes a mandatory guest at a sheriff or court office, sometimes overnight guests, and informed they better show up at the next hearing, and if they do not show up again, they need to spend 10 days in jail.
In most places in the US, the average result is much less impressive. Where I live, in Santa Clara County, the odds are less than 1 in 100 the judgment debtor will be picked up at all. Usually, only the most down and out debtors, the kind that gets arrested often, are detained for civil bench warrants.
Remember that when a judgment debtor does not show up in court after being properly served, they have disobeyed the court, not the creditor, so this is a contempt of court issue.
If your judgment debtor is down and out and poor, maybe it is a good idea to stop spending time and money on them, until you discover assets you can go after, perhaps years later. If your judgment debtor is poor, what good will a bench warrant do?
Even when you want inconvenient luck to mess up your judgment debtor’s, you are much better off not attempting to get them fired or involving law enforcement/regulatory bodies, etc, because it creates more work or expense for you, and may reduce their income, which means they may have less assets to repay you with.
Especially when your debtor is well-known; for example, a lawyer, a professional, a doctor, or someone with a good job, one may get some results with a polite letter. Remember to send the “Full Miranda” on the first written communications with debtors.
The letter (for a debtor that is doing well) might say something close to “You believe they are acting unethically, and are displaying conduct which is at variance with their reputation and standing at their business, job, organization, church, law firm, etc”. Also, you could “suggest they ought to comply with the court order to appear at their debtor examination, etc.”
The less you write, the better. Sometime the judgment debtor might fill in the words that should not be in your letter. Never threaten anything, even something that is 100% legal. I’ve gotten a payment from a judgment debtor by mailing them a blank sheet of paper. Their mind filled in all the missing words that were required to help them see the light.
What if you wish to get the debtor picked up and detained, even when (depending on which state) there is only a slim chance of that happening? Then, you would pay the court and/or the sheriff for a warrant Of body attachment (bench warrant). Usually this is done with the required fee and a letter of instruction, payable to the sheriff where “pickup service” on the debtor is requested.
The court issues a warrant of body attachment and forwards it, along with the fees and letter of instruction, directly to a sheriff for service. Sometimes the court requests that you supply some identifying information, e.g., height, weight, color of eyes, hair, etc.
The bench warrant is sent to the local county sheriff. In California, the sheriff only accepts a bench warrant when it comes from a California court or sheriff.
In California, a civil bench warrant is not a “real” arrest warrant and debtors rarely get arrested. The warrant is a piece of paper the sheriff charges you (e.g.) $50.00 to serve on the judgment debtor, who is usually not arrested. There is a small chance that notice of that, might get the debtor’s attention, and encourage them to pay, as anything can happen.
There are usually two types of warrants of body attachment described by California’s CCPs 708.130, 708.170, and 1209-1202 laws. Unlike criminal warrants which are entered into all police and sheriff’s computers; civil warrants are sent only to 1 local sheriffs department, which is responsible (although often not adequately staffed) to serve the warrant on the judgment debtor.
The laws of California don’t allow the sheriffs to collect any civil bail funds. (In some California counties, the sheriff’s do collect bail and lock up judgment debtors, but the laws of California do not support this.)
Not knowing all the California laws is a reason why the California sheriff’s pick up debtors, and some judgment debtors are intimidated by civil bench warrants. It’s a shame that in California, the laws make warrants of body attachment mostly toothless.
While some judgment debtors with a warrant of body attachment against them are picked up, you can’t count on it. If the debtor assets and the judgment are big, getting civil bench warrants may later help to persuade a judge to appoint a receiver.