If you have reached this stage, either the defendant did not fill out the Financial Information Form pursuant to the Florida Rules of Civil Procedure or the form was not attached to your final judgment. It has been over 30 days since the Judge granted your judgment and you haven’t been paid, no offers have been made and basically the defendant is ignoring you. Now it is time to get their attention.
Discovery in aid of execution is governed by Florida Rules of Civil Procedure 1.560. The most basic procedure to make use of, besides the Fact Information Form, is to set a deposition in aid of execution. This is an opportunity for you to sit down one-on-one with the defendant and ask those questions about their financial status, assets, income and other relevant information.
The first step in setting the deposition is to contact a court reporters office in the town or city where the defendant resides and coordinate a date to take your deposition. Once you set the date, your next step is to have the subpoena prepared that you will have served upon the defendant. The subpoena will list the date, time and location of where your deposition will take place and who it is in front of. This will need to be served either via a process server or through the sheriff’s office, depending on your local rules. The purpose of having it served, rather than mailing it, is in case your defendant fails to appear after being duly served you have the option to ask the court to find your defendant in contempt of court.
A helpful suggestion is to attach what is commonly referred to as a “Schedule A” to your subpoena deposition notice. The “Schedule A” is a list of documents you want your defendant to bring to the deposition so that you can inspect them or make copies. The most common documents listed on the “Schedule A” are bank statements, copies of deeds to property, titles to vehicles, registrations to vehicles, pay check stubs, tax returns and copies of any current mortgages. By reviewing these documents before or during the deposition, not only will you gain a better understanding of your defendant’s financial situation, you will be able to ask them questions during the deposition regarding the documents.
If your defendant appears and brings his documents, now you can begin your inquiry. Remember, you have a money judgment and the defendant’s financial situation is completely relevant. Be prepared though to meet opposition. Most people are not comfortable telling someone else how much they make, where their money goes or why. Some defendants will refuse information, either in the form of testimony or document production. In this situation, you need to preserve their objection for the record. This is accomplished by “certifying the question” you asked or document you requested. Later, you can bring these questions before the court and get the judge to compel the defendant to cooperate and either answer your questions or provide the documents you are entitled to.
Once your deposition has ended and you have all your documents and questions answered, what do you do with the information? Next time, I will discuss analyzing the information you have just received and how you can use it to your advantage to begin collecting on your judgment.
As always, please consult with your attorney to determine if this process is right for your situation.
