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While the majority of debtor exams happen inside areas away from the judge or in hallways, once in a while your debtor will try to claim "their Fifth Amendment right", and state they can't answer the question, as replying to the question may become them incriminating themselves.
My articles are my opinions and are not, a legal opinion. I'm the judgment recovery expert, and not an attorney. When you want a strategy to use or legal advice, [url=http://www.ilyav.com/uggpascher.php]boots ugg pas cher[/url] please retain an attorney.
Usually, debtor exams are designed to enjoy the [url=http://www.mquin.com/giuseppezanotti.php]giuseppe zanotti sneakers[/url] "widest scope of inquiry in the search for available assets to repay a [url=http://www.rtnagel.com/louboutin.php]louboutin pas cher[/url] judgment". Usually, "Leave no stones unturned" will apply, and judgment creditors are [url=http://www.rtnagel.com/airjordan.php]nike air jordan pas cher[/url] a lot less prone to relevance objections if they are able to demonstrate the link between the question and your debtor's assets.
The 5th Amendment, finalized in 1791, has a section that says no individual can be compelled to be a witness against themselves in any criminal related case. 5th Amendment protection claims are a lot more commonly used inside criminal courtrooms, although occasionally 5th Amendment claims are also used inside civil courtrooms.
Unless a prospect of some criminal-related charge appears (involving the police or the district attorney's office involved), inside the courtroom; judgment creditors are most often allowed to ask nearly whatever they want to. Most of the time, the debtor can only win their claim against incriminating themselves if there's a real possibility of being prosecuted for some crime. The Fifth Amendment just protects against incriminating themselves, and isn't the right to avoid answering. Courts can force debtors to answer a question in circumstances when a debtor is trying to block their judgment creditor.
With a crime-related matter, a defendant or their lawyer may request a recess, and visit the office of the prosecutor, to get their Fifth Amendment prosecution waiver, which will decrease the chances of incriminating themselves.
Within civil courtrooms, if your debtor claims the Fifth Amendment for the reason to avoid answering your question during the exam, the debtor needs to next speak with the judge. Because you are the judgment creditor, you may [url=http://www.maximoupgrade.com/hot.php]hollister[/url] then politely request that the judge to look at the question(s), and get your debtor tell the court the reason the questions could be violating their Fifth Amendment rights in this civil debtor exam. After that, the court either:
A) Remind your debtor it is a civil matter, and not a [url=http://www.1855sacramento.com/moncler.php]moncler outlet[/url] criminal-related matter, and your debtor can't claim any Fifth Amendment protection unless the debtor alleges that disclosing that info could result in some criminal charge against them.
B) Allow your debtor's Fifth amendment protection request just for a specific question. Whether any certain 5th Amendment claim gets approved or denied, can't be predicted in advance. It's always decided case-by-case, depending on the specific circumstances and facts on all questions.
A 5th Amendment protection claim may be presented in any kind of case; criminal or civil, administrative or judicial, adjudicatory or investigatory. Your debtor can't successfully make their "blanket claim" of 5th Amendment rights. But, on individual questions, 5th Amendment claims are often approved, even for judgment recovery matters.
Even if the debtor fails to claim their Fifth Amendment rights, the debtor's failure to answer a questions will very rarely be the reason for a contempt of court decision. Even if the reasoning [url=http://www.vivid-host.com/barbour.htm]www.vivid-host.com/barbour.htm[/url] behind a specific legal action is totally [url=http://www.1855sacramento.com/woolrich.php]woolrich bologna[/url] without any merit, somebody's good faith assertion [url=http://www.davidhabchy.com]barbour outlet[/url] of its meritorious nature, even if it does not succeed, rarely will be a badge of contempt. Although, a fair judge might become annoyed with debtors attempting to take unfair advantage of the Fifth Amendment's purpose, just to block their judgment creditor.
Even if a judge commands your debtor to answer your question after they've claimed a Fifth Amendment right, your debtor may then appeal that decision; and tie up things for way too long, and that increases the chances that that judgment will be settled for a big discount. If your debtor's Fifth Amendment-related claim gets allowed, the judgment creditor could perhaps then take this matter up later at some appeal-type of proceeding, requiring them to waste additional money and time.
In the case of Troy versus Superior Court (1986) 186 Cal. App. 3d 1006, the Court of Appeals stated that in order for a debtor to claim the Fifth in a debtor exam, an actual danger needs to exist, not [url=http://www.1855sacramento.com/woolrich.php]woolrich outlet[/url] just speculation. This [url=http://www.gotprintsigns.com/hollisterpascher/‎]hollister pas cher[/url] case was then followed by the case of Hooser vs Superior Court (2000) 84 Cal App 4th 997.
A Fifth Amendment claim is more difficult to win in family court-related support cases, see Marriage of Sachs, 95 Cal. App. 4th 1144 (Cal. Ct. App. [url=http://www.ilyav.com/uggpascher.php]ugg pas cher[/url] 2002). A review of that case was later denied by the Supreme Court. And, in California, as defined in CCP 708.130, the spousal protection doesn't apply in a debtor exam.
A lot of judges are fairly liberal in allowing Fifth Amendment claims when they can. Lawyers have argued successfully in bankruptcy courtrooms, representing their debtor clients with overseas bank accounts; to stop specific individual questions when the debtor's answers might be used to indict a debtor for fraud on the bankruptcy court.
Consider this common debtor exam question: "Do you own any overseas bank accounts?" The debtor may control some offshore account that the debtor did not mention to the Internal Revenue Service. If the debtor answers "Yes", then this might open the debtor to being charged with tax fraud; so the debtor may answer, "I cannot answer this question under my 5th Amendment rights". While not fair to judgment creditors, the majority of judges wouldn't compel your debtor to answer the question.
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