subject: California Civil Bench Warrants [print this page] I am not an attorney, I am a judgment referral specialist (Judgment Broker). This article is my opinion, based on my experience in California, and laws are different in every state. Nothing in any of my articles should ever be considered legal advice. If you ever need 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 possess or know about the judgment debtor's assets) exams at the court. A related tool is document production requests. What happens if a properly-served debtor does not show up at the court hearing?
If you ask and pay the court, they will issue or request a bench warrant (actually named a Warrant Of Body Attachment). You need to pay a fee to the court or sheriff, to get a warrant issued and activated.
What happens next depends on which state and county your debtor resides at. In some locations in the US, the judgment debtor gets picked up and becomes a mandatory guest at a sheriff or court location, often overnight guests, and informed they should attend the next hearing, and if they fail to show up again, they must spend 10 days in jail.
In most locations in the US, the average results are much less impressive. Where I work, in California, the odds are less than one in one hundred the debtor will be picked up at all. Often, only the most down and out judgment debtors, the type that gets arrested often, are picked up on civil bench warrants.
Remember that when a 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.
When your judgment debtor seems poor and down and out, perhaps it is best to stop spending time and money on them, until you find assets you can go after, perhaps years later. If the debtor is poor, what good does a bench warrant do?
Even if you want inconvenient luck to mess up your judgment debtor's, you are far better off not attempting to get them involved with law enforcement/regulatory bodies or fired, 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 the debtor is well-known; for example, a lawyer, a professional, a doctor, or anyone with a good job, one may get some results with a polite letter. Remember to include the "Full Miranda" on your first written communications with debtors.
The letter (for a judgment 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 might "suggest they ought to comply with the court order to appear at their judgment debtor examination, etc."
The less one writes, the better. Sometime the judgment debtor might fill in the words that should be missing in the letter. Never make any kind of threat, even something that is totally legal. I have gotten a payment from a debtor after mailing them a blank piece of paper. Their mind filled in all the missing words that were needed to help them see the light.
What if you wish to get the judgment debtor picked up and detained, even when (depending on which state) there is just a slim chance of that happening? Then, you need to pay the sheriff and/or the court for a warrant Of body attachment (bench warrant). Usually this is done with a letter of instruction and the required fee, payable to the sheriff where "pickup service" for the 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 warrant of body attachment is sent to the local county sheriff. In California, the sheriff only accepts a warrant of body attachment when it originates 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 a sheriff charges you (e.g.) $50.00 to serve on the debtor, who is not usually 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 that are entered into all sheriff and police's computers; civil warrants are sent only to 1 local sheriffs department, that is responsible (although often not adequately staffed) to serve the warrant on the debtor.
The laws of California do not permit the sheriffs to recover any civil bail money. (In some California counties, the sheriff's do recover bail and lock up judgment debtors, but California laws do not support this.)
Not knowing all the laws of California is the reason why the California sheriff's pick up judgment debtors, and some debtors are intimidated by warrants of body attachment. It is a shame that in California, the laws make civil bench warrants almost worthless.
While some judgment debtors with a civil bench warrants against them are picked up, one cannot count on it. If the judgment and the debtor assets are big, getting civil bench warrants might later help to persuade a judge to appoint a receiver.
