Are Civil Bench Warrants Toothless?

I am not a lawyer, I am a judgment referral specialist (Judgment Broker). This article is my opinion, based on my experience in California, and laws vary in each state. Nothing in any of my articles can ever be considered legal advice. If you ever require legal advice or a strategy to use, you should contact an attorney.

One of the tools of the judgment enforcement toolbox are debtor (and third parties who know or possess about the judgment debtor's assets) exams at the court. A related tool is document production requests. What happens when a properly-served debtor does not show up at the court hearing?

If you ask and pay the court, they will request or issue a bench warrant (actually named a Warrant Of Body Attachment). You need to pay the court or sheriff, to get a warrant issued and made active.

What happens afterward depends on which state and county the debtor is located. In some places in the US, the judgment debtor gets picked up and becomes a mandatory guest at a court or sheriff location, sometimes held overnight, and told they should attend the next hearing, and if they fail to show up again, they need to spend 10 days in jail.

In most locations in the US, the average result is much less impressive. Where I live, in Santa Clara County, the odds are less than one in one hundred the debtor will get picked up at all. Often, only the most down and out debtors, the type that gets arrested often, are detained for 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.

If your judgment debtor is down and out and poor, maybe it is best to stop spending money and time on them, until you discover assets you might be able to recover, maybe years later. If the judgment debtor is poor, what good will a bench warrant do?

Even if you wish bad luck to mess up your judgment debtor's, you are much better off not attempting to get them involved with law enforcement/regulatory bodies or fired, etc, as it makes more work or expense for you, and could reduce their income, which means they will have less assets to pay you with.

Especially if your debtor is well-known; for instance, a lawyer, a professional, a doctor, or someone with a good job, you may find some results with a polite letter. Remember to include the "Full Miranda" on your first written communications with judgment debtors.

The letter (for a debtor who 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 you write, the better. Sometime the debtor might fill in the words that should not be in your letter. Never threaten anything, even something that is totally legal. I have been paid from a debtor by mailing them a blank sheet 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 if (depending on your state) there is only a tiny chance of that happening? Then, you would pay the court and/or the sheriff for a bench warrant (warrant Of body attachment). Usually this is done with the required fee and a letter of instruction, payable to the sheriff where "pickup service" for the the debtor is to be made.

The court issues a civil bench warrant and forwards it, along with the letter of instruction and fees, directly to a sheriff for service. Sometimes the court asks you to supply some identifying information, e.g., height, weight, color of eyes, hair, etc.

The bench warrant is directed to the local county sheriff. In California, the sheriff will only accept a warrant of body attachment if it originates from a California court or sheriff.

In California, a civil bench warrant is not a "real" arrest warrant and judgment debtors rarely get arrested. The warrant is a piece of paper a 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, may get the judgment debtor's attention, and encourage them to pay, as anything can happen.

There are usually two kinds 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, that is responsible (although usually not adequately staffed) to serve the warrant on the debtor.

The laws of California don't permit the sheriffs to recover any civil bail money. (In some California counties, the sheriff's do collect bail and lock up debtors, however California laws do not support this.)

Not knowing all the laws of California is a 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 warrants of body attachment almost worthless.

While some judgment debtors with a civil bench warrants against them are picked up, you cannot count on it. If the judgment and the debtor assets are large, getting civil bench warrants may later help to convince a judge to appoint your receiver.


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