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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Collecting a Judgment

Attorneys representing judgment creditors will inevitably encounter the uncooperative garnishee that provides a less-than-truthful garnishment disclosure.  Entities and persons related to the judgment debtor in particular may falsely state “none” on a nonearnings disclosure form.  The garnishment statute permits the creditor to move for leave to file a supplemental complaint against the garnishee who denies liability, but this step essentially requires the creditor to invest in a second lawsuit.  In these circumstances, Minn. Stat. §571.75, subd. 3, offers an effective and seldom used tool for getting the attention of the uncooperative garnishee.  That statute permits a creditor to obtain “an ex parte order requiring the garnishee … to appear for oral examination before the court or a referee appointed by the court.”  This oral examination procedure has a number of advantages over a deposition in aid of collection.

First, the garnishee receives a court order, signed by a judge, compelling the appearance, rather than a deposition notice issued by the creditor’s attorney.  The oral examination is a special term of the district court, convened at the request of a party, rather than a seemingly private discovery procedure with no apparent court involvement.  Second, the creditor’s counsel can select an appropriate referee for the proceeding, subject to court approval.  Retired judges and attorneys who provide special master services are good candidates, and the only limitation is that the referee may not be a partner or employee of the creditor’s attorney.  The referee is then named in the proposed order presented to the court when requesting an oral examination.  Third, the presence of a referee in the examination will likely have positive effects on the quality of the testimony.  With a referee presiding, unwarranted objections are likely to be fewer in number and it may be possible to have the referee rule on objections and other disputes that arise during the oral examination.

Faced with a court order to appear and testify under oath in front of a retired judge, the garnishee may just “remember” that asset owed to the debtor that is available to satisfy the judgment.

Mark Thieroff

Siegel Brill Greupner Duffy & Foster PA

Minneapolis


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