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28-25 Proceedings Supplementary to the Execution

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CHAPTER 28-25PROCEEDINGS SUPPLEMENTARY TO THE EXECUTION28-25-01.Examination of judgment debtor.The court out of which an executionagainst property issued upon a judgment for more than twenty-five dollars, exclusive of costs,<br>may require the judgment debtor to appear and answer concerning the judgment debtor's<br>property:1.If the execution has been returned unsatisfied in whole or in part, by the sheriff of the<br>county where the judgment debtor resides or has a place of business, or by the<br>sheriff of the county where issued, if the judgment debtor is a nonresident; or2.If before the return of the execution it is made to appear to the court that the<br>judgment debtor has property which the judgment debtor unjustly refuses to apply to<br>the satisfaction of the execution.28-25-02. Where examination held. The examination must be held in the county wherethe judgment debtor resides, if the judgment debtor is a resident of the state. Otherwise, it may<br>be held where ordered by the court.28-25-03. Before whom examination held. The examination may be had before thecourt or before a referee appointed by the court. If the judgment debtor is a resident of a judicial<br>district other than that from which the execution issued, the court may refer the examination to<br>the district court of the county of the debtor's residence.28-25-04. Witnesses may be called. On an examination under this chapter, eitherparty may examine witnesses in that party's behalf and the judgment debtor may be examined in<br>the same manner as a witness.28-25-05. When debtor may be arrested. Instead of the order requiring the attendanceof the judgment debtor, the judge, upon proof by affidavit or otherwise to the judge's satisfaction<br>that there is danger that the debtor will leave the state or attempt to avoid being found and that<br>there is reason to believe that the debtor has property which the debtor unjustly refuses to apply<br>to such judgment, may issue a warrant requiring the sheriff of any county where such debtor may<br>be to arrest and bring the debtor before such judge. Upon being brought before the judge, the<br>debtor may be examined on oath and, if it then appears that there is danger that the debtor will<br>leave the state and that the debtor has property that the debtor has refused unjustly to apply to<br>such judgment, the debtor may be ordered to enter into an undertaking with one or more sureties<br>that the debtor from time to time will attend before the judge as directed and that during the<br>pendency of the proceedings the debtor will not dispose of any portion of the debtor's property<br>not exempt from execution. In default of entering into such undertaking, the debtor may be<br>committed to jail by warrant of the judge as for contempt.28-25-06. Debtor cannot claim privilege. A person on examination pursuant to thischapter may not be excused from answering any question on the ground that the person's<br>examination will tend to incriminate the person, but the person's answer may not be used as<br>evidence against the person in any criminal proceeding or prosecution.28-25-07. Examination of debtor's debtor. After the issuing or return of an executionagainst property of the judgment debtor, or of any one of the several debtors in the same<br>judgment, and upon an affidavit that any person, corporation, or limited liability company has<br>property of such judgment debtor or is indebted to the judgment debtor in an amount exceeding<br>ten dollars, the judge by an order may require such person, corporation, or limited liability<br>company, or any officer or member thereof, to appear at a specified time and place and answer<br>concerning the same. The judge also may require notice of such proceeding to be given to any<br>party to the action in such manner as may seem proper to the judge.Page No. 128-25-08. Proceedings applicable to joint debtors. The proceedings mentioned in thischapter may be taken upon the return of an execution unsatisfied, issued upon a judgment<br>recovered in an action against joint debtors, in which some of the defendants have not been<br>served with the summons by which said action was commenced, so far as relates to the joint<br>property of such debtors, and all actions by creditors to obtain satisfaction of judgments out of the<br>property of joint debtors are maintainable in like manner and to the same effect.28-25-09. Witnesses - Attendance compelled. Witnesses may be required to appearand testify on any proceeding under this chapter in the same manner as upon the trial of an<br>issue.28-25-10. Answers on oath - Referee reports to court. All examinations and answersbefore a judge or referee under this chapter must be on oath, except that when a corporation<br>answers, the answer must be on the oath of an officer of the corporation and that when a limited<br>liability company answers, the answer must be on the oath of a manager of the limited liability<br>company. If the examination is before a referee, it must be taken by the referee and certified to<br>the judge appointing who appointed the referee.28-25-11.Property applied - Wages exempt - Suspension of occupational orprofessional license for nonpayment of defaulted state guaranteed student loans.1.The judge may order any property of the judgment debtor not exempt from execution<br>in the hands either of the judgment debtor or of any other person or due the<br>judgment debtor to be applied toward the satisfaction of the judgment, except that<br>the earnings of the debtor for the debtor's personal services at any time within sixty<br>days next preceding the order cannot be so applied when it is made to appear, by<br>the debtor's affidavit or otherwise, that the earnings are necessary for the use of a<br>family supported wholly or partly by the debtor's labor.2.If the debt for which a judgment is entered is for a guaranteed student loan, the<br>court, after considering the factors in subsection 1, shall address and make specific<br>findings on the issue of whether the judgment debtor has an occupational or a<br>professional certificate license or permit issued by or on behalf of the state or any<br>occupational or professional boards, which the judgment debtor is required to obtain<br>before engaging in the judgment debtor's occupation or profession.The court,based on principles of fairness, including consideration of whether the judgment<br>debtor has been unjustly enriched, may suspend a judgment debtor's certificate,<br>license, or permit. Following a decision to suspend a judgment debtor's certificate,<br>license, or permit, the court shall notify the judgment debtor that the decision<br>becomes final thirty days after the notification unless the judgment debtor satisfies<br>the entire outstanding payment due or makes regular payment on the judgment in a<br>manner and at times satisfactory to the court. The court shall notify the proper<br>licensing authority of the court's decision to suspend a judgment debtor's certificate,<br>license, or permit. A certificate, license, or permit suspended by an order issued<br>under this section may be reissued only by order of the court.An appeal by ajudgment debtor who has had a certificate, license, or permit suspended under this<br>section is an appeal from the court's order and may not be appealed to the licensing<br>authority.28-25-12. Receiver appointed - Transfers enjoined. The judge by order also mayappoint a receiver of the property of the judgment debtor in the same manner and with like<br>authority as if the appointment were made by the court according to section 32-10-01. Before the<br>appointment of such receiver, the judge shall ascertain, if practicable, by oath of the party or<br>otherwise, whether any other supplementary proceedings are pending against the judgment<br>debtor and, if such proceedings are so pending, the plaintiff therein shall have notice to appear<br>before the judge and likewise shall have notice of all subsequent proceedings in relation to such<br>receivership. No more than one receiver of the property of a judgment debtor may be appointed.<br>The judge by order also may forbid a transfer or other disposition of the property of the judgment<br>debtor not exempt from execution and any interference therewith.Page No. 228-25-13. Record of orders. Whenever the judge grants an order for the appointmentof a receiver of the property of the judgment debtor, the same must be filed in the office of the<br>clerk of the court from which execution issued, and the clerk shall record the order and shall note<br>the time of the filing of such order therein. A certified copy of the order must be delivered to the<br>receiver named therein and the receiver is vested with the property and effects of the judgment<br>debtor from the time of the filing and recording of the order as aforesaid. The receiver of the<br>judgment debtor is subject to the direction and control of the court appointing the receiver.<br>Before the receiver is vested with any real property of such judgment debtor, a certified copy of<br>the order must be recorded in the office of the recorder of the county in which any real estate of<br>such judgment debtor sought to be affected by such order is situated, and also in the office of the<br>recorder of the county in which such judgment debtor resides.28-25-14. Procedure on adverse claims. If it appears that a person, corporation, orlimited liability company alleged to have property of the judgment debtor, or to be indebted to the<br>judgment debtor, claims an interest in the property adverse to the judgment debtor or denies the<br>debt, such interest or debt is recoverable only in an action against such person, corporation, or<br>limited liability company by the receiver, but the judge by order may forbid a transfer or other<br>disposition of such property or interest until a sufficient opportunity is given to the receiver to<br>commence the action and prosecute the same to judgment and execution. Such order may be<br>modified or dissolved by the judge granting the same at any time on such security as the judge<br>shall direct.28-25-15. Allowance of witness fees and disbursements. The judge may allow to thejudgment creditor or to any party examined, whether a party to the action or not, witness fees and<br>disbursements.28-25-16. Punishment for contempt. If any person, party, or witness disobeys an orderof the judge or referee duly served, such person may be punished by the judge as for a<br>contempt. In all cases of commitment under this chapter, the person committed, in case of<br>inability to perform the act required, or to endure the imprisonment, may be discharged from<br>imprisonment by the judge committing the person.Page No. 3Document Outlinechapter 28-25 proceedings supplementary to the execution