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Debtors rejoice, judge can’t make debtors disclose their assets

Arizona Bank got a judgment against David and Glenette Nothum after the Nothums failed to repay a loan. When the Nothums refused to answer written questions about their assets, the bank had them brought into court to answer the questions in front of a judge.

David Nothum pled the Fifth. He used the constitutional privilege against self-incrimination to avoid answering questions about who owned the house where he lived, saying that the answer to the question might tend to incriminate him.

To get around this roadblock, the bank’s lawyers went to an assistant prosecuting attorney, who granted the Nothums “use immunity” for their testimony in the hearing on their assets. With immunity, they would have to talk. Their answers couldn’t be used against them in a criminal prosecution.

Even so, the Nothums still wouldn’t talk, so the judge threw them into jail for contempt of court.

To break the stalemate, the Nothums were released from jail on the condition that they immediately ask a higher court whether Judge Kintz had the power to lock them up for refusing to answer questions.

A rebuttable presumption arises when a witness raises the Fifth Amendment right to refuse to answer. The presumption is that the answer to the question might tend to incriminate the witness. To overcome this presumption, the party asking the question has to demonstrate to the judge’s satisfaction that the answer “cannot possibly tend to incriminate the witness.” The witness does not have to answer unless the judge rules that the answer can’t incriminate the witness.

Rather than require the bank’s attorneys to prove that the answer couldn’t tend to incriminate the Nothums, Judge Kintz locked them up. The Missouri Court of Appeals, in State ex rel Nothum v. Kintz, issued its writ to prohibit the enforcement of Judge Kintz’s order to make the Nothums answer questions about their assets.

Lawyers who handle collections (and debtors) will want to know if this tactic will work in their cases. After all, demonstrating that an answer to a question could not possibly tend to incriminate sounds impossible.

People who want to hide their property from their creditors ought to be happy with this decision.


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