02 Oct Does Debtor’s Prison Still Exist in the United States, and What is an Order of Capias?
Many times in the past I have been asked by potential clients whether they could be imprisoned for getting behind on credit card payments or failing to pay old debts. Invariably my answer has been in the negative. Of course it has. The concept of the debtors’ prison is extremely antiquated. Evidently, the last known instance of debtor’s prison in the United States was around 1833 when it was eliminated by federal decree. In Great Britain, debtor’s prisons were made unlawful by the Debtors Act of 1869. So, of course I have advised clients and potential clients that incarceration would not follow their inability to pay their debts (with the notable exception, of course, of certain fraudulent debts, child support debts, criminal-related fines and certain tax debts).
But has my advice been accurate? Recently I was confronted with an “Order of Capias” issued by a county trial level court here in Pennsylvania. This order was essentially a “bench warrant” issued by a Judge in a far away county. The Order of Capias required a sheriff to immediately arrest the debtor and take him to this far away county to answer to the Judge.
In order to better understand the context of this Order of Capias, what follows is a brief chronological history of the procedures employed by the debt collection lawyer to obtain this strange Order:
- Civil lawsuit was filed against the debtor in the name of a debt buyer. The underlying debt happened to be an old credit card debt.
- The Debtor failed to answer the complaint in a timely fashion thus leading to the issuance of a default judgment in favor of the debt buyer.
- The lawyer for the debt buyer proceeded to use discovery procedures “in aid of execution of the judgment”. These procedures empower the debt collection lawyer to send “interrogatories” to the debtor and to schedule the debtor for a deposition. The purpose of this is to locate any assets which the debtor may have and which may be amenable to execution.
- The debt collection lawyer noticed the debtor for a deposition. The deposition was of course located at the debt collection lawyer’s office on the opposite side of the state. The debtor attempted to reschedule, but the debt collection lawyer refused.
- When the debtor failed to attend the deposition, the debt collection lawyer filed two motions with the court, the end result being the Order of Capias warranting the arrest and subsequent incarceration of the debtor.
While procedures such as these are frightening (and very unusual), there are very powerful tools at the disposal of a debtor who is subject to such a scenario. Of course, the most powerful of these tools is the bankruptcy code itself. The filing of a bankruptcy petition leads to the immediate imposition of the Automatic Stay to prevent the further execution of judgments in this manner.
Another such tool is the Fair Debt Collection Practices Act (FDCPA). The utilility of this law should never be underestimated; however, it does require a trained lawyer to understand this law’s implications and use it to the debtor’s best advantage. When used correctly, it can even be more powerful than the Bankruptcy Code, as it can permit the debtor to “take the offense.”
Procedural laws can also be used to great effect in cases such as this. Issues of jurisdiction, proper service and proper pleading of the original complaint may be effectively raised by a skilled attorney.
Finally, if you ever have reason to believe that a lawyer who is treating you unfairly or is somehow violating your rights, you should not hesitate to contact your state’s disciplinary system for lawyers. In Pennsylvania, this would be the PA Disciplinary Board.
Bottom line: contact a lawyer. In many cases, if a lawyer can spot an FDCPA violation, that lawyer may even agree to represent you on a “contingent fee” basis, i.e., you only pay if you win.
Bankruptcy Law Network (BLN)
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