Almost Dickensian
June 13, 2010 7:37 PM Subscribe
Can't pay your debts in 2010? You may be arrested and thrown into a debtors prison.
Just to be clear: They are being arrested for missing a court appearance, right? Not owing money?
posted by battlebison at 7:47 PM on June 13, 2010
posted by battlebison at 7:47 PM on June 13, 2010
Just to be clear: They are being arrested for missing a court appearance, right? Not owing money?
No. From TFA:
In Illinois and southwest Indiana, some judges jail debtors for missing court-ordered debt payments. In extreme cases, people stay in jail until they raise a minimum payment. In January, a judge sentenced a Kenney, Ill., man "to indefinite incarceration" until he came up with $300 toward a lumber yard debt.
Dickensian, huh?
posted by tyllwin at 7:49 PM on June 13, 2010 [5 favorites]
No. From TFA:
In Illinois and southwest Indiana, some judges jail debtors for missing court-ordered debt payments. In extreme cases, people stay in jail until they raise a minimum payment. In January, a judge sentenced a Kenney, Ill., man "to indefinite incarceration" until he came up with $300 toward a lumber yard debt.
Dickensian, huh?
posted by tyllwin at 7:49 PM on June 13, 2010 [5 favorites]
They are being arrested for missing a court appearance, right? Not owing money?
No, read deeper into the article. One guy in Illinois was ordered incarcerated indefinitely by a judge until he came up with $300.
You'll note throughout the article, the penny-ante nature of the debts. This is the only way the creditors can be sure they won't be facing a lawyer who will have them disbarred and their pet judges censured - by squeezing the poorest of the poor.
posted by Slap*Happy at 7:51 PM on June 13, 2010 [18 favorites]
No, read deeper into the article. One guy in Illinois was ordered incarcerated indefinitely by a judge until he came up with $300.
You'll note throughout the article, the penny-ante nature of the debts. This is the only way the creditors can be sure they won't be facing a lawyer who will have them disbarred and their pet judges censured - by squeezing the poorest of the poor.
posted by Slap*Happy at 7:51 PM on June 13, 2010 [18 favorites]
I'll be the one to say it:
``Many can't go there; and many would rather die.''
``If they would rather die,'' said Scrooge, ``they had better do it, and decrease the surplus population. . . . .''
posted by evilcolonel at 7:54 PM on June 13, 2010 [8 favorites]
``Many can't go there; and many would rather die.''
``If they would rather die,'' said Scrooge, ``they had better do it, and decrease the surplus population. . . . .''
posted by evilcolonel at 7:54 PM on June 13, 2010 [8 favorites]
(Note: hamburger)
posted by evilcolonel at 7:54 PM on June 13, 2010
posted by evilcolonel at 7:54 PM on June 13, 2010
You'll be jailed until you can pay. Then you'll be kicked in the knees till you run faster, and you'll be forced to drink vodka until you're sober.
posted by Pope Guilty at 7:54 PM on June 13, 2010 [53 favorites]
posted by Pope Guilty at 7:54 PM on June 13, 2010 [53 favorites]
Welcome to the third world.
posted by tyllwin at 7:55 PM on June 13, 2010 [8 favorites]
posted by tyllwin at 7:55 PM on June 13, 2010 [8 favorites]
Don't forget, Pope Guilty, that if you start crying, you'll get spanked under the guise of 'being given a reason to cry.'
posted by Ghidorah at 7:57 PM on June 13, 2010 [15 favorites]
posted by Ghidorah at 7:57 PM on June 13, 2010 [15 favorites]
Just to be clear: They are being arrested for missing a court appearance, right? Not owing money?
Yes, that's correct. Or missing some court-ordered payment or appearance or something. Every case I saw in the article had something like that. It's not just the creditors asking for warrants. There was a court action.
The problem isn't that they are being jailed for debt, but that they (apparently) were never served. Unfortunately, for things like this, serving someone can be as easy as knocking on a door once when they aren't home, and then placing an ad in the cheapest, most obscure newspaper. Bam, you're served. Now you can be arrested.
Also, jail is not prison.
posted by gjc at 7:58 PM on June 13, 2010 [1 favorite]
Yes, that's correct. Or missing some court-ordered payment or appearance or something. Every case I saw in the article had something like that. It's not just the creditors asking for warrants. There was a court action.
The problem isn't that they are being jailed for debt, but that they (apparently) were never served. Unfortunately, for things like this, serving someone can be as easy as knocking on a door once when they aren't home, and then placing an ad in the cheapest, most obscure newspaper. Bam, you're served. Now you can be arrested.
Also, jail is not prison.
posted by gjc at 7:58 PM on June 13, 2010 [1 favorite]
Third world? I can't afford the two I already bought!
posted by not_on_display at 7:59 PM on June 13, 2010
posted by not_on_display at 7:59 PM on June 13, 2010
No, read deeper into the article. One guy in Illinois was ordered incarcerated indefinitely by a judge until he came up with $300.
Because he failed to comply with a court order.
You'll note throughout the article, the penny-ante nature of the debts. This is the only way the creditors can be sure they won't be facing a lawyer who will have them disbarred and their pet judges censured - by squeezing the poorest of the poor.
I'm not sure there is anything illegal or censurable here. The creditor filed a suit, the debtor lost and didn't comply with the court ordered solution.
posted by gjc at 8:00 PM on June 13, 2010
Because he failed to comply with a court order.
You'll note throughout the article, the penny-ante nature of the debts. This is the only way the creditors can be sure they won't be facing a lawyer who will have them disbarred and their pet judges censured - by squeezing the poorest of the poor.
I'm not sure there is anything illegal or censurable here. The creditor filed a suit, the debtor lost and didn't comply with the court ordered solution.
posted by gjc at 8:00 PM on June 13, 2010
Also, jail is not prison.
People whose sentences are "indefinite" tend to fail to appreciate that distinction.
posted by Doublewhiskeycokenoice at 8:01 PM on June 13, 2010 [21 favorites]
People whose sentences are "indefinite" tend to fail to appreciate that distinction.
posted by Doublewhiskeycokenoice at 8:01 PM on June 13, 2010 [21 favorites]
A friend of mine in Arizona was sent to Phoenix's horrible, degrading outdoor jail for one night on a DUI charge. She was then told that she would have to pay for her stay there. Or they would throw her in jail again. And charge her for that. And when she couldn't pay for that, they would throw her in jail again. They wouldn't let her pay in installments because they didn't think she had a good enough job. So eventually she had to sell all her stuff to raise $2000 to keep it from effectively becoming a life sentence.
posted by kyrademon at 8:03 PM on June 13, 2010 [30 favorites]
posted by kyrademon at 8:03 PM on June 13, 2010 [30 favorites]
This is happening in Minnesota - a blue state.
Recently a posting indicated it is illegal to photograph police in public in Maryland, Massachusetts, and Illinois - blue states.
posted by millardsarpy at 8:03 PM on June 13, 2010 [3 favorites]
Recently a posting indicated it is illegal to photograph police in public in Maryland, Massachusetts, and Illinois - blue states.
posted by millardsarpy at 8:03 PM on June 13, 2010 [3 favorites]
Or missing some court-ordered payment
So, they're not being jailed for owing the money. They're being jailed for not paying it.
jail is not prison.
Oh, well, the name of th eplace with bars where one is being indefinitely detained makes all of the difference
posted by tyllwin at 8:03 PM on June 13, 2010 [1 favorite]
So, they're not being jailed for owing the money. They're being jailed for not paying it.
jail is not prison.
Oh, well, the name of th eplace with bars where one is being indefinitely detained makes all of the difference
posted by tyllwin at 8:03 PM on June 13, 2010 [1 favorite]
I bet that the legal justification for this is "contempt of court".
posted by Chocolate Pickle at 8:08 PM on June 13, 2010
posted by Chocolate Pickle at 8:08 PM on June 13, 2010
Illinois's name sure has been coming up a lot lately in connection with horrifying stories.
posted by adamdschneider at 8:12 PM on June 13, 2010
posted by adamdschneider at 8:12 PM on June 13, 2010
I'm not understanding this. If you're in jail, you're a bleed on government funds and you can't work a job to pay those debts. Why doesn't garnishing wages work in these situations?
posted by zardoz at 8:15 PM on June 13, 2010 [3 favorites]
posted by zardoz at 8:15 PM on June 13, 2010 [3 favorites]
Because then we can't get our hate-on and show these terrrrists not to mess with the US.
posted by amethysts at 8:25 PM on June 13, 2010
posted by amethysts at 8:25 PM on June 13, 2010
kyrademon: Am I reading this right? Your friend got charged two thousand dollars for one night in an outdoor jail? Above and beyond bail, fines, whatever else?
posted by contessa at 8:27 PM on June 13, 2010
posted by contessa at 8:27 PM on June 13, 2010
This country is not going to end well, is it?
posted by maxwelton at 8:46 PM on June 13, 2010 [5 favorites]
posted by maxwelton at 8:46 PM on June 13, 2010 [5 favorites]
and you'll be forced to drink vodka until you're sober.
That only works with tequila!
posted by mannequito at 8:47 PM on June 13, 2010 [2 favorites]
That only works with tequila!
posted by mannequito at 8:47 PM on June 13, 2010 [2 favorites]
To those saying they were jailed for missing a court date, etc.:
One of them in the article was jailed for failing to pay a court ordered installment to her creditor. That sounds like being jailed purely for being in debt to me.
posted by notswedish at 8:56 PM on June 13, 2010 [1 favorite]
One of them in the article was jailed for failing to pay a court ordered installment to her creditor. That sounds like being jailed purely for being in debt to me.
posted by notswedish at 8:56 PM on June 13, 2010 [1 favorite]
kyrademon: wow. Yet another reminder that life in America, for all but the richest and most privileged of the rich and privileged, really is just a giant crapshoot, where through no fault of your own (or through a fault of your own completely disproportionate to the result), your life can be almost irreparably ruined in one quick turn of events. No matter what you've done in the rest of your adult life, one major illness or accident, one loss of job, one run-in with the wrong cop on the wrong day, one cable TV bill that gets lost in the mail, and you can lose it all and have no hope in hell of getting it back. And that's how it should be, since the alternative is SOCIALISM, and we can't have that, now can we?
posted by notswedish at 9:04 PM on June 13, 2010 [12 favorites]
posted by notswedish at 9:04 PM on June 13, 2010 [12 favorites]
One of them in the article was jailed for failing to pay a court ordered installment to her creditor. That sounds like being jailed purely for being in debt to me.
The thing is, the court ordered her to make a payment, and she ignored that order. I really don't want her to be in jail over it and I'm guessing this is a case of a judge behaving poorly, but she needs to do what the court orders her to do. If she can't make the payments, she needs to declare bankruptcy.
posted by Bulgaroktonos at 9:08 PM on June 13, 2010 [2 favorites]
The thing is, the court ordered her to make a payment, and she ignored that order. I really don't want her to be in jail over it and I'm guessing this is a case of a judge behaving poorly, but she needs to do what the court orders her to do. If she can't make the payments, she needs to declare bankruptcy.
posted by Bulgaroktonos at 9:08 PM on June 13, 2010 [2 favorites]
This bit is key:
The laws allowing for the arrest of someone for an unpaid debt are not new. What is new is the rise of well-funded, aggressive and centralized collection firms, in many cases run by attorneys, that buy up unpaid debt and use the courts to collect
posted by mediareport at 9:19 PM on June 13, 2010 [4 favorites]
The laws allowing for the arrest of someone for an unpaid debt are not new. What is new is the rise of well-funded, aggressive and centralized collection firms, in many cases run by attorneys, that buy up unpaid debt and use the courts to collect
posted by mediareport at 9:19 PM on June 13, 2010 [4 favorites]
contessa, here's some of what she said about it:
"After my one day in jail I owed nearly $2000 in fees to pay for my stay in Sheriff Joe’s hotel [the outdoor "Tent City" prison], pay for my arrest and blood test, etc. I immediately tried to set up a payment plan with the court, but was denied over and over again ... Now I am being charged with “non-compliance of payment” ...
"Three days ago, a warrant for my arrest arrived in the mail. It seems the court has grown tired of waiting for the money I’ve been trying to give them ... Here are my options – pay the balance of $2100 in full immediately, or spend 21 days in jail. And guess who will be responsible for paying for the 21 day jail term which will be over $31,000? I will.
"How am I supposed to do that? And when I cannot pay, I will go back to jail for 90 days. The cycle will continue until I inevitably end up in a federal prison with the taxpayers responsible for my debt, not to mention my own life being destroyed. I am caught in the system and I have to pay my way out of it."
posted by kyrademon at 9:19 PM on June 13, 2010 [31 favorites]
"After my one day in jail I owed nearly $2000 in fees to pay for my stay in Sheriff Joe’s hotel [the outdoor "Tent City" prison], pay for my arrest and blood test, etc. I immediately tried to set up a payment plan with the court, but was denied over and over again ... Now I am being charged with “non-compliance of payment” ...
"Three days ago, a warrant for my arrest arrived in the mail. It seems the court has grown tired of waiting for the money I’ve been trying to give them ... Here are my options – pay the balance of $2100 in full immediately, or spend 21 days in jail. And guess who will be responsible for paying for the 21 day jail term which will be over $31,000? I will.
"How am I supposed to do that? And when I cannot pay, I will go back to jail for 90 days. The cycle will continue until I inevitably end up in a federal prison with the taxpayers responsible for my debt, not to mention my own life being destroyed. I am caught in the system and I have to pay my way out of it."
posted by kyrademon at 9:19 PM on June 13, 2010 [31 favorites]
she needs to declare bankruptcy.
Didn't the US Federal Government pass a credit-company sponsored bill to make it more difficult to declare bankruptcy to avoid the companies having to take responsiblility for irresponsible lending practises a few years back?
posted by rodgerd at 9:23 PM on June 13, 2010 [2 favorites]
Didn't the US Federal Government pass a credit-company sponsored bill to make it more difficult to declare bankruptcy to avoid the companies having to take responsiblility for irresponsible lending practises a few years back?
posted by rodgerd at 9:23 PM on June 13, 2010 [2 favorites]
This is happening in Minnesota - a blue state.
Recently a posting indicated it is illegal to photograph police in public in Maryland, Massachusetts, and Illinois - blue states.
Ah jeezus, enough with this red-state, blue-state shit.
posted by milarepa at 9:26 PM on June 13, 2010 [7 favorites]
Recently a posting indicated it is illegal to photograph police in public in Maryland, Massachusetts, and Illinois - blue states.
Ah jeezus, enough with this red-state, blue-state shit.
posted by milarepa at 9:26 PM on June 13, 2010 [7 favorites]
This country is not going to end well, is it?
It didn't begin well, either.
posted by milarepa at 9:27 PM on June 13, 2010 [3 favorites]
It didn't begin well, either.
posted by milarepa at 9:27 PM on June 13, 2010 [3 favorites]
I'm sorry, why is there a court action at all? Why are the criminal courts involved? Why are people being arrested for failing to appear in a civil court proceeding? I thought the penalty was that you lose the case, and the creditor can attempt to seize any assets they can get their hands on. Where do police, and judges, and bail come in at?
And if this is about "failure to comply with a court order" and not the debt, then why are people being held until they pay the debt? Why does the bail match the debt?
posted by Danila at 9:40 PM on June 13, 2010 [6 favorites]
And if this is about "failure to comply with a court order" and not the debt, then why are people being held until they pay the debt? Why does the bail match the debt?
posted by Danila at 9:40 PM on June 13, 2010 [6 favorites]
Didn't the US Federal Government pass a credit-company sponsored bill to make it more difficult to declare bankruptcy
Yes.
posted by blucevalo at 9:43 PM on June 13, 2010
Yes.
posted by blucevalo at 9:43 PM on June 13, 2010
These things aren't even notable any more. Let us know when they ban kissing in public.
You just know Ashcroft tried.
posted by Pope Guilty at 9:47 PM on June 13, 2010 [2 favorites]
You just know Ashcroft tried.
posted by Pope Guilty at 9:47 PM on June 13, 2010 [2 favorites]
Yeah, it would have been helpful if the article had gone into more detail and background about the legal steps an unsecured creditor takes to collect debt through a civil suit. It sounds like these are cases where people failed to respond and show for their summons/complaint and/or hearing on assets, so the judge ordered the debtor cited for contempt. In civil contempt, unlike criminal contempt, there is no requirement of proportionality in civil contempt punishment, so someone could be held indefinitely for failure to comply with a court order.
So the moral of the story is that debtors need to show up and respond to civil suits, because while a hearing on assets sucks, it's better for a debtor to demonstrate to a court and a creditor what they do and don't have to be able to pay the debt, because it sounds like these judges are trying to make the penalty for default worse than responding.
Why doesn't garnishing wages work in these situations?
In theory, if these debtors don't have assets, this would probably be the preferred step for creditors, unless the debtor is out of work, in which case, the creditor might just drop it if the debtor shows up to a HOA and the creditor decides that the cost of collection outweighs the debt. But the problem sounds like these debtors aren't showing up to respond, in which case, the creditors are getting more favorable results from them by a judge enforcing a contempt citation.
The problem isn't that they are being jailed for debt, but that they (apparently) were never served. Unfortunately, for things like this, serving someone can be as easy as knocking on a door once when they aren't home, and then placing an ad in the cheapest, most obscure newspaper. Bam, you're served. Now you can be arrested.
There are statutory requirements for service, which will vary from state to state, but aside from evictions (allowing service by posting makes sense there), there's usually a requirement to at least attempt personal service before you serve by publication. Even if there were a statute allowing service by posting or publication only, that's ultimately going to be counterproductive for a creditor if they don't make an earnest good faith attempt to effect service There should be a separate hearing on a contempt citation in which a debtor would have an opportunity to contest service before a judge. If a judge finds out the creditor was trying loosey goosey in bad faith with the aim of getting a default judgment, that's ultimately only going to piss off the very judge the creditor needs to give them their writ of execution/writ of garnishment (not to mention a judge could order a creditor in that situation to pay fees and costs as a result of bad faith service).
posted by Dr. Zira at 10:09 PM on June 13, 2010 [1 favorite]
So the moral of the story is that debtors need to show up and respond to civil suits, because while a hearing on assets sucks, it's better for a debtor to demonstrate to a court and a creditor what they do and don't have to be able to pay the debt, because it sounds like these judges are trying to make the penalty for default worse than responding.
Why doesn't garnishing wages work in these situations?
In theory, if these debtors don't have assets, this would probably be the preferred step for creditors, unless the debtor is out of work, in which case, the creditor might just drop it if the debtor shows up to a HOA and the creditor decides that the cost of collection outweighs the debt. But the problem sounds like these debtors aren't showing up to respond, in which case, the creditors are getting more favorable results from them by a judge enforcing a contempt citation.
The problem isn't that they are being jailed for debt, but that they (apparently) were never served. Unfortunately, for things like this, serving someone can be as easy as knocking on a door once when they aren't home, and then placing an ad in the cheapest, most obscure newspaper. Bam, you're served. Now you can be arrested.
There are statutory requirements for service, which will vary from state to state, but aside from evictions (allowing service by posting makes sense there), there's usually a requirement to at least attempt personal service before you serve by publication. Even if there were a statute allowing service by posting or publication only, that's ultimately going to be counterproductive for a creditor if they don't make an earnest good faith attempt to effect service There should be a separate hearing on a contempt citation in which a debtor would have an opportunity to contest service before a judge. If a judge finds out the creditor was trying loosey goosey in bad faith with the aim of getting a default judgment, that's ultimately only going to piss off the very judge the creditor needs to give them their writ of execution/writ of garnishment (not to mention a judge could order a creditor in that situation to pay fees and costs as a result of bad faith service).
posted by Dr. Zira at 10:09 PM on June 13, 2010 [1 favorite]
When I was in highschool, I joined the Youth Communist League. And then, in college, I became a Libertarian. In each instance, my goal was freedom.
But more and more, I'm thinking maybe I should go back and talk with the Commies.
posted by Netzapper at 10:26 PM on June 13, 2010 [2 favorites]
But more and more, I'm thinking maybe I should go back and talk with the Commies.
posted by Netzapper at 10:26 PM on June 13, 2010 [2 favorites]
Government enforcement of private debts??
I will not tolerate this interference in the Free Market!
posted by hamida2242 at 10:31 PM on June 13, 2010 [8 favorites]
I will not tolerate this interference in the Free Market!
posted by hamida2242 at 10:31 PM on June 13, 2010 [8 favorites]
Didn't the US Federal Government pass a credit-company sponsored bill to make it more difficult to declare bankruptcy
Yeah, and some people somehow still think Obama/Democrats are anti-business leftists.
lol
A solemn, lower-case lol
posted by hamida2242 at 10:37 PM on June 13, 2010
Yeah, and some people somehow still think Obama/Democrats are anti-business leftists.
lol
A solemn, lower-case lol
posted by hamida2242 at 10:37 PM on June 13, 2010
How am I supposed to do that? And when I cannot pay, I will go back to jail for 90 days.
"Oh, see you can now work that off here in prison!" The reality of a right-free labor force permanently embedded in the prison industrial complex scares the crap out of me.
posted by Back to you, Jim. at 11:21 PM on June 13, 2010 [4 favorites]
"Oh, see you can now work that off here in prison!" The reality of a right-free labor force permanently embedded in the prison industrial complex scares the crap out of me.
posted by Back to you, Jim. at 11:21 PM on June 13, 2010 [4 favorites]
So, sister owes like $250.
I'm just guessing that court time (including personnel fees), police time, paperwork, food (for while she's in jail), and a dozen other little costs probably added up to at least $250.
How is that in the state's best interest? I could be wrong, of course, and this could be a very cost effective way of recouping $250 (and, perhaps, it is for the debt collecting agency that doesn't have to foot the bill that the state does) but on the surface, this seems like an outrageous waste of cash.
posted by Joey Michaels at 11:32 PM on June 13, 2010 [1 favorite]
I'm just guessing that court time (including personnel fees), police time, paperwork, food (for while she's in jail), and a dozen other little costs probably added up to at least $250.
How is that in the state's best interest? I could be wrong, of course, and this could be a very cost effective way of recouping $250 (and, perhaps, it is for the debt collecting agency that doesn't have to foot the bill that the state does) but on the surface, this seems like an outrageous waste of cash.
posted by Joey Michaels at 11:32 PM on June 13, 2010 [1 favorite]
Well if this becomes a trend, then the next step is to find out how to fight it. I wonder what legal organizations would assist a person in this.
posted by psycho-alchemy at 11:43 PM on June 13, 2010
posted by psycho-alchemy at 11:43 PM on June 13, 2010
"How am I supposed to do that? And when I cannot pay, I will go back to jail for 90 days. The cycle will continue until I inevitably end up in a federal prison with the taxpayers responsible for my debt
That's an awful story, but I don't think that would happen. I don't think a federal judge would send her to prison over a debt to the jail in Phoenix.
posted by krinklyfig at 11:51 PM on June 13, 2010
That's an awful story, but I don't think that would happen. I don't think a federal judge would send her to prison over a debt to the jail in Phoenix.
posted by krinklyfig at 11:51 PM on June 13, 2010
So, taxpayers are footing the bill for the collection services. Great.
posted by krinklyfig at 12:07 AM on June 14, 2010
posted by krinklyfig at 12:07 AM on June 14, 2010
So, taxpayers are footing the bill for the collection services. Great.
Privatizing profits and socializing losses, you say?
posted by hamida2242 at 12:13 AM on June 14, 2010
Privatizing profits and socializing losses, you say?
posted by hamida2242 at 12:13 AM on June 14, 2010
Dr. Zira wrote: "But the problem sounds like these debtors aren't showing up to respond"
It's a little hard to do that when the service of process consists entirely of sending a first class letter to the person's "last known address", which likely isn't any good when you've just bought a six year old debt and choose not to attempt to get more current info than the database you get from the last not-quite-as-bottom-feeding debt collector.
Yet another reason to buy penny-ante debt. In many jurisdictions, physical service of process (and even certified mail) is not required if the dollar amount contested is low enough, just somebody's signature stating they mailed a copy of the suit.
Not that there haven't been documented instances of particularly scum-sucking debt collectors falsely claiming the target of their suits were properly served.
posted by wierdo at 1:35 AM on June 14, 2010
It's a little hard to do that when the service of process consists entirely of sending a first class letter to the person's "last known address", which likely isn't any good when you've just bought a six year old debt and choose not to attempt to get more current info than the database you get from the last not-quite-as-bottom-feeding debt collector.
Yet another reason to buy penny-ante debt. In many jurisdictions, physical service of process (and even certified mail) is not required if the dollar amount contested is low enough, just somebody's signature stating they mailed a copy of the suit.
Not that there haven't been documented instances of particularly scum-sucking debt collectors falsely claiming the target of their suits were properly served.
posted by wierdo at 1:35 AM on June 14, 2010
In place of commenting on this thread, I am instead going to quote from the transcript of Protecting Consumers in Debt Collection Litigation and Arbitration: A Roundtable Discussion, hosted by the Federal Trade Commission and Northwestern Law School’s Searle Center on August 5-6, 2009.
On the subject of sheriffs as process servers:
MR. BUCKLES: The debt negotiating companies actually tell the -- and the Internet -- "Don't take any service; don't answer your phone calls; don't answer letters; don't take any service." So that's a factor that needs to be considered in all of this, because it's a balancing.So, that's a taste of what the collection docket looks like these days.
MR. LYNGKLIP: You're jumping straight to alternate service and you're jumping over the pink elephant sitting in the room, which is what happens when the process server lies.
MR. BUCKLES: They should be prosecuted.
MR. MARKOFF: Send them to jail.
MR. LYNGKLIP: What does that do for the consumer, though? Sending them to jail and leaving this to the judicial system or to a prosecutor or to a DA -- how long did it take Andrew Cuomo to bring that suit that we just saw last week -- 100,000 judgments -- potentially bad judgments can go out.
MR. O'TOOLE: You need to tell them more about that in New York City.
MR. LYNGKLIP: I know what I read in the paper, and the basis of the suit is that there are potentially 100,000 judgments out there in the state of New York that are predicated upon nonpersonal service in the face of an affidavit of a process server. So before we even jump to alternate service as an appropriate means of -- on state-by-state basis of obtaining service and providing due process, the first problem that I see in my practice is I see people who have never been served and, in fact, are being served at bogus addresses or being served at times and places1 where they can demonstrate that they were not either at their homes or in their state or --
JUDGE MOISEEV: Are you suggesting that the judges aren't setting aside that service?
MR. LYNGKLIP: Oh, there are any number of judges who won't set that aside without a meritorious defense and without --
MR. BUCKLES: Not if it's not noticed. That's not -- that is not true. I'm sorry. If you don't have notice -- that's a constitutional right to have notice. Every judge -- every judge in the state of Michigan and in this country will set aside a judgment if a person did not have notice.
MR. LYNGKLIP: I know what due process says, and I know what the requirements are, and I don't think the focus should be on whether a judge is correctly applying the court rules that would allow it to set aside. I think that the judges are greatly overworked, and I think they are underresourced --
JUDGE MOISEEV: And underpaid.
MR. LYNGKLIP: -- and grossly underpaid, and I still see that this happens. But the problem is the process servers are themselves immune from an action under the FDCPA, and we have debt collectors who occasionally are appointing people that they know are a bad process server -- they know are bad --
MR. MARKOFF: No, no, that is not true. We are not looking to commit fraud. We collect debt ethically. We do not want to have invalid judgments. Do you know what it wastes in our time and resources five years down the road to have a judgment washed when you're in the middle of a wage-deduction proceeding and you have to go and explain to your client that you had bad service? We want good service. And the reason --
JUDGE MOISEEV: You do, but not everybody.
MR. LYNGKLIP: I'm not suggesting that that is the practice, but when it happens -- and we have had instances of attorneys in our state who have falsified service of process and were --
MR. MARKOFF: Attorneys who have falsified?
JUDGE MOISEEV: We did have a situation in Michigan.
MR. BUCKLES: He was disbarred, too.
JUDGE MOISEEV: No, he wasn't disbarred. He was suspended. I think it was 87 counts of contempt in regard to his falsifying proofs of service, and affidavits were substituted.
MS. WEINBERG: I would not -- I think that the judges will typically accept the affidavit of the process server over the client who comes in two years later when their wages are being garnished and who say, "Oh, I never got served," and they say, "Well, we have an affidavit, a sworn statement that says you were served."
MR. LEIBSKER: Judge Donnelly?
MS. WEINBERG: Judge Donnelly wouldn't do that.
MR. O'TOOLE: The issue of judges being underpaid, I think we can all agree that government employees generally are underpaid. But, sir, what is your docket like? I mean, I practiced in a courtroom a little bit back in the day.
JUDGE DONNELLY: I think the tubs -- Joe Panarese and I are well familiar with -- in the trial court and in collections, the tubs of default records are enormous. So you'll have sometimes, in a collection call, 300 to 600 default orders to go through. The difficulty I think that's raised by the New York case -- I read the complaint in that case, and it's a very interesting complaint -- is it documents that process servers by an audit conducted internally by the Court, which is something we don't have in Illinois, determined that process servers were claiming to have personally served up to 12 or 13 people simultaneously in different regions of the state. In the complaint, pages 6 through 9 are all these documented occasions of simultaneous service.
And I have the same attitude as many people here hearing all these complaints of "I wasn't served" at garnishment, that sort of thing, that these people are just making it up. But one day one of my colleagues, Judge Taylor, just took a stack of services from one process server, and this person claimed to be in areas 30 miles apart in the Chicagoland area within minutes. And we brought him in and the law firm in, and we said, "Is he Superman? How can he be doing this?" And he came up with an explanation that he was signing it for other process servers.
But that experience of seeing fraudulent service gave me a lot more skepticism for actual service of process and a lot more belief in what debtors were saying than I had previously. Previously I had dismissed it.
On the subject of sheriffs as process servers:
JUDGE MOISEEV: Our sheriff doesn't do process serving. They're too busy with their toys, their helicopter and their phone.Moving on to Minnesota:
MR. BUCKLES: I didn't say that. There's more default judgments but I don't think the percentage is any more.posted by [citation needed] at 1:42 AM on June 14, 2010 [14 favorites]
MR. BARRY: Well, I will tell you percentages have skyrocketed in Minnesota, particularly in Hennepin County. There's been numerous television stories and local newspaper clippings about how the Hennepin County court, which would be somewhat comparable to Cook County in Illinois, have been inundated with default judgments by the clerks. And the reason for that is very simple, because the laws have been designed by the collection -- with all due respect to the collection bar -- by the collection bar to benefit the collection bar.
We've got hip pocket filing in Minnesota, which allows collection attorneys to serve someone without filing a lawsuit with the Court. There's no judicial oversight and all the judges on the panel perked up about "What's our job?" Your job is marginalized in Minnesota; you don't have a job in Minnesota in a default judgment. An administrative default judgment in Minnesota, that's handled by the clerk. You can serve a lawsuit in Minnesota, never file it with the Court and garnish wages when you, as the attorney, the collection attorney, determine that that consumer is in default on that debt.
I think that being able to collect debts without any court intervention or any judicial oversight is absolutely -- it's counterintuitive to any sense of due process, in my mind. And as shocked as these judges are looking, I'm telling you that that's how it exists in Minnesota. You can file -- you can serve a lawsuit, never file it with the court, and the default occurs because the consumer picks up the phone and calls Hennepin County, calls the clerk of the Court and says, "Madam Clerk, I got served with this lawsuit, and it doesn't have a court file number on it." And the clerk says, "We don't have anything on file." You don't have anything on file because it was never filed with the Court. You initiate a lawsuit in Minnesota by simply serving the summons and complaint.
MR. MARKOFF: That's not the case in Illinois; I assure you.
JUDGE MOISEEV: You never have to file it?
MR. BARRY: Never have to file it.
MR. LERCH: How do you enforce it post judgment?
MR. BARRY: You simply -- if you want judicial intervention, if you want some kind of order -- you can take discovery without judicial order, but if you want some kind of judicial intervention, you can then file it.
MR. O'TOOLE: Is this unusual?
[indistinct shouting]
JUDGE MOISEEV: I sanctioned a law firm because they issued a garnishment -- they served a garnishment without it ever getting through the court.
Can we start by shooting legislators who pass laws that allow the Minnesota scenario when even a cursory glance shows that it is detrimental to everyone but the assholes who run collection outfits? I can't possibly imagine what benefit accrued to the lawmaker...ah.
posted by maxwelton at 3:01 AM on June 14, 2010
posted by maxwelton at 3:01 AM on June 14, 2010
MR. LYNGKLIP: I know what due process says, and I know what the requirements are, and I don't think the focus should be on whether a judge is correctly applying the court rules that would allow it to set aside. I think that the judges are greatly overworked, and I think they are underresourced --
JUDGE MOISEEV: And underpaid.
Nice one, Your Honour.
Actually, put a giant "SHITR" at the start of that transcript and it could be Ubu Roi as written by an early 21st-century bankruptcy lawyer.
posted by A Thousand Baited Hooks at 5:06 AM on June 14, 2010
JUDGE MOISEEV: And underpaid.
Nice one, Your Honour.
Actually, put a giant "SHITR" at the start of that transcript and it could be Ubu Roi as written by an early 21st-century bankruptcy lawyer.
posted by A Thousand Baited Hooks at 5:06 AM on June 14, 2010
We are hurtling headlong toward a very, very ugly breakpoint. I fear violence is in our near future. You simply can't keep treating politically powerless people like this before they start reaching for their guns.
posted by Thorzdad at 5:38 AM on June 14, 2010
posted by Thorzdad at 5:38 AM on June 14, 2010
That gun was seized already.
posted by a robot made out of meat at 6:00 AM on June 14, 2010
posted by a robot made out of meat at 6:00 AM on June 14, 2010
jail is not prison
Does any nation apart from the US make this distinction? As far as I understand it, we have cop shops, remand centres, and then prisons (AKA jails). Is this a federalist thing?
posted by pompomtom at 6:08 AM on June 14, 2010
Does any nation apart from the US make this distinction? As far as I understand it, we have cop shops, remand centres, and then prisons (AKA jails). Is this a federalist thing?
posted by pompomtom at 6:08 AM on June 14, 2010
Based on what I saw 20 years ago--industrial means of filing judgments on people: not new. Cursory or non-existent process serving: not new. Big agency would send big pile of double-spaced typed paper over to the Henn. County Government Center, one line-one debt, name, address, amount. Alakazam, they're all judgments.
What would be different today would be someone getting pulled over in a traffic stop over a $250 bad debt. Back in the day, that would never happen, unless there was something more serious involved, like child support, which gets a lot of political heat behind it. Or if it involved a bad check, at which point it's an actual criminal matter, not a civil one.
That's not to say that lawyers and others who essentially commit fraud related to process service shouldn't be punished--they definitely should, they're the ones who ought to be in jail.
posted by gimonca at 6:13 AM on June 14, 2010 [1 favorite]
What would be different today would be someone getting pulled over in a traffic stop over a $250 bad debt. Back in the day, that would never happen, unless there was something more serious involved, like child support, which gets a lot of political heat behind it. Or if it involved a bad check, at which point it's an actual criminal matter, not a civil one.
That's not to say that lawyers and others who essentially commit fraud related to process service shouldn't be punished--they definitely should, they're the ones who ought to be in jail.
posted by gimonca at 6:13 AM on June 14, 2010 [1 favorite]
Does any nation apart from the US make this distinction? As far as I understand it, we have cop shops, remand centres, and then prisons (AKA jails). Is this a federalist thing?
I don't think it is a federalist thing. Prison is a different place, where you are sent after a conviction for a felony, which is run by the state or the Feds. Jail is for anything less, and run by the county.
posted by gjc at 7:27 AM on June 14, 2010 [1 favorite]
I don't think it is a federalist thing. Prison is a different place, where you are sent after a conviction for a felony, which is run by the state or the Feds. Jail is for anything less, and run by the county.
posted by gjc at 7:27 AM on June 14, 2010 [1 favorite]
Let us know when they ban kissing in public.
Utah, but still.
posted by Evilspork at 7:41 AM on June 14, 2010 [1 favorite]
Utah, but still.
posted by Evilspork at 7:41 AM on June 14, 2010 [1 favorite]
Does any nation apart from the US make this distinction? As far as I understand it, we have cop shops, remand centres, and then prisons (AKA jails). Is this a federalist thing?I don't think it is a federalist thing. Prison is a different place, where you are sent after a conviction for a felony, which is run by the state or the Feds. Jail is for anything less, and run by the county.
This is mostly correct. In most states, though, the determining factor is not exactly the type of underlying crime, but the sentence. Non-violent felony convictions (e.g., a large enough quantity of marijuana to be considered PWID - possession with intent to deliver - in states that have rebuttable presumption or ipso facto statutes) quite often result in a sentence of less than a year, served in a local jail. Even some low-level violent felonies (e.g., assault with a deadly weapon, falling short of assault with intent to cause great bodily harm) may get similar treatment. But I'm highly confident that no state permits a prison sentence for a misdemeanor conviction of any kind.
posted by thesmophoron at 7:52 AM on June 14, 2010
"How am I supposed to do that? And when I cannot pay, I will go back to jail for 90 days. The cycle will continue until I inevitably end up in a federal prison with the taxpayers responsible for my debt."
That's an awful story, but I don't think that would happen. I don't think a federal judge would send her to prison over a debt to the jail in Phoenix.
Maybe not, but given that the US Supreme court has held that police are allowed to lie to suspects, wouldn't the sheriff have a strong incentive to tell arrestees that's what will happen?
posted by fogovonslack at 10:38 AM on June 14, 2010
That's an awful story, but I don't think that would happen. I don't think a federal judge would send her to prison over a debt to the jail in Phoenix.
Maybe not, but given that the US Supreme court has held that police are allowed to lie to suspects, wouldn't the sheriff have a strong incentive to tell arrestees that's what will happen?
posted by fogovonslack at 10:38 AM on June 14, 2010
As a native and current resident of Illinois, to those of you who think that my state is a wretched hive of scum and villainy, I have to say... you're absolutely right. But there's hope. Back in the early Aughts, a couple of hospitals in Urbana (home of the University of Illinois), Carle and Provena Covenant, used a legal tactic called "body attachment" to throw people who owed them money into jail if they missed a court date. Then, the Wall Street Journal--of all media organs--did a front-page article [link is to the local paper, not the WSJ, which of course puts its articles behind a paywall] about it, and guess what? Provena and Carle lost their tax-exemption status! (They've been fighting to regain it since.)
posted by Halloween Jack at 11:25 AM on June 14, 2010
posted by Halloween Jack at 11:25 AM on June 14, 2010
And then there's stuff like this. All this profiting off of the misery of others..
posted by Danila at 11:37 AM on June 14, 2010
posted by Danila at 11:37 AM on June 14, 2010
zardoz : Why doesn't garnishing wages work in these situations?
Garnishing would make far more sense, but the hammer of choice is incarceration, and as a result, every problem we encounter gets pounded down with it.
Centuries from now, when historians are diagnosing the fall of the American empire, this is one of the main things that they are going to point to.
posted by quin at 2:30 PM on June 14, 2010
Garnishing would make far more sense, but the hammer of choice is incarceration, and as a result, every problem we encounter gets pounded down with it.
Centuries from now, when historians are diagnosing the fall of the American empire, this is one of the main things that they are going to point to.
posted by quin at 2:30 PM on June 14, 2010
So debtors prisons are here, mumps and measles outbreaks are making a comeback due to shitheads not taking their vaccines, and in several fields (media, telecomm, banking) mergers have consolidated entire markets into a small number of huge conglomerates that control everything -- wow, it looks like the 19th century is making a comeback. I guess I'd better go invest in buggy whip makers or something.
posted by Rhomboid at 3:56 PM on June 14, 2010
posted by Rhomboid at 3:56 PM on June 14, 2010
People have been going to jail for debts for a long, long time.
It's something of a feminist issue
My own run in with possible jail time came after Child Support Collections entered the garnishment order incorrectly into their computer. They withheld 3x the amount they were supposed to. Since I didn't make enough - my entire paycheck had been garnished - to pay the mistaken amount they sent a letter warning of my impending arrest if they didn't get their money soon.
Let me tell you that when the computer has you flagged as a deadbeat dad, you will get no respect whatsoever from the nice ladies at CSC no matter how polite you are. It took several days of expensive long distance phone calls, but I did finally get it resolved. In the end, they did not refund what they had taken, but credited me with paying in advance. After I got custody and no longer had to pay support, I never did get a refund - the state kept the money.
posted by Pogo_Fuzzybutt at 10:06 PM on June 14, 2010
kyrademon, there has to be more to your friend's story than that. If the sherriff charged everyone $2000 for a night's stay in tent city, and then threw them back in jail when they couldn't pay, well, he'd have to build a lot more tent cities.
I did a bit of looking, and I found this survival guide to tent city by a woman who served time for a DUI, and then there's this snopes article, and neither mention any $2000 charge to inmates.
Absence of evidence isn't evidence of absence, but still, I'd love to hear a bit more about how she managed to rack up $2000 in charges for a single night's stay. Perhaps the charges were fees or fines from the court?
posted by math at 7:50 AM on June 15, 2010
I did a bit of looking, and I found this survival guide to tent city by a woman who served time for a DUI, and then there's this snopes article, and neither mention any $2000 charge to inmates.
Absence of evidence isn't evidence of absence, but still, I'd love to hear a bit more about how she managed to rack up $2000 in charges for a single night's stay. Perhaps the charges were fees or fines from the court?
posted by math at 7:50 AM on June 15, 2010
We are hurtling headlong toward a very, very ugly breakpoint. I fear violence is in our near future. You simply can't keep treating politically powerless people like this before they start reaching for their guns.
The economic reality is that the state can't afford to take on the costs of the collection agencies for too long in this economic climate. I think it's only a matter of time until budget constraints force some changes.
posted by krinklyfig at 3:27 PM on June 16, 2010
The economic reality is that the state can't afford to take on the costs of the collection agencies for too long in this economic climate. I think it's only a matter of time until budget constraints force some changes.
posted by krinklyfig at 3:27 PM on June 16, 2010
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Nice of them to tell us why.
posted by cjorgensen at 7:44 PM on June 13, 2010