The following questions were submitted to John Roska, an attorney/writer whose weekly newspaper column, "The Law Q&A," ran in the Champaign News Gazette.
A friend went to jail on a warrant in a collection case. How is that possible? I thought there was no such thing as debtor’s prison.
Although there’s no debtor’s prison, it’s possible to wind up in jail in a collection case. But, not because you owe money, or can’t pay it. Jail can only happen if you’re able to pay, and refuse to, or if you miss a court-ordered court date.
First, understand that neither of those two ways of going to jail can happen until after a judgment has been entered against you. A judgment can only be entered against you if you’ve gotten served with a summons and a copy of the lawsuit, and you:
- Didn’t show up in court (default judgment);
- Showed up, and consented to a judgment; or
- You contested the case, had a trial, and lost.
Therefore, pre-judgment, you can’t go to jail. That’s because nothing pre-judgment is a “must-appear” date, and until there’s a judgment, you can’t be ordered to make payments.
The summons you get before any judgment can happen is really just an invitation to appear. It says you “may appear”—not that you “must appear.” If you blow off a summons in a collection case, you just lose by default. The other side wins, and gets a judgment for whatever they wanted, but you can’t go to jail.
Post-judgment, though, all court dates are “must appear.” If you blow off a notice saying you must appear, you could be in contempt of court. To figure out if you are, and to make sure that you get to court, a warrant gets issued for your arrest.
Technically, it’s a “body attachment,” and not really an arrest warrant. But the effect on a debtor is the same. When found, they’re taken into custody, processed, and held until they either post bond or go to court for the hearing that they missed.
Body attachments are the main reason people think jail is possible in a collection case. It’s not because the debtor owes money, but because they missed a court-ordered court date. That distinction, however, like the one between body attachments and arrest warrants, gets lost on the general public.
The most common post-judgment court dates that debtors miss are Citation hearings, or Rule to Show Cause hearings. Both are “must appear” court dates. In Champaign County, the local rule requires that Citations and Rules say: “Failure to appear at this hearing may result in the issuance of a warrant of arrest."
A Citation to Discover Assets can be served on a debtor to try to enforce a judgment (i.e., post-judgment). It orders them to come to court and answer questions about their financial situation. As the name suggests, it’s for creditors to discover assets that can be paid on the judgment.
A Rule to Show Cause happens if a debtor hasn’t paid as ordered or fails to appear on a Citation to Discover Assets. A judgment is not a payment order, so a Rule only happens if someone was specifically ordered to pay, and didn’t. The Rule orders them to come to court to explain why they haven’t paid, or why they haven't shown all of their financial information to the judgment creditor.
Besides a body attachment for failing to appear when ordered to, the only other way debtors go to jail is if they were ordered to pay, can pay, and won’t. That’s willful contempt of court, which gets determined at a Rule hearing. Then, the contumacious debtor can go to jail until they pay as ordered.
Updated: November 2017