I can’t tell you how many times I’ve said or written that you can’t go to jail over a debt. In general, no, there are no debtor’s prisons in the U.S. But a little article on debtor abuse in the Boston Globe (please stay alive, OK?) made me sit up and take notice. Apparently, there is a little loophole (at least in Massachusetts) that may prove me wrong about never going to jail over a debt.
In Massachusetts, under the law, not paying a judgment can be considered contempt. A judge can fine a debtor $200 for contempt or put him in jail for up to 30 days. The Boston Globe article described how Marc Marcelin, a 53-year-old Haitian immigrant, was brought to court in handcuffs over a $2000 debt and had a judgment granted against him that very day. When he asked if he could pay the debt, he couldn’t and spent 28 days in jail. Wow. Is this even legal? Mr. Marcelin apparently couldn’t find out as he could not afford an attorney – and in civil cases, you do not have a right to free court-appointed attorney.
On the face of it, debtor’s prisons don’t seem to make sense, as how many people in jail can earn enough money to repay their debts? Would fear of jail make people pay up faster? I’m no criminologist, but I think that people fall prey to human folly like overspending more often than not, even if it has gotten them into trouble before. Some people never learn.
My former stance that you can’t go to jail for not paying your debts was based on the following facts:
- Under the Fair Debt Collection Practices Act, consumers are protected from debt collectors who use threats of jail to blackmail debtors into paying their debts. As a matter of fact, one collection firm was just shut down for such fraudulent practices.
- Collectors can absolutely not send around the sheriff to take you to jail if you don’t pay your debts to them, or at least the debts they say you owe. Collectors also cannot threaten to sue you if they have no intention to do so (although this is tough to prove in court). Here are more of your rights when dealing with collection agencies.
- Until now, I had not heard of any instance where some one lost in court over a debt and went to jail. Sure, you can get a lien placed on your house, you can have your wages garnished and even bank assets frozen, but at least you’re not spending time in the slammer.
Until now, I thought that even if you were sued in court for a debt and you lost, you could still not go to jail. Sure, you can get a lien placed on your house, you can have your wages garnished and even bank assets frozen, but at least you’re not spending time in the slammer. This Boston Globe article has me shaken a little.
Has anyone else been subject to this kind of abuse? Please leave a comment and tell us.
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I believe, if you are facing criminal contempt of court, even in a civil forum, you have the right to a lawyer. At least, that was my experience in CO family court. One should also get an advisement hearing on any criminal contempt issue (in CO at least). Your example here shows how judges often disregard the law and procedure. Even better than a lawyer…read the statutes yourself and know how to protect your rights from an increasingly fascist court system. Judges often don’t like Pro Se defendants and will roll over them in the name of “judicial efficiency”. You MUST get a statement on the record asserting your rights or due process violations, or the judge can do nearly anything he/she wants.
Criminal court, yes, but most debts are handled in civil court. You don’t have a right to an attorney in civil court.
I read up on this case about Marcelin. It said that Marcelin failed to show up to court twice. So I am wondering if he would have went to jail if he showed up the first two times.
http://www.boston.com/news/special/spotlight_debt/part2/page8.html
Just stumbled upon your website and I think it is very helpful. After an investigation, are the credit reporting bureaus required to supply the consumer with the evidence which substantiate the results?
@Laurese – no, just the methods used.
@Amar – good point.
Yes you can go to jail for Contempt of court. WI—read this.
http://www.kohnlaw.com/site_uploads/newsletter/newsletter22_1.pdf
Having dealt with this law firm personally—they will do it! I’ve sat through motions where they petitioned for debtors arrest after debtor failed to show for hearing on assets and contempt of court for not paying a judgment.
Sure, there are many ways, in WI state law, to screw collection attorneys before this point, (filing a 128 amortization petition being one of them), but the legally ignorant CAN BE ARRESTED AND THROWN IN JAIL.
The system is only accessable to the educated and 99 times out of 100 the pro se’ is not educated enough to stop BOTH jail or paying of the judgment. Many times they pay judgment to avoid the contempt jail time.
According to the story Mr. Marcelin stole the ladies money. After 2 days he decided not to call the lady back, apparently tried to play the same game w/the judge and He went to jail and he still owes the money. If that was my mom he took the money from, I would be pretty happy with the outcome. This case really should of been handled in a criminal court for fraud. Judges have the power to put you in jail for chewing gum in there courts in the name of contempt. He obviously wanted to make the headlines and he did, Beware of this judge!
This site is a godsend. Thank you very much for creating it. I am in the process of ordering all of your products. I appreciate your time and effort. I just came across another case. A lady had a warrant put on her door because she owed some student loans and she was in default. I believe the it was the department of education. As opposed to Sallie Mae. Anyway it was a warrant for her arrest and she wasn’t home. The warrant was because she failed to appear in court the first time. I have a more successful student loan story but I will find the appropriate forum for that. Kristy, that tip is good to know, thank you.
I have to say to Amar. I think you’ve got a valid point here. I don’t think that he went to jail so much for his debt as the fact that he didn’t show on previous dates. I think the debt is what is the focus though…
Thank you for sharing!
A significant percentage of people in local jails are there for not paying a financial debt called “child support.”
I have no children and am not a lawyer, but I’ve seen how some mothers manipulate the system to get excessive and unjust child support awards. If the father cannot afford to pay them (unemployment, etc) they go to jail!
How they are supposed to pay from jail what they could not afford to pay out of jail defies logic.
In cases where female parents walk away from their their children and leave the father holding the bag, a relatively far smaller percentage of these women are sent to jail.
There seems to be a lack parity when it comes to this area of law. Even though these are financial debts, hundreds of thousands of men have been jailed for not being able to pay them.
Thanks for putting together such a great website, Kristy!
@ED – Hmmm…the child support angle. I haven’t thought about that aspect before. Maybe it would make an good topic for another post.
Yes, debtor’s jail exists for non payment of child support! The myth of the deadbeat dad is pervasive and society allows crucifixion of Dads. (The vast majority of them are broke, not deadbeats) In fact, for those women who have to pay child support, they are more than 4x likely to default on payments than the men are. Courts rarely lower CS for Dads, in fact, I was unemployed and on disability and was unable to get it lowered!
I have a similar issue to the main topic maybe someone can answer. On Contempt of court for failure to pay attorney fees: If the Judges Order to pay fees is motioned for, approved, and later, the Order is “Reduced to Judgment” can the court still enforce a new contempt motion against the original order? (I had one atty. say no, that the original order no longer stands, but another disagreed). I actually got contempt motion in this situation dismissed w/ prej. but I never got the answer to this question. I think this outcome is based on whatever the Judge was smoking this morning ….
@Greg – I don’t know the answer to this, but I’ll try and find out.
Here is my situation. I’m a Brazilian citizen and have been living in the U.S. since December 2005. I make $147,000/year working for a high-tech company in the Silicon Valley, CA. The Company I work for is going through a restructure and I was told I will be laid off in two weeks. Since I’m in the U.S. under a work visa, in practical terms, I’m supposed to leave the country within 30 days after being laid-off (that’s it!). The problem is I have $47,800 in credit card debt and loans and I also owe $33,000 on a BMW I bought last year. That said, at very high level, I owe approximately $81,000. My savings are around $12,000 and I have no assets (other than the car I just mentioned) in my name. No need to be an expert in rocket science to conclude there is no way I can pay my debt off. Actually, after moving back to Brazil I will have to fight for a job. I’m 45 year old male and finding a job at this point won’t be easy. Assuming I never pay my debt off, I have a few questions: (i) Can I just abandon my car in the garage of my apartment complex?, (ii) Is there a way collectors will locate me in Brazil (in theory, credit card companies don’t know my nationality), (iii) do I run the risk of being arrested if I try to re-enter the U.S. in the future? I’m really scared. Regards.
Hi Alex,
I’m sorry to hear about your job. I don’t know about being arrested but I think you should also post your question on my fico.com. There are many people there who may have an ideal what you can do. I would try to sell my car rather than just leaving it in the garage. You could even turn the car back in.
Here is my problem. I have a cell phone bill from years 7 years ago or so. I cant pay. I am a mother of 2 kids and is not working dure to the economy. One of my children is getting put on medication for her medical problem. I cant pay anything on this bill due to medical bills. They are sueing me and say i can go to jail. Is this true??
Yes, attorneys will file a motion of contempt/nonperformance (not paying attorney fees awarded in a divorce proceeding) and will petition the judge for arrest. My friend was taken into custody this morning and will not see a judge until tomorrow afternoon. What happens then? I don’t know. It does seem a bit harsh and in the end, his kids will pay the penalty.
Kristy Welsh
Question
you said
[In Massachusetts, under the law, not paying a judgment can be considered contempt. A judge can fine a debtor $200 for contempt or put him in jail for up to 30 days.]
What happens if you get the Judgement in Massachusett but your funds are protected by Federal Law? Social Secuirty for example. Can the court still fine you or send you to jail. I don’t live in Massachusett but I was currious.
@Greg You are wrong on the right to have a lawyer for Civil action. On NPR I heard that when a dead beat dad goes to court he doesnt have the right to an lawyer because it is a civil matter and the constitution states for Criminal. It is something that is being appealed.
Jonathan, you are right.