Many people call our office after receiving a court summons regarding a debt. They are understandably scared about the court process and the threat of having their wages or bank account garnished. However, many are also very worried that if they fail to show up at this court hearing, a warrant will be issued for their arrest. The First thing we need to make clear–you cannot be placed in jail for the failure to pay a debt! Congress abolished debtor’s prisons in the 1800s. However, you can be placed in jail for failing to appear in court. The court may issue what is called a bench warrant for failure to appear, but it will take several failures to appear before they are issued.
When you are served paperwork for a court hearing, the first thing you should do is look to see what is at the top of the paperwork. Usually, if this is your first time getting court paperwork, this document will say “petition” on it near the top. A petition is the first document filed to start a lawsuit over a debt. The petition will usually set a hearing date, or if the judgement is for a larger amount, may give you 20 days to file an answer to the petition. At a hearing, you may attend and tell a judge whether you owe the debt. If you say that you owe the debt, a judgment will be granted for the creditor that you owe money to. If you say that you do not owe the debt, the judge may ask you why you do not owe it, and will usually set another hearing for you and the creditor to try to prove one way or the other if you owe it. Filing an answer with the court means filing something saying whether you owe the debt and giving an explanation. You may also file an answer prior to your hearing date. Filing an answer will generally result in another hearing date being set, and with the creditor’s attorney sending you more paperwork to fill out and send back. Whether or not you have a valid defense is something you can talk to an attorney about.
If you fail to appear at this first hearing and have not filed an answer, a judgment will be granted just as if you had appeared and said it was your debt. There is no other consequence for failing to appear. However, once a judgment is obtained, the creditor can now call you to court for a hearing in aid of execution of the judgment. If you get paperwork that says “hearing in aid of execution” at the top, then you do need to attend unless the creditor waives your need to appear. This hearing is so that the creditor can get information from you about your finances, and you are required to tell them about your financial situation, such as where you work, how much you make, and where you bank.
If you fail to appear at the Hearing in Aid of Execution, the creditor may ask for a “hearing to show cause” to be set. This is a hearing where you come and explain why you failed to appear at the previous hearing. If you appear at this hearing, explain why you missed the hearing, and answer the creditor’s questions, then the issue of you missing court is resolved. However, if you fail to appear at the Hearing to Show Cause, the creditor may ask for a bench warrant to be issued. The judge can also issue a bench warrant, even if the creditor does not ask for one. Generally, judges will set a bench warrant for $200 or $500, or the amount of the judgment if it is lower than $500. Occasionally judges will set the bench warrant for a larger amount.
What happens next varies somewhat based on local practice. Once a bench warrant is issued, a police officer or sheriff can come arrest you and put you in jail until you pay the bench warrant off, or until the next hearing on your case. If you pay the bench warrant off, you must appear at the scheduled hearing, or another bench warrant can be issued. If you cannot pay the bench warrant, you are escorted from jail to the hearing, and released after attending and answering questions. However, many higher-population counties do not seek out people with bench warrants because their police force does not have the resources to seek out so many people individually. In these counties, bench warrants are more likely to be executed when you are pulled over for a traffic violation or if police are called to your house for another reason. Any money paid on the bench warrant is applied to your judgment balance. In some counties the court will allow people picked up on bench warrants to be released pending another hearing within 24 hours even if they are unable to pay.
As you can see, it is a lengthy process to request a bench warrant, and you must fail to appear at multiple hearings. It is important to note that many collections attorneys use this process to have warrants issued so they can force you to make a payment and make you appear at future hearings. They have the system for having you forced to appear in court almost automated.
If you have judgments that you are worried about or debts that you cannot afford to pay back, it may be time to contact a bankruptcy attorney to discuss your options. At Coons and Crump we are solely focused on consumer bankruptcy cases and we would be happy to discuss your issues. Please contact our office at your convenience for a free consultation.