Although body attachments are identified with the Dickensian concept of debtors’ prisons, the process to obtain them is still legal. In Maryland, creditors can use the body attachment process to compel payments from a judgment debtor using this civil arrest process. Once a creditor has a judgment against the debtor, a creditor can require the debtor to appear in court by serving a court order for an oral exam. If the debtor fails to appear at the oral exam, a creditor can issue a show cause for the debtor to demonstrate why they failed to appear for the oral exam. If the debtor again fails to appear, the creditor has the legal right to request the court issue a body attachment and detain the debtor for contempt of court.
Not only does jailing someone for a consumer debt seem unfair, it also imposes unnecessary burdens on our judicial system and detention centers. Instead of asking our courts, law enforcement and court commissioners to prevent and punish actual crimes, the body attachment process requires them to facilitate the collection of private debts and jail those who cannot purge the contempt order. The process also raises concerns about due process and the impact on low-income communities.
Although creditors have the right to request body attachments, the process often has dire consequences for the debtor. Because the body attachment is a civil legal matter and not a criminal action, there is no right to counsel and the debtor can land in jail for inability to pay. This tactic has its worst impact on the very poorest, often elderly or disabled Marylanders whose only income comes from public benefits like Social Security.
Normally, public benefits can’t be touched by most consumer creditors; however, if a creditor requests a body attachment, this loophole lets a creditor force a debtor to pay to be released from jail with income that otherwise cannot be used to pay these debts. People who are arrested in the evening may spend a night or weekend in jail which can have long-term negative consequences including lost employment or unstable housing.
Why don’t people show up to court?
Assuming a person is properly served with a complaint, oral exam and show cause, many wonder why these consumers don’t show up to court. Successful service is an issue to examine in and of itself. Many debtors never receive notice of these proceedings. Service was never successful, perhaps because the debtor has moved and the creditor doesn’t have correct contact information or at worst, issues of “sewer service” might arise, meaning a server tosses the papers into the sewer and does not attempt to deliver them to the proper party.
If the prevalent service issues have been resolved, there are still significant barriers for the debtor. The average person wouldn’t make the connection that they could be arrested and jailed for failing to show up to a proceeding they don’t understand, especially when they cannot pay and the creditor already has the judgment. Creditors’ attorneys and other professionals view failure to appear as a serious violation of the judicial process; however, laypeople may be too frightened or confused to contact the attorneys to explain their circumstances.
Additionally, when faced with work, public transportation or child care issues for a proceeding they don’t understand, common sense dictates they should not appear.
Why many creditors have already opted out
Jailing a poor person and depriving them of their fundamental liberty rights because they can’t pay their bills is anathema to our shared principle of fairness. The vast majority of creditors, including banks, credit card companies, and debt buyers don’t use the body attachment process because it is ineffective and can create significant negative publicity for the creditor. It’s not even a particularly cost-effective mechanism for many creditors, who avail themselves of other methods of collecting that don’t involve detaining someone for an unpaid bill. The court imposes costs to request the oral exam, the show cause hearing, and the body attachment. Further, creditors incur service of process costs at the oral exam and show cause stages.
While we as members of the bar seek to uphold the integrity of honoring court orders in all circumstances, we think it’s important to do a further analysis. While some might believe this is just an issue of debtors willfully ignoring a court order, the reality is that for most individuals, they are trying to navigate a confusing judicial process unrepresented, without clear language or guidance of what or how they can try to resolve the issue and with no understanding that a consumer debt matter could place someone in jail.
Instead of trying to improve a flawed system that fails to appropriately put debtors on notice of all of these elements in order to uphold the integrity of court orders, we think the better route is to end a practice that doesn’t make sense for creditors, our judicial system or for our society.
Our legal system has evolved since the time of Dickens. Nationwide and within Maryland, advocates and legislators are pushing to end the body attachment process. The Maryland General Assembly will likely look at this issue again in 2018, particularly in light of the major Baltimore Sun investigative report this summer about large landlords utilizing this process to collect past due rent. Now is the time for our General Assembly to act and put an end to a process that results in modern-day debtors’ prisons.
Editorial Advisory Board members James B. Astrachan, John Bainbridge Jr., Wesley D. Blakeslee and Arthur F. Fergenson did not participate in this opinion.
EDITORIAL ADVISORY BOARD MEMBERS
James B. Astrachan, Chair
James K. Archibald
John Bainbridge Jr.
Wesley D. Blakeslee
Arthur F. Fergenson
C. William Michaels
H. Mark Stichel
Ferrier R. Stillman
The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.
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