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Rules change aims to prevent unknowing debtors from facing arrest

Notices from creditors must describe risk of 'body attachments'

The Court of Appeals enacted a piece of consumer debt collection reform earlier this month when it made it harder to have someone arrested for failing to show up at a hearing.

After a judgment is issued, creditors can request a “body attachment” be issued for a debtor who fails to appear for a hearing on their assets. The debtor can later be arrested and spend days or weeks in detention, but consumer advocates say some people with body attachments did not even know they had been summoned to court.

Under the new rules, approved May 16 and effective July 1, a notice to appear sent to a debtor must clearly inform the debtor that he or she could face a body attachment and subsequent arrest for failure to appear. A creditor must also show that the debtor was personally served with the notice or that he or she is actively avoiding being served before a body attachment can be issued.

Regular rules for service allow the notice to be left with another adult in the debtor’s household, which created situations in which the debtor was not aware of the court date.

“I think it’s going to significantly reduce the number of people who, one, get body attachments in the first place and, two, that don’t know that they are facing a body attachment,” said Amy Hennen, a housing and consumer law attorney with Maryland Volunteer Lawyers Service.

Hennen said that body attachments are not necessarily common but that some creditors do request them. Maryland cases referenced in a 2018 national study by the ACLU often involved body attachments in cases worth less than $1,000. Hennen said creditors often do not even recoup what it cost them to file the necessary motions.

“I think it’s wonderful that the rules committee has decided they want to reduce the number of body attachments because they believe it’s not a kind practice,” she said.

Retired Court of Appeals Judge Alan M. Wilner, chair of the Standing Committee on Rules of Practice and Procedure, said the committee began looking at the body attachment issue in several contexts last year but ended up changing the rules in the consumer debt arena after consumer advocates and creditors’ rights advocates agreed on the changes.

“It’s a problem that is real for the people who are actually picked up,” he said. “It’s a real problem for them and hopefully we solved it.”

Debra Gardner of the Public Justice Center said that though she and others wanted the committee to eliminate the use of body attachments completely in consumer debt cases, she hopes the rule change will curb the abusive use of the tool.

“There’s enough creditors who, for whatever reason, want to do it that it kind of hangs out there like a terror tactic,” Gardner said. “We’re hoping that judges will sort of see it for what it is and restrain the use of it.”

‘Nimble, collaborative process’

Legislation to restrict the use of body attachments was introduced in the General Assembly 2018 but stalled in committees, according to Del. Erek L. Barron, D-Prince George’s. Then it was suggested the change be made through the judiciary’s rules committee.

“It’s really one of those lessons that it doesn’t always take legislation to accomplish a policy goal, particularly when there’s concurrent or joint jurisdiction over an issue with the judiciary,” Barron said. “I’ve really got to give it up to the judiciary, (for a) very nimble and collaborative process that can have the same effect as legislation.”

Barron said that the creditors were “right there at the table” during discussions and that there was a great deal of consensus.

Gardner said Wilner and the committee take the role of the courts in creating fair procedural rules seriously and have been paying attention to abusive debt collectors.

“I wasn’t surprised we were able to work out something that both consumer advocates and creditors’ advocates … can live with for the time being,” she said. “I think what we now need to see is whether that really does solve the problem of the types of abuses we were hearing about on the old rules.”

Hennen agreed that the next step will be waiting to see how the rule change works.

“Until we can get to a point that we can fully eliminate body attachments, we may have done as much as we can in the immediate future,” she said.

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One comment

  1. what will this do to the people who are owed money??? This article forgot about that perspective