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September 20, 2012

Can I go to jail for not paying a debt in Georgia?

Posted by Dan Dewoskin in Articles, Debt Collection Defense, Personal Injury Blog

Tags: debtors prison, jail

Debtor’s Prisons and “Attachment Bonds”

In Georgia, you will not go to prison or be held criminally liable for owing money. This is true provided that the debt is not the result of some criminal scheme or owed as restitution for injuries or damages caused by a crime for which you are convicted. This means that if you owe money on a credit card or on some account or note that you borrowed on, you can be sued, but not jailed in the event you cannot pay.

In some states, such as Missouri, there are provisions apparently in the law that allow for creditors to sue you and, in the event you fail to answer or show up, actually take steps to have you taken into custody. See this article. This is outrageous and should offend the conscience of every American. In Georgia, if you fail to appear in court or answer a lawsuit, the party suing you gets a default judgment. They win the case, which is something extraordinary, but that is it. They can garnish or collect their judgment in any legal way, but they cannot have you locked up.

In Missouri, and in some other states, if you are sued and fail to respond, as opposed to just awarding the party suing you a judgment, the court will often entertain and sign an attachment bond or order. This order doesn’t attach the defendant’s property, but the defendant himself or herself. The sheriff then goes out and locks up the defendant, who may have not answered for very understandable reasons such as a failure to having been properly served or perhaps some legitimate and providential cause. The defendant is then locked up and held with some purge amount set for his or her bond. This “purge” amount is likely the amount the creditor plaintiff was suing for. Thus, debtors prisons, a concept that should be foreign to us as freedom-loving Americans should certainly not be permissible under the law, are able to vex and oppress a host of people whose “crime” or “offense” may have been to do little more than find themselves unemployed, broke, or homeless.

Debtors prisons are bad for everyone. They burden the taxpayers, law enforcement, and the courts by needlessly shifting the monetary and time expenses to the system when the creditors and third party debt buyers took the risk in the first place. They criminalize routine civil collection actions and further disadvantage a population that is already outgunned when it comes to defending themselves in court. After all, criminal defendants have constitutional rights that require the appointment of counsel when they cannot afford counsel. People being sued on debts and then subject to these attachment bonds do not have such access to counsel routinely. Volunteer lawyer foundations and legal aid offices are quite often not equipped and staffed to be able to take on these representations. These people are poor, but often not poor enough or have enough at stake to avail themselves of any “free” legal services.

So, the taxpayers then foot the bill for jailing these people for their failure to file an answer. The creditors may not see any problem with this system. To them, the jailing comes because the debtors failed to respond and come to court to talk about the debt. This is nonsense. Fortunately, in Georgia, our courts recognize that not answering a lawsuit has a serious consequence, a default. The other party wins by forfeit. It is not contempt to not answer a lawsuit.

This brings up an interesting point, however. In Georgia, in some jurisdictions, after a default judgment or any judgment, for that matter, the prevailing party may send out post judgment interrogatories or post judgment discovery. These are usually a series of questions designed to finding out where a debtor-defendant banks, works, or has property that might be subject to collection to satisfy the newly-acquired judgment. If a debtor-defendant fails to respond to these inquiries timely (within 30 days), the judgment holder then files a motion for contempt with the court.

In some jurisdictions, the courts will then hold a motion hearing on the contempt issue. If the debtor-defendant still fails to respond, a warrant may be issued by the court and the debtor-defendant may later find himself or herself subject to arrest for contempt of court. As I mentioned, this only happens in some jurisdictions. In others, the judges will see this as just another way to have a debtor-defendant locked up for owing money that they cannot afford to pay. Having a person held in contempt so that they can be cross-examined as to how much money he doesn’t have doesn’t really serve justice and just clogs the system with needless hassle and expense.

It is also foolish to have purge amounts on these contempt cases because even when a debtor-defendant’s family member steps up to make the bond to get his or her loved one out of jail, the debt is not being satisfied by the party responsible for it. This is a perversion of justice and abuse of process. It can and does happen in Georgia, but not on the same scale as what appears to be happening in Missouri according to the article cited above.

As always, if you are a debtor-defendant, the best rule of thumb is to be vigilant about your credit and the statuses of various debts. Promptly respond to any lawsuits with an answer, even if it is just a general denial. Study what your rights are in the particular jurisdiction in which you live in or are being sued in. When practical and possible, hire competent counsel. Many creditors will not hesitate to take unfair advantage of any means that are available to them. The best way to avoid being a victim is to be aware and knowledgeable. These debtors prisons are reprehensible, but with diligence and effort, you can avoid becoming an inmate just because you do not have the means to pay a debt (especially one you don’t legitimately owe!).

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Author: Dan Dewoskin