One of the most troubling cases that I’ve seen in a long time involved a report of a mistaken identity body attachment arising from a small claims court case in Gary City Court, a small claims case in Lake County, Indiana (near Chicago). We have seen bench warrants issue in Gary City Court for debts as trivial as failure to return a rented videotape. What is a body attachment? Effectively, a body attachment is an arrest warrant. Can you be sent to jail for not paying a small claims judgment?
Both federal and state law prohibits imprisonment over a civil debt. In the federal law, 28 USC 2007 prohibits imprisonment for failure to pay a debt. In state law, Article 1, Section 20 of the Indiana Constitution states:
Debts–Imprisonment ExemptionThe privilege of the debtor to enjoy the necessary comforts of life, shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale, for the payment of any debt or liability hereafter contracted: and there shall be no imprisonment for debt, except in case of fraud.
Despite these laws, people are arrested for failure to pay civil debts fairly frequently. This is done under the auspices of civil contempt. Contempt is an ancient doctrine allowing, among other things, people to be detained if they fail to show up to court proceedings as ordered. In the context of civil debts, “body attachments” or a court order to seize a person, are sometimes issued when a civil judgment defendant fails to show up for a “proceeding supplemental”, that is a scheduled court hearing to determine what assets are available to pay a judgment. Consequently, the order of arrest is not for failure to pay the debt. It is for failure to show up in court. This may be a distinction without a difference though in cases where the judgment defendant doesn’t get the order to appear, doesn’t understand the order to appear, or can’t get to the place they are ordered to appear.
Rarely does the court send someone out to get you if you have a body attachment ordered over a civil judgment. Instead, what is more likely to happen is the order gets logged into the computer system of a local law enforcement agency, and if they stop your or arrest you for something else, the outstanding bench warrant pops up, and the next think you know, you are detained in jail for that video you didn’t return, or MAYBE didn’t return, 5 years ago. You can be detained up to 48 hours not-counting weekends and holidays that the court is closed. In the case of a three-day weekend, this can mean up to a 5 day stint in jail.
Though body attachments may be legal in enforcing civil judgments, often creditors and debt collectors, including attorneys, often threaten body attachments in circumstances where the threat is false or misleading.
Consequently, if you receive a communication from a debt collector, and your are located in Indiana, or if it relates to an Indiana judgment, we would love to hear from you. Call us at 317-662-4529. FALSE THREATS OF BODY ATTACHMENTS MAY VIOLATE THE FAIR DEBT COLLECTION PRACTICES ACT, AND MAY GIVE YOU THE RIGHT TO SUE FOR DAMAGES – EVEN IF YOU OWE THE UNDERLYING DEBT. There may be other laws that are violated as well.
If you are outside of Indiana, contact the attorney referral service of the National Association of Consumer Advocates to find a consumer attorney near you.
You should be aware that even if you owe a judgment, every state has exemptions relating to property or wagest that can’t be seized (or garnished) by creditors.
For more information about exemptions in Indiana, here is a brochure put out by Indiana Legal Services.
You should also be aware that in many cases filing bankruptcy can stop a garnishment or proceeding supplemental in its tracks. You can find a consumer bankruptcy attorney near you through the National Association of Consumer Bankruptcy Attorneys (NACBA), and their referral page is
here.