Guest Blog by NACA Member Amy Hennen, Maryland Volunteer Lawyers Service
As the Managing Attorney for Housing and Consumer Law at the Maryland Volunteer Lawyers Service (MVLS), I oversee all aspects of our consumer work, not the least of which is debt collection defense. In the fall of 2014, at the invitation of the District Court, MVLS and the Pro Bono Resource Center (PBRC), as part of a statewide Consumer Protection Project, teamed up and began offering weekly clinics to provide free legal advice to consumers who are facing debt collection cases in District Court. For many of these clients, we are able to help them avoid entry of a judgment in the first place.
Once a creditor has a judgment, they can use the body attachment process to compel payments from a judgment debtor using this civil arrest process. After judgment is granted, a creditor can request that the court order the debtor to appear for an oral exam. If the debtor fails to appear for the oral exam, a creditor can request that the court order the debtor to appear again to explain why they failed to appear at the oral exam. If the debtor again fails to appear, the creditor then has the right to request a body attachment. Many argue that body attachments are not issued for failure to pay a debt, but instead for failure to obey a court order. However, courts do not issue body attachments for all debtors who fail to obey these court orders; body attachments are only issued if a creditor requests it be issued. Only a small number of creditors use this process. Of all judgments entered in district court, only a few thousand have body attachments requested, and only a few hundred judgement debtors are actually arrested for an outstanding body attachment. Although the number of people actually arrested for a body attachment is limited, the long-term consequences of a night in jail can have a far-reaching impact on employment or even child custody.
This year, I represented a client with a pending body attachment. While waiting for a ruling on my motion to quash my client’s outstanding body attachment, I informally polled several district court commissioners about what would happen if she were picked up by the police. The commissioners told me she would be taken to a detention center or police station for processing, which could take between 2 and 24 hours depending on the jurisdiction, and then taken before a commissioner. The commissioner would review criminal history, particularly looking for a history of failure to appear for court hearings and other issues that would show whether the person might be a danger to the community. The commissioner then could decide to release the consumer on their own recognizance, hold the person without bond, refer them to pretrial services (for check-ins), or release them on bond. If the person is held without bond or can’t afford to post the bond, the person would wait to go before a judge on the next business day for a review. If the commissioner’s determination occurs on a Friday evening, then the judicial review would not happen until Monday.
The prospect of spending a few hours at a detention center was terrifying to my client, not to mention the prospect of a possible weekend in jail. However, my client would have been held without ever being notified by the court that this could happen. Substitute service permits process servers to give court paperwork to a co-resident instead of the defendant in a suit. Substitute service is necessary to allow lawsuits to move forward. This process assumes that the process server has the correct address and the co-resident provides all the paperwork to debtor. However, this process is not perfect and many debtors at MVLS clinics say they never received notice but found out some other way. MVLS believes permitting someone to be arrested when they were never personally served with the court documents is counter to due process. Permitting body attachments only when the process server had directly served the judgment debtor would safeguard due process rights.
My client with the outstanding body attachment cosigned for a bail bond for a friend and didn’t know payments weren’t being made. The service for the lawsuit and the request for the oral exam were “served on a co-resident” at a former residence. She never actually received notice of the suit or the oral exam. When it came time to serve the show cause order, the process server had finally found her correct address. However, at that point she had been arrested on a separate criminal matter. The process server stated they served her co-resident, but information publicly available on case search demonstrated that was not possible—she was incarcerated at the time. It wasn’t until she was released from jail and working to get her life together that she pulled her credit report. At that point, she discovered she had an outstanding judgment and sought legal assistance. Had she not discovered the judgment, she could have been arrested for the body attachment and not known anything about it. The body attachment was eventually quashed, but not without considerable fear that she would be arrested without having an opportunity to defend herself.
In 2018, the Maryland legislature looked at several different ways it might protect debtors facing body attachments but ultimately took no action. Maryland should protect the due process rights of the thousands of people with outstanding body attachments and require judgment creditors to personally serve them with the oral exam or show cause, without substitute service, before they can request a body attachment. I hope in 2019, we will see this change.