The following questions were submitted to John Roska. He is an attorney and writer whose weekly newspaper column, "The Law Q&A," ran in the Champaign News Gazette. Please note that this article has been edited by ILAO staff.

Question

A friend went to jail on a warrant in a collection case. How is that possible? I thought there was no such thing as debtor’s prison.

Answer    

Although there’s no debtor’s prison, it’s possible to go to jail in a collection case. But, not because you owe money or can’t pay it. Jail can only happen if you’re able to pay and refuse to. Or, it can happen if you miss a court-ordered court date. 

First, understand that neither of these 2 outcomes can happen until after a judgment has been entered against you. A judgment can only be entered against you if you’ve gotten served with a summons and a copy of the lawsuit. It is also required that:

• You didn’t show up in court (default judgment),
• You showed up and consented to a judgment, or
• You contested the case, had a trial, and lost.

So, before a judgment, you can’t go to jail. This is because nothing before the judgment is a “must-appear” date. Until there’s a judgment, you can’t be ordered to make payments.

The summons you get before any judgment can happen is really just an invitation to appear. It says you “may appear” but not that you “must appear.” If you ignore a summons in a collection case, you just lose by default. The other side wins and gets a judgment for whatever they wanted, but you can’t go to jail.

However, after a judgment, all court dates are “must appear.” If you ignore a notice saying you must appear, you could be in contempt of court. To figure out if you are and to make sure that you get to court, a warrant is issued for your arrest.

Technically, the arrest warrant is really just a “body attachment.” But the effect on a debtor is the same. When found, the person is:

• Taken into custody,
• Processed, and
• Held until they either:
  • Post bond, or
  • Go to court for the hearing they missed.

Body attachments are the main reason people think jail is possible in a collection case. It’s not because the debtor owes money but because they missed a court-ordered court date. But this distinction, like the one between body attachments and arrest warrants, is not completely understood by the public.

The most common post-judgment court dates that debtors miss are Citation hearings or Rule to Show Cause hearings. Both are “must appear” court dates. In Champaign County, the local rule says,  “Failure to appear at [these] hearing[s] may result in the issuance of a warrant of arrest."

A Citation to Discover Assets can be served on a debtor to try to enforce a judgment or post-judgment. It orders them to come to court and answer questions about their financial situation. As the name suggests, it’s for creditors to discover assets that can be paid on the judgment. 

A Rule to Show Cause happens if a debtor hasn’t paid as ordered or fails to appear on a Citation to Discover Assets. A judgment is not a payment order, so a Rule only happens if someone was specifically ordered to pay and did not. The Rule orders them to come to court to explain why they haven’t paid. Or, they may need to explain why they haven't shown all of their financial information to the judgment creditor.

Besides a body attachment for failing to appear when ordered to, the only other way debtors go to jail is if they were ordered to pay, can pay, and will not pay. This is called willful contempt of court, which is determined at a Rule hearing. Then, the debtor will go to jail until they pay as ordered.