Body Attachments for Contempt of Court in Indiana, Some Welcome Changes

For years, Indiana has been a center for injustice regarding the issuance of body attachments for unpaid civil judgments.  A body attachment is basically an arrest. Technically, it is not for failure to pay the judgment, rather, it is for contempt of court for failing to attend a proceeding supplemental to judgment to give information to the plaintiff for purposes of collecting the judgment. That being said there are a number of legitimate reasons why a person might not attend a proceeding supplemental. The most common is they never know about the proceeding supplemental in the first place. Other reasons might be lack of child care, lack of transportation, inability to read and understand the legal pleadings, illness or general incompetence. 

Both federal and state law prohibits imprisonment for debt. Section 22 of the Indiana Constitution provides as follows:

Section 22. Debts--Imprisonment exemption

Section 22. The 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.

For at least as long as I've been an attorney, 33 years and counting, courts have issued body attachments in the form of a bench warrant, an arrest warrant. . It has worked differently in different counties, but if a law enforcement officer seizes the person, the law enforcement officer is supposed to take the person to the court, for questioning about why the person did not attend the proceeding supplemental.  On many occasions the person was seized and the court was not in session, so the person had to stay in jail over a weekend, sometimes an extended holiday weekend. 

In recent years there has been some attention in the press to the issue of poor people spending time in jail because they can't pay civil judgments, and it looks like it is finally starting to pay dividends in court rules. Today I was reading Delaware County's local rules in preparation for a case, and I found out that they recently adopted rules greatly reducing the power to issue a bench warrant on a civil judgment.  Essentially the defendant has to prove actual notice and if the warrant is issued, it must be done during court hours and the defendant is taken directly to the court. 

If you are subjected to a body attachment relating to a civil judgment in Indiana, we will talk to you and look into your claim at no charge.  Often plaintiffs and their attorneys make mistakes in the process, and these mistakes could give you the opportunity to collect damages in a lawsuit.  Please call us at 317-662-4529 if you have any questions.  

Body Attachments for Small Claims Court Cases - Are they allowed?

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.