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How to Avoid Ending Up in Jail for Debt

By Sam Glover

Getting served with a debt collection lawsuit is bad enough without the risk of jail time. But ignoring a lawsuit could lead to a bench warrant—and possibly a short jail visit—in some circumstances. Make sure it does not happen to you.

When not to worry about jail

You do not need to worry about landing in jail if you have not been sued. A lawsuit starts when it is filed or when someone gives you (or someone else at your home) a summons and complaint. There are some cases where service may be improper, but if you get a summons and complaint—no matter how you get it—you should consult a consumer lawyer as soon as possible.

If you have not been sued on a debt, you do not need to worry about going to jail on that debt. Of course, if you have been sued but don’t know it for some reason, you may still be in danger. Ignoring a lawsuit is how you risk jail.

How debtors end up in jail

Consumers who end up in jail because of a debt collection lawsuit almost always have one thing in common: they ignored it. Here is how it happens.

A lawsuit starts with a summons and complaint. The defendant must answer the complaint, in writing, and serve the plaintiff by sending a copy to its lawyer. The answer may also have to be filed with the court. You can do this yourself, but it is best to get help from a knowledgeable consumer rights lawyer. If the defendant (the debtor) ultimately wins the lawsuit, then no worries—winners don’t wind up in jail, as a general rule.

However, if the defendant ignores the summons and complaint, she would lose the case by default. And even if the defendant answers, he could lose.

If the plaintiff (the original creditor or debt buyer) wins, that means it has a judgment against the defendant for the debt plus any interest and fees that may have been tacked on. When a plaintiff wins a lawsuit and gets a judgment, it can ask the court to force the losing defendant to disclose his money and other assets. This is called an “order for disclosure” or something similar, depending on the state.

Ignoring a summons and complaint is one thing. Ignoring—and therefore disobeying—a court order is quite another. It is contempt. And when the court suspects someone has disobeyed a court order and thereby committed contempt, it issues yet another order: an “order to show cause.” That means the court is ordering the losing defendant to show up and explain why she did not obey the order for disclosure.

Here is where the risk of jail enters the picture. If you are sued and ignore everything else, show up for the hearing on the order to show cause.

Failing to show up for the hearing on the order to show cause means the court will issue a bench warrant for the defendant’s arrest. The sheriff or the police may then arrest the defendant to bring him before the judge. The judge will force the defendant to disclose his assets or pay the judgment in order to be released. Some courts may allow the defendant to post bail, though bail may be set in the amount of the judgment or greater.

The keys to avoiding jail time are simple. First, judge hire a consumer lawyer as soon as someone sues you. Your attorney will help you through the process, and may be able to win the lawsuit, in addition to keeping you out of jail. Second, never ignore a court order. In fact, never ignore any document related to a lawsuit, but especially not a court order.

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Full post as published by Caveat Emptor on August 04, 2010 (boomark / email).