There are many misconceptions about whether or not an arrest warrant can be issued by a court of law for failing to pay debt. A recent article from the Standard Examiner entitled “Utah courts increase use of civil bench warrants to compel debt payments” shows how easily some of these misconceptions are spread. And that isn’t the first time the Standard Examiner misreported the issue. In 2016, it reported incorrectly that Rex Iverson died in jail after being arrested for failing to pay debt. If the media won’t report it right how can the average consumer be expected to know whether failing to pay debt can result in their arrest?
Arrest warrants in consumer debt cases are for failing to appear, not for failing to pay
The truth is that, for most debt, the courts may not issue warrants for arrest to compel debt payments. Courts can issue orders allowing creditors to garnish your wages, place a lien on your home, and seize your non-exempt personal property but they cannot have you arrested for failing to pay. The misconception arises because courts can, and justice courts in Utah often do, issue arrest warrants to debtors for failing to appear in court.
But that is a critical distinction. Merely failing to pay debt under normal circumstances will not result in your arrest. True, you can be arrested for failing to pay child support, court fines, or for writing bad checks, but as long as you appear in court and cooperate with the creditor’s efforts to discover your financial assets, you cannot be arrested simply for failing to pay a credit card account or other consumer debt. When you don’t appear at a court-ordered hearing for a supplemental order, however, the court can, and usually will, issue a warrant for your arrest.
The warrant is basically an order for contempt. The court issues the warrant for failing to obey the court’s order for you to appear, not for failing to pay the debt.
These arrest warrants arise in debt cases after the creditor obtains a judgment against the debtor and the debtor fails to appear at a supplemental hearing. These supplemental hearings are court proceedings in which the debtor is required to provide the creditor with details of their assets. That way the creditor can discover the debtor’s bank accounts, employment, and personal assets it can use to satisfy the debt.
An arrest warrant requires personal service
An arrest warrant for failing to appear at a supplemental proceeding is not automatically ordered by the court. Creditors are required to directly serve the debtor with notice of the supplemental hearing before the court will issue a warrant for arrest for failing to appear.
And it is not sufficient to serve another person living in the debtor’s household. For supplemental proceedings the creditor must serve the actual debtor directly. That differs from service of process of the original complaint which is effective upon service of someone else living in the debtor’s household.
In cases where the debtor did not receive direct personal service the court will request an order to show cause and request to continue the hearing to another future date. That way the creditor can try again to serve the debtor.
That doesn’t mean debtors should necessarily avoid personal service, however. Each time the constable attempts service it costs money and that money is added to the debt.
A debtor’s appearance at a supplemental proceeding can be avoided in some cases, but proceed with caution
When debtors are served with notice of a supplemental proceeding to collect a judgment they are provided with a list of questions. The questions relate to the debtor’s assets such as bank accounts, income, and personal property. If the debtor responds to those questions in sufficient detail to satisfy the creditor, the hearing for a supplemental order can be cancelled. Debtors should proceed with caution however, because unless they receive notice from the court the hearing is cancelled they must still appear.
Many times the creditors will still want the hearing to occur if only to put on the court record that the debtor satisfied their requirements. This is good practice for the debtor as well because it can prevent arguments of failing to appear from creeping up later. If the debtor answers the questions prior to the hearing, the court may still want the hearing to occur for the same reasons. Either way, it is best to appear and cooperate to be sure the creditor cannot request an arrest warrant.
The bankruptcy stay can prevent issuance of an arrest warrant
In some cases debtors may be insolvent and simply cannot pay the debt because their living expenses far exceed their income. In these cases, failing to appear will still result in an arrest warrant. One approach to resolving the debt may be to seek protection by filing bankruptcy. Many debtors don’t have enough debt to justify bankruptcy, but in truly desperate situations it can be an excellent tool for starting over.
Once a bankruptcy is filed and notice is provided, the creditor is required to stop any further attempts to collect the debt. That includes hearings for supplemental proceedings. Again, debtors should exercise caution here because the bankruptcy stay will not automatically recall an already outstanding warrant. If the creditor has already obtained an arrest warrant but it has not yet been executed, the debtor who filed bankruptcy could still be arrested and have to pay the amount indicated in the arrest warrant to be released from jail.
Many creditors will accept payment plans to help debtors pay judgments. They will still likely require the debtor’s appearance at a supplemental hearing but if there are any assets or wages to protect, reaching an agreement with the creditor can be a good way to resolve the debt and avoid bankruptcy.
Payments can also be useful in reducing the debt in some cases. For example, when the debtor has no assets or disposable income creditors may be willing to accept an amount lower than the amount of the judgment. In many cases the creditors only accept less than the amount due when the debtor can make one lump sum payment but some creditors will accept less with monthly payments over time as well.
In most cases, it is better to seek a payment plan before a judgment is entered. That way the creditor will still have to request a judgment from the court before it can garnish wages, garnish bank accounts, or seize unsecured non-exempt assets.
The creditor may require a consent judgment in negotiating the debt to avoid the problem of having to obtain a judgment before it can seek garnishments and property seizure to collect the debt. A consent judgment, also referred to as a stipulated judgment, is entered when both parties consent to entry of the judgment with the court. Debtors often enter into consent judgments because they do not understand the consequences of doing so or because they have little to no choice in the matter. There are numerous ways to lose a debt collection lawsuit so debtors can be easily backed into a corner and feel they have no other choice. Overall, it is better to avoid a consent judgment either by prevailing in the lawsuit or by reaching a settlement agreement that doesn’t require entry of a judgment.
It is truly tragic that Rex Iverson died in jail but an arrest warrant was not issued against him for failing to pay a debt. Like other cases in the Utah courts, the arrest warrant was issued because he failed to show up when ordered to appear in court. To Mr. Iverson’s friends and family that distinction is almost certainly irrelevant, but to the average debtor the difference is important.
Debt collection lawsuits do not normally need to result in the issuance of an arrest warrant. Even if you cannot pay you should still appear throughout the proceedings. If you have assets you want to protect negotiate a payment plan or find out if bankruptcy is appropriate for your situation. Either way you should appear in court and cooperate.