Debtor's Prison (long)

[spikedz]

State of Florida

What do you think of the legality of the following document? Is it not debtor's prison? The really problematic part is in bold type:

ORDER OF CONTEMPT AND WARRANT FOR COMMITMENT

ABC Bank
vs.
John Doe

TO EACH SHERIFF OF THE STATE:

WHEREAS this Court previously ordered John Doe to make discovery in aid of execution as provided by the Florida Rules of Civil Procedure, and
WHEREAS John Doe was served a copy of such Order, and
WHEREAS John Doe has failed to make discovery as ordered and
WHEREAS John Doe has failed to appear as directed and ordered by this Court to show cause why he should not be held in contempt of court.

NOW THEREFORE, in considreation thereof, it is

ORDERED that John Doe is in contempt of this Court for failure to complay with the order of this court.

IT IS FURTHER ORDERED that the Sheriff of XXX County and all Sheriffs of the State of Florida shall take John Doe into custody for commitment to the XXX County Jail there to remain for a period of one day (24 hours) for contempt of court or until said Defendant has purged the contempt by making discovery as ordered by this Court and paying to the plaintiff the Sheriff's fee for serving or carrying out this warrant, whichever occurs first.

The Sheriff may notify said Defendant that he holds this warrant and allow said Defendant five days thereafter to purge this contempt as aforesaid OR BY SATISFYING THE JUDGMENT IN THIS CAUSE; but if the Defendant fails to so purge the contempt within the saidfive days, the Sheriff shall then forthwith execute this warrant.


I apologize for the length of this post but I wanted to make sure the relevant parts of the document were in. Is it just me, or does this order basically state "Pay off your judgment in full or go to jail"? The order further "authorizes the attorney to release this warrant at any time without further notice from the court" which is an interesting clause. Pretty much gives the attorney carte blanche

 

[I AM ALWAYS LIABLE]

My response:

There is no debtor's prison for merely owing a debt. You're going to jail because you failed to obey the court's prior order.

However, the court is also saying to you, and offering, that you can purge your contempt by merely paying the judgment. The court really doesn't want to put you in jail, but will if you force it's hands. If you don't pay the judgment, and thereby disagree with the court's "offer", then you will go to jail on the contempt of court - - NOT BECAUSE OF THE DEBT!

So, even if you go to jail, you'll still owe the judgment amount. Going to jail never vitiates the debt/judgment.

IAAL

 

[spikedz]

Actually I'm not the debtor in this case, I am in law enforcement, and my agency is considering challenging these orders due to several problems we have with them (and no, this is not the only place we are seeking opinions). Our legal consultant agrees that there are problems with these orders, but there seems to be a wealth of information on these boards and I am curious if anyone has ever come up against something like this. We only receive them from one law firm that is well-connected and has these orders rubber-stamped by the judges.

If the debtor is in contempt of court, shouldn't the judge just issue a regular warrant for contempt of court, and then hold the defendant for an appearance before the judge to explain why he has not complied? Or either set a bond appropriate for a contempt of court charge, such as $250 or $500, since once the defendant is arrested he will understand that he had better show up next time. Most of the people we serve these on have no prior criminal history and are not likely to become fugitives over something like this.

Why does the attorney, despite the defendant's non-compliance, not have to follow regular procedure for collection on a judgment (i.e. levy, garnishment)?

If the defendant is incarcerated on this order, the only way for him to get out of jail is to either make discovery as ordered (tough while in a cell) or pay the full judgment amount. It is similar to a Writ of Attachment for Child Support, except that the attorney actually pays the Sheriff $50 a day to incarcerate the defendant for however long they wish, or until he purges.

 

[spikedz]

One thing I forgot to add:

If the defendant is incarcerated on this order, he/she does not at any point appear before a judge, they are merely released based on the time specified on the order (usually 24 hours). The defendant also is not required to appear in court.

The attorney has the ability to order this defendant incarcerated over and over again, as long as they are willing to pay the $50 a day to house and feed them in jail.

If it's contempt of court then shouldn't they at some point be required to appear before that court? Isn't that ostensibly the reason for jailing someone on contempt in a case like this?

 

[JETX]

I am really reluctant to get dragged into your 'what if' scenario, but you and your legal counsel have a lot to learn about the system.

As accurately noted by IAAL, the detention of the debtor in this case is not a 'debtors prison' situation (which no longer exists). The court has ORDERED the debtor (defendant) to provide information to the creditor. The debtor has refused or failed to comply with the ORDER. That is called 'Contempt of Court', which is a detainable action.

And since this "Contempt of Court Order" is a very common element to law enforcement (I know personally), I have great reason to suspect your claim that YOU are an LEO (and are more likely the debtor looking for free legal help), I will offer the following in response to your posts:

"If the debtor is in contempt of court, shouldn't the judge just issue a regular warrant for contempt of court, and then hold the defendant for an appearance before the judge to explain why he has not complied?"
*** No. From the fact that an open warrant was issued, it is obvious that the debtor has failed to appear as ordered, thereby making your 'appearance' issue moot. Any real LEO should know that.

"Or either set a bond appropriate for a contempt of court charge, such as $250 or $500, since once the defendant is arrested he will understand that he had better show up next time."
*** You can't order a bond against someone who refuses to appear. And even if you could, what makes you think that this deadbeat would comply??

"Most of the people we serve these on have no prior criminal history and are not likely to become fugitives over something like this."
*** And that is not the intent of the contempt order.... or warrant. The intent is to make this person realize that they are responsible for complying with the law.... even civil law.

"Why does the attorney, despite the defendant's non-compliance, not have to follow regular procedure for collection on a judgment (i.e. levy, garnishment)?"
*** Several reasons. First of all, I would assume from the creditors (valid and legal) request for a debtors exam, he is doing so to locate assets to seize. Second, the process of debtors examination IS a proper and regular procedure.

"If the defendant is incarcerated on this order, the only way for him to get out of jail is to either make discovery as ordered (tough while in a cell) or pay the full judgment amount."
*** That is the purpose for this action. Simply, the process is ENTIRELY in the control of the debtor. And again, any REAL LEO would know that the debtor can simply agree to make the required discovery to the court and be released.... on a tight leash to present them.... even from a cell.

"If the defendant is incarcerated on this order, he/she does not at any point appear before a judge, they are merely released based on the time specified on the order (usually 24 hours). The defendant also is not required to appear in court."
*** Wrong on both counts. The debtor can advise the jail staff that he/she is willing to comply and will then be brought before the court.

"The attorney has the ability to order this defendant incarcerated over and over again, as long as they are willing to pay the $50 a day to house and feed them in jail."
*** Right... and wrong. The court can simply order the debtor to be held until they agree to comply with the order. And usually, the maximum time (per contempt) is about 3 days. And the creditor doesn't have to pay for the jail time. It is either paid directly by the debtor or the court simply adds it to the debtors 'bill'.

"If it's contempt of court then shouldn't they at some point be required to appear before that court? Isn't that ostensibly the reason for jailing someone on contempt in a case like this"
*** Already answered above.

In closing, I reiterate.... any REAL LEO would already know all of these facts.... and even if they were a new Pro-Officer (on probation), the departments legal "consultant" would certainly have known!! So, about fessing up.....

 

[I AM ALWAYS LIABLE]

Actually I'm not the debtor in this case, I am in law enforcement, and my agency is considering challenging these orders due to several problems we have with them (and no, this is not the only place we are seeking opinions). Our legal consultant agrees that there are problems with these orders,

MY RESPONSE: Okay, you're not the debtor. My mistake. But, at the same time, I have my doubts about you being in "law enforcement" because your questions do not appear to be "law enforcement" phrased. In fact, if you are, I would imagine that you also have a large wealth of legal eagles at your fingertips to ask these questions.

But, I'll play along - - What argument is your "legal consultant" making against this type of order? Constitutional? Procedural? Statutory?




but there seems to be a wealth of information on these boards and I am curious if anyone has ever come up against something like this. We only receive them from one law firm that is well-connected and has these orders rubber-stamped by the judges.

MY RESPONSE: Thank you. There is a wealth of information here, and yes, in our day-to-day practice of law, of course we come into frequent contact with similar orders.


If the debtor is in contempt of court, shouldn't the judge just issue a regular warrant for contempt of court, and then hold the defendant for an appearance before the judge to explain why he has not complied?

MY RESPONSE: This is a form of "lower court" warrant; e.g., Small Claims court. It is an "Order to Show Cause" giving the defendant/judgment debtor a further order to appear or pay.

What would you like the court to do? The defendant/judgment debtor has already shown "contempt" for the court's prior orders. What makes you think that, without your assistance as an "officer of the court", as you say you are, that the defendant/judgment debtor is just going to voluntarily waltz into court on their own? How else would you like the court to enforce its prior orders when people are, in effect, "spitting in the face" of the judge?



Or either set a bond appropriate for a contempt of court charge, such as $250 or $500, since once the defendant is arrested he will understand that he had better show up next time. Most of the people we serve these on have no prior criminal history and are not likely to become fugitives over something like this.

MY RESPONSE: And, after the "arrest", where would you put the defendant/judgment debtor, if not behind bars? However, that's not your "call" to make. That's for the court to decide. You never know when someone decides to "go over to the dark side" and become a law breaker (which they already have become by disobeying a prior court order).



Why does the attorney, despite the defendant's non-compliance, not have to follow regular procedure for collection on a judgment (i.e. levy, garnishment)?

MY RESPONSE: That's the whole purpose of the "discovery" that the defendant/judgment debtor was supposed to comply with in the first place!

How is the judgment creditor supposed to know what to levy, garnish, attach, or execute upon, if the defendant/judgment debtor fails to respond to the "discovery"? Then, once the discovery is complete, the judgment creditor will know the what's, the where's and the how much's of someone property and account holdings.




If the defendant is incarcerated on this order, the only way for him to get out of jail is to either make discovery as ordered (tough while in a cell) or pay the full judgment amount. It is similar to a Writ of Attachment for Child Support, except that the attorney actually pays the Sheriff $50 a day to incarcerate the defendant for however long they wish, or until he purges.

MY RESPONSE: The defendant/judgment debtor doesn't stay jailed for very long. It's meant to get the defendant/judgment debtor's "attention" and to discipline the defendant/judgment debtor for having "spat in the face of the judge." Then, after the short jail stay, the judge makes the defendant/judgment debtor waltz into court to answer "judgment debtor questions" in open court - - the same ones that the defendant/judgment debtor failed and refused to answer in writing.

In summary, judges don't like to be told, in effect, "stick it up your ass - - I'm not coming into court, and I'm not paying." That's a big no-no. Sometimes and otherwise law abiding citizen needs a wake up call to remind him that there's a "higher authority" to deal with, and justice waits for no man.

But, through all this, I would still like to know what your "counsel" is saying concerning these "warrants" and the grounds for his/her "objections" to them.

IAAL

 

[HomeGuru]

Actually I'm not the debtor in this case, I am in law enforcement, and my agency is considering challenging these orders due to several problems we have with them.....

**A: please state what division of law enforcement you are in, the name of your agency and if your legal consultant is experienced and licensed to practice law in the subject areas.

 

[spikedz]

Okay, I'll fess up:

I never claimed to be an LEO, I am a non-sworn member of a law enforcement agency. If I was a debtor looking for free legal help I would state that, as other posters on this board do, since it does not seem to affect the quality of their responses. I won't argue further about it though, since it is irrelevant.

This is not a "What if" scenario, I have a dozen of these things in circulation right now.

Contempt of Court is actually a pretty rare charge for us to see here, other than Civil Contempt / Cash Purges for failure to pay court-ordered costs or fees in a criminal case.

"If the debtor is in contempt of court, shouldn't the judge just issue a regular warrant for contempt of court, and then hold the defendant for an appearance before the judge to explain why he has not complied?"
*** No. From the fact that an open warrant was issued, it is obvious that the debtor has failed to appear as ordered, thereby making your 'appearance' issue moot. Any real LEO should know that.***

My question was: Isn't the point of arresting a defendant that repeatedly refuses to appear as ordered to make him appear? After all, if he's in jail he doesn't have a choice. The defendants on these cases are not ordered to appear in court unless they pay the full judgment amount, even if arrested.

"Or either set a bond appropriate for a contempt of court charge, such as $250 or $500, since once the defendant is arrested he will understand that he had better show up next time."
*** You can't order a bond against someone who refuses to appear. And even if you could, what makes you think that this deadbeat would comply??

Really? How about charging the defendant with an FTA Contempt when he doesn't show up after being served with an Order to Show Cause? He'll comply with going to jail when we cuff him. At which point the judge could talk to him all he wanted.

"Most of the people we serve these on have no prior criminal history and are not likely to become fugitives over something like this."
*** And that is not the intent of the contempt order.... or warrant. The intent is to make this person realize that they are responsible for complying with the law.... even civil law.

Actually the intent of these contempt orders is to make the defendant pay the judgment in full without the attorney having to resort to the usual channels of judgment collection. This attorney's office never follows through with execution or garnishment on the defendants that do comply. But that is a side issue. If the order was written by a judge then I would agree with your above statement, but experience has taught me to be cynical of orders prepared by attorneys then stamped by judges with too many cases on the docket. It is disheartening how many judges don't even read what they're signing.

"If the defendant is incarcerated on this order, the only way for him to get out of jail is to either make discovery as ordered (tough while in a cell) or pay the full judgment amount."
*** That is the purpose for this action. Simply, the process is ENTIRELY in the control of the debtor. And again, any REAL LEO would know that the debtor can simply agree to make the required discovery to the court and be released.... on a tight leash to present them.... even from a cell.

This in incorrect. Merely agreeing to answer discovery will not get you released. No jail is going to release a defendant based on something they claim they're going to do later. Especially when the order specifically states that the defendant must make discovery to purge, not simply state their intent to do so.

"If the defendant is incarcerated on this order, he/she does not at any point appear before a judge, they are merely released based on the time specified on the order (usually 24 hours). The defendant also is not required to appear in court."
*** Wrong on both counts. The debtor can advise the jail staff that he/she is willing to comply and will then be brought before the court.

Incorrect again. The order makes no provision for the defendant's release other than purging through either discovery or full payment of the judgment. The inmate can tell the jail staff whatever he wants, they're not moving him anywhere without an order from the court. Including to the court. Now if he was in there long enough he could motion for a hearing, but in most cases it's only 24 hours.

"The attorney has the ability to order this defendant incarcerated over and over again, as long as they are willing to pay the $50 a day to house and feed them in jail."
*** Right... and wrong. The court can simply order the debtor to be held until they agree to comply with the order. And usually, the maximum time (per contempt) is about 3 days. And the creditor doesn't have to pay for the jail time. It is either paid directly by the debtor or the court simply adds it to the debtors 'bill'.

Every one of these I have seen orders the defendant held for whatever term the attorney specifies. The attorney is required to pay, in advance, service fees for the order plus $50 for each day they wish the defendant incarcerated. If this is not paid in advance the order will not be served. This may be added to the debtors "bill" later, but the creditor is required to pay for it initially. The longest I have seen a defendant incarcerated on one of these is 5 days.

As far as our "legal consultant", he likes to give "lawyerly" answers, i.e. instead of a straight answer he just quotes statutes at us. We also have a private consultant, which is the legal consultant I had previously referred to.

Civil arrest orders are always problematic (except for child support writs since those are treated quasi-criminally), but these orders seem to be "shortcutting" the system. I agree that these are "deadbeats" and am not trying to defend them, but the "Debtor's Prison" question stems from the fact that it certainly seems that way when a deputy shows up at someone's door and says "Pay or go to jail." Unfortunately (for them) most debtors in these cases are not intelligent enough to know what discovery is, despite being served countless times before, so purging the order in that way is almost never done.

It also puts us, as the serving/enforcing agency, in the horrible position of having in our possession a non-verifiable (unless the law firm is open at the time of arrest and the right attorney is there) civil arrest order. And the provision that "authorizes the attorney to release this warrant at any time without further notice from the court" is ridiculous, an attorney should not be able to skip the proper channels. If you have any LEO experience you should know what a nightmare anything that could possibly lead to a false arrest is. Whether or not we as an agency are at fault is by and large irrelevant these days, since it's usually cheaper to settle false arrest charges.

Just out of curiosity, what new LEO, or even many experienced ones, even receive more than minimal training or exposure to civil law? Other than domestic violence and child support, of course. This is way outside the bounds of anything your average LEO would deal with, other than "it's signed by a judge, let's just do what it says".

We gotta stop quoting each other, this is getting too long.

 

[HomeGuru]

Now consider yourself in poster's prison.

 

[spikedz]

I work for a Sheriff's Department, and our legal consultant has over 35 years experience both in and out of law enforcement, all pertaining to civil matters, and is licensed to practice law in the state. I am not putting my agency name for obvious reasons.

As far as having a "large wealth of legal eagles at my fingertips"...hah! Have you seen a county budget lately?

Their opinion "If an order allows a purge before incarceration, the contempt for not complying should be heard by the court under an Order to Compel on a previously entered order. Also a Rule to Show Cause should be issued. Our opinion is that the defendant should have opportunity to be heard by the court as to why he did not purge before incarceration as ordered."

As far as "What do I want the court to do?" ...isn't that what executions and garnishments are for? And yes, I know that execution and levy is usually a waste of time since the property taken doesn't bring anything near what it's worth or what is owed. As far as locating assets to sieze, what about running a DMV or Property Appraiser report like everyone else? Personal property is usually not woth levying on, even if they know exactly what they have, due to the enormous deposit amount required to levy.

I'll be honest, if the court issues a warrant to throw a guy in jail for not paying off a judgment, that's fine. It's clear cut and verifiable. Our biggest problem with these things is that they are basically warrants being written by the attorney, that can not be validated by the court, and can be released by the attorney at any time. I'll admit I don't like the "pay up or go to jail" aspect of it anymore than the deputies that serve them do, but our personal opinions don't affect our ability to enforce them.

My "Is this Debtor's Prison" question seems to have been answered, though. It still seems a bit shady but within the boundaries of the law.

 

[JETX]

Though your post has numerous inaccuracies and mis-statements, it is really not worth the time for a long detailed response.

However, I will respond to the following two statements that are particularly incorrect:
"If the order was written by a judge..."
*** Judges don't write 'orders'. The attorney rights the order and submits it to the judge for his/her review and signature. And for some reason, this seems to be your particular 'burr'.

"but the "Debtor's Prison" question stems from the fact that it certainly seems that way when a deputy shows up at someone's door and says "Pay or go to jail."
*** Clearly that is NOT what the court order says. Your own offered excerpt says what the correct issue is ("to the XXX County Jail there to remain for a period of one day (24 hours) for contempt of court or until said Defendant has purged the contempt by making discovery as ordered by this Court"). Simply, there is NOTHING in that about 'pay or go to jail'!!

Suffice to say, a warrant on Contempt of Court is a valid bench warrant. And they are not 'shady' in the least..... they are a valuable tool that can be used to get the debtors attention.... when all else has failed.

 

[spikedz]

"There is NOTHING in that about 'pay or go to jail'!!"

The Sheriff may notify said Defendant that he holds this warrant and allow said Defendant five days thereafter to purge this contempt as aforesaid OR BY SATISFYING THE JUDGMENT IN THIS CAUSE; but if the Defendant fails to so purge the contempt within the said five days, the Sheriff shall then forthwith execute this warrant.

-What's that then?

"And they are not 'shady' in the least..... they are a valuable tool that can be used to get the debtors attention.... when all else has failed."

-I disagree with an order that gives law enforcement the ability to threaten a defendant with jail if he doesn't pay up on a civil case.

I realize that from your website, you are a debt collector and thus your opinion will differ from mine.

My questions have not been "law-enforcement-phrased" since I am simply seeking opinions and would certainly not be using anything on a message board as a legal opinion or as a basis for making a decision. Actually, if you would like to explain what "law-enforcement-phrased" means, I will be happy to pass it along to the sworn LEOs I work with so thay may begin speaking properly.

That's all the time I have to play today, thanks for the responses.

 

[stephenk]

you keep overlooking the obvious. the order of contempt gives the defendant two options:

1. comply with the discovery requests;

OR

2. pay the judgment that is owing.

The reason the second option is put in the order is to allow the defendant to satisfy the debt and therefore the order of contempt becomes moot because the case is settled.


if the order required the defendant to do option one AND option two, then your argument about debtor's prison would be valid.