October 22, 2019

Can You be Thrown in Jail for Not Paying Your Credit Card Debt?

“Can I be thrown in jail for not paying my credit card debt?” What about other unsecured debt like a broken apartment lease, a car repossession deficiency, medical bills or personal loans?

jailed for contempt of court

The short answer to this question is “no,” there is no debtor’s prison in the United States and an unsecured creditor like a credit card company cannot contact your local police department and have you picked up and thrown in jail.

If a bill collector threatens you with incarceration, that bill collector is almost certainly violating the Fair Debt Collection Practices Act (FDCPA) and you could sue that bill collector for money damages for making an idle threat.

However…

there are some circumstances where you could find yourself facing jail time if you ignore or refuse to cooperate with the litigation process. Here’s what you need to know.

Collection Lawsuits are about Money Only

First, if you owe money to a credit card company, or for a medical bill or any other unsecured debt, the only remedy that your creditor has is to “dun” you account (call you or write you to remind you of your obligation) or to file a civil action lawsuit against you to obtain a civil judgment against you.

If a creditor files a collection lawsuit and wins by default (you failed to answer) or wins at trial, that creditor will obtain a judgment. They can take that judgment to your bank to seize whatever money you have in that account, or they can take that judgment to your employer and garnish your wages to the extent permitted by state law.

Collection lawsuits to recover money are part of the civil justice system. Civil matters are about money only and involve one party (the plaintiff) suing another (the defendant). By contrast a criminal action occurs when a governmental unit like the State of Georgia or the United States of America files a criminal complaint against you. The government is represented by a prosecutor (i.e., the District Attorney, U.S. Attorney or equivalent) and the remedy is either a fine, jail time or both.

Only the Government can File Criminal Charges Against You

The government is the only entity that can start criminal proceedings against you. If a creditor like a credit card company or an apartment complex wants to pursue criminal charges they have to take their complaint to the District Attorney or U.S. Attorney and the prosecutor has to agree to pursue criminal proceedings against you.

In very rare circumstances, an unsecured creditor can convince a prosecutor to take out a criminal warrant against you. For example if you are engaged in fraud like opening multiple credit card accounts in fake names or using fake Social Security numbers, you would be violating both state and federal law and you could face prosecution.

Simply not paying a debt you owe because you don’t have the money is not a criminal offense.

Avoid Contempt of Court by Responding to Post Judgment Discovery

Second, you need to understand that the debt collection process can involve more than a lawsuit, and that’s where you can find yourself in trouble.

If a creditor like a credit card company sues you and obtains a judgment, they have the right to conduct post-judgment discovery to force you to reveal where your money is located and where you work. Post-judgment discovery can take the form of interrogatories (written questions), requests for production of documents, and depositions (sworn testimony under oath recorded by a court reporter).

If you refuse to respond to discovery questions, refuse to appear at a deposition or otherwise refuse to participate in discovery, the judgment creditor can ask the judge to hold you in contempt of court and to have you incarcerated.

You would be jailed not for owing money, but you could be jailed for being in contempt of court for refusing to answer questions about where your money is located or where you work, or for giving false answers to these questions.

Sometimes a defendant in a civil matter does not cooperate with discovery because he doesn’t know how to respond, or, in some cases because he never got served with any paperwork at all.

Courthouses are very busy places and judges rely on lawyers to offer accurate information. If the lawyer for the judgment creditor sees that a person named “John Smith” was served with the lawsuit and post-judgment interrogatories and your name happens to be “John Smith” you could find yourself behind bars without knowing why.

Aggressive Creditors Use the Court’s Contempt Powers to Threaten You with Jail

In some busy jurisdictions, aggressive creditors (mis)use the contempt power of the civil court system to cause judgment debtors to be incarcerated. Needless to say, it can be very difficult to unwind a contempt action when you are sitting in a jail cell.

This type of incarceration for contempt of court does not happen a lot but it does happen enough to mean that you should be aware of the problem.

So, how do you protect yourself?

The most important think you can do is to take action if you are ever sued. You will know that you have been sued if a sheriff’s deputy or a process server knocks on your door and hands you a stack of papers. Don’t ignore this – the problem will not go away.

Second, review your credit reports every year. You can download a copy of your credit reports for free at AnnualCreditReport.com. Usually your credit reports will show that you have been sued.

Finally, if you ever receive any sort of letter suggesting that you have been sued, take action to find out if this is true. Many courts have online access where you can look up pending lawsuits. Bankruptcy lawyers can also find out for you as well.

If you owe money, you may be tempted to try to avoid dealing with your debt problems in the hope that creditors may go away. This is not a good strategy. You are always better off with a proactive approach and addressing your debt problems head on.

The odds are very small that a creditor will use a court’s contempt power to have you thrown in jail. But it does happen and you should not assume that you are immune from this situation.

If you are struggling with debt and want to speak to an experienced Atlanta area bankruptcy lawyer, please call our office at 770-393-4985.

About Jonathan

Jonathan Ginsberg represents honest, hardworking men and women in the Atlanta area who need personal bankruptcy protection. In practice for over 25 years, Jonathan teaches bankruptcy law and practice at legal continuing education seminars and he is a founding member of the Bankruptcy Law Network. Jonathan lives with his wife and children in Atlanta.

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