Court this am-what a freaking joke that was....

[WhatMoney]

technically it is true that you cannot be held in contempt for simply not paying a debt. technically, a judge has to decide, first, that you do have the money but are willfully refusing to pay. to reach such a decision, a judge simply has to decide that you are not credible when you say you do not have money. the judge, as the official "fact finder", has discretion to believe or not believe you. if the judge believes you do have the money but are refusing to pay, the judge then finds you in contempt and puts you in jail to force you to stop lying and pay up.

Show me a single case where a debtor gets a contempt of court penalty for simply not paying a judgment. I'll bet you can't find one. There has to be other proven charges, such as fraud, hiding, or transfer of non-exempt assets, for any further court sanctions. And the plaintiff has to make these charges with court motions and prove them. Once the judgment is signed, it would take a new court case with criminal charges of fraud in a civil contract dispute.

I think you are confusing family court and tax court, where child support evasion after divorce proceedings or IRS tax evasion is involved and may be grounds for "contempt" or worse. In a simple money judgment, ALL the judge does is rule on the request for a money judgment based on the pleadings of the case. The court has NO role in enforcing the collection of a judgment.

A debtors exam under oath requested by the plaintiff to search for a debtor's assets is all the court offers in any collection efforts after a judgment. The only "contempt of court" ruling that could occur is if the debtor lies under oath about his assets and the plaintiff was able to prove this.

Remember the time to prove a debtor has the ability to pay to the court is before the judgment, through the discovery process and a court trial.

so, technically, there are no debtors-prisons, only prisons for those that a judge decides are willfully refusing to pay. and given that judges often don't seem to need proof for anything as the OP described, i wouldn't be surprised if people end up getting jailed simply because they really do not have money to pay.

I don't believe this. Find a court case where this has happened - and I'll bet the circumstances are much more complicated than a simple money judgment - eg. deliberate fraud was involved and proven (difficult).

[WhatMoney]

I knew a guy in California who lost a lawsuit against Discover with exactly the same sort of "evidence" as that. Pretty amazing. I would think they would have to prove that the debt is yours. Apparently, not really. Kind of makes me wonder what all the DV hoopla is about, if they don't have to have it in court.

DV in court is done with discovery. You first need to file an answer, and file affirmative defenses. Based on your answer and those defenses, the judge decides at the pretrial hearing whether to schedule a court trial, or grant a summary judgment (if the debtor shows up) at the pretrial hearing, as happened to the OP. If your answer and defense are enough to convince the judge there is some merit for a trial, THEN is when you get the chance to ask for discovery. You hope the collector attorney will not be able to provide the information needed to prove the case. But you first have to have the written defense that there was no signature or trail of custody, or whatever before you can get to the discovery phase. Others have tried the required arbitration route to delay and frustrate the collector attorneys - do you have 15 months to play in court at your own expense and a 50/50 chance of a dismissal after all that work?

In the present case, the OP had no answer, no defense, and therefore no chance. The plaintiff provided credit card statements with both name, address, and some kind of sale of contract. The judge must decide whether the case has any merit - and based on the written evidence provided by the plaintiff, vs no defense at all for the defendent, he had no choice but to rule there was no further issues and granted a summary judgment. This is all that happened to the OP. No defense - you lose. Just showing up doesn't cut it when you are up against experienced lawyers with written evidence who have done this thousands of time before. They know the court rules and they know the judge.

If you have a case and want to win you hire an attorney to defend you, or spend many hours figuring out how to defend yourself pro se and take your chances. Few debtors are able to do this so they lose in court. It's not really unfair if the debt is actually yours. If the OP could prove this debt was absolutely not hers, never was, mistaken identity, identity theft etc, then she would have a strong defense simply by denying all charges in the complaint with an answer, and the judge would have scheduled a trial. That was not done.

[tigergem]

DV in court is done with discovery. You first need to file an answer, and file affirmative defenses. Based on your answer and those defenses, the judge decides at the pretrial hearing whether to schedule a court trial, or grant a summary judgment (if the debtor shows up) at the pretrial hearing, as happened to the OP. If your answer and defense are enough to convince the judge there is some merit for a trial, THEN is when you get the chance to ask for discovery. You hope the collector attorney will not be able to provide the information needed to prove the case. But you first have to have the written defense that there was no signature or trail of custody, or whatever before you can get to the discovery phase. Others have tried the required arbitration route to delay and frustrate the collector attorneys - do you have 15 months to play in court at your own expense and a 50/50 chance of a dismissal after all that work?

In the present case, the OP had no answer, no defense, and therefore no chance. The plaintiff provided credit card statements with both name, address, and some kind of sale of contract. The judge must decide whether the case has any merit - and based on the written evidence provided by the plaintiff, vs no defense at all for the defendent, he had no choice but to rule there was no further issues and granted a summary judgment. This is all that happened to the OP. No defense - you lose. Just showing up doesn't cut it when you are up against experienced lawyers with written evidence who have done this thousands of time before. They know the court rules and they know the judge.

If you have a case and want to win you hire an attorney to defend you, or spend many hours figuring out how to defend yourself pro se and take your chances. Few debtors are able to do this so they lose in court. It's not really unfair if the debt is actually yours. If the OP could prove this debt was absolutely not hers, never was, mistaken identity, identity theft etc, then she would have a strong defense simply by denying all charges in the complaint with an answer, and the judge would have scheduled a trial. That was not done.

This guy had done the DV thing and when he saw the copy of the credit app, it was his name, but not his signature on there. One of those "came in the mail" credit offers. The attorneys for Discover showed up with a stack of credit card statements about a foot high in a box lol. That was how this guy found out that his daughter had fraudulently obtained the card in his name and had been using it - and even paying on it - since she was 15 or 16 years old. She was in her 20s at the time of the suit. Anyway, he had similar time frame signature comparisons for evidence and even argued that he had never ever made a payment to Discover, but Discover had a stack of statements... several years worth! all mailed to a PO Box. They prevailed. Of course, one could argue he was responsible for the actions of his minor daughter at the time of the application. If he was going to press the identity theft thing, he would have to file charges against his daughter, right? Talk about a rock and hard place.

[music12]

whatmoney, everything you are saying is of course the way it's supposed to be. what i am saying is that it ain't always so. judges have the power to do almost anything they want even if they are not supposed to, and like in the example i cited before, sometimes it can take 14 years to get them reversed. that's 14 years with no criminal charges ever filed. and it is hard to "find a case" like that because those who get hurt are typically not able to fight back, and the only "cases" that get published are those where someone filed an appeal and went through with it all the way.

look at

http://www.loweringthebar.net/2009/07/lawyer-jailed-for-contempt-is-freed-after-14-years.html

or

http://www.nytimes.com/2009/07/12/us/12contempt.html

or any other articles discussing this 14-year case. you'll see that there was no separate trial, no charges ever filed, no right to a jury trial, just a judge who decided the guy was lying. no one could prove he was lying even after conducting a full investigation into the guy's assets, yet the guy was left to rot in jail for 14 years.

a few years ago, before my experience with the court system, i would have said exactly what you wrote before. now i know that i would have been wrong.

[music12]

i would also add that there are plenty of people who had a "fair" murder trial and were sitting on death row for years only to be proven innocent later by DNA. all it really takes is some bias - these people are mostly black/hispanic. and, you could ask, did anybody ever actually get executed who was innocent? well, one could never answer this question in the affirmative simply because no judge will ever order a DNA test after the "murderer" has been executed - they would claim the question was moot and there is no point to the test. so i wouldn't be able to point you to an example. but i would bet there have been a number of such cases.

notice that even you shifted the burden of proof to the debtor, requiring the debtor to be the one to prove the debt wasn't theirs. but think about it: how on earth would you prove something like that?? suppose for a moment the debt really did not belong to the OP, how would they prove mistaken identity or identity theft when you don't even know who stole your identity? how would they prove the debt was never theirs? i would say that in 99% of the cases that would be impossible to do.

[WhatMoney]

look at

http://www.loweringthebar.net/2009/07/lawyer-jailed-for-contempt-is-freed-after-14-years.html

or

http://www.nytimes.com/2009/07/12/us/12contempt.html

or any other articles discussing this 14-year case. you'll see that there was no separate trial, no charges ever filed, no right to a jury trial, just a judge who decided the guy was lying. no one could prove he was lying even after conducting a full investigation into the guy's assets, yet the guy was left to rot in jail for 14 years.

That case was a divorce settlement in family court. The court awarded the 2.5 million to the ex-wife and the husband/lawyer claimed he didn't have the money. This is entirely different than a civil money judgment based on contract law. That was my point before - civil cases based on contact law only affirm the debtor owes the plaintiff a sum of money. It does NOT force the debtor to pay the money, and there are no court sanctions if the debtor does not pay the money, irregardless of whether the debtor has the money or not. Contract law is different than divorce law, tax law, bankruptcy law or criminal law. The ONLY thing a court can sanction a debtor for in a civil law contract dispute is perjury - presenting false information to the court. And if you never reach the discovery stage in a civil case, you generally have nothing to hide from the court.

The judge has no interest or power to determine the debtors ability to pay. A judgment is not the same as a divorce award settlement. It is entirely up to the judgment holder to attempt to collect from the debtor. The court is not involved. The judge is not an asset investigator or a credibility detector or a fact finder in contract law. The judgment is awarded based NOT on the ability of the debtor to pay or what the judge thinks about the debtors' character.

It is based on two questions: 1) was the contract valid and agreed upon by both parties, and 2) did the debtor violate the terms of the contract by not paying as agreed? That is, the judgment is only based on the facts of the complaint and the relief requested by the collector, usually a money claim.

Your comments about criminal law and justice are certainly true - but criminal law is completely different than civil contract law.

[WhatMoney]

notice that even you shifted the burden of proof to the debtor, requiring the debtor to be the one to prove the debt wasn't theirs. but think about it: how on earth would you prove something like that?? suppose for a moment the debt really did not belong to the OP, how would they prove mistaken identity or identity theft when you don't even know who stole your identity? how would they prove the debt was never theirs? i would say that in 99% of the cases that would be impossible to do.

The burden of proof depends on who is making a claim or counterclaim. The plaintiff has the burden of proof to show you violated the contract. He only has to do this if you challenge the complaint in your answer and affirmative defenses. And he only has to convince the judge. But the defense has to ask the right questions so the judge knows what proof is expected.

Most debtors do NOT deny the debt outright - they use a conditional denial. This gives the judge more latitude in deciding what proof the collector must supply. Some judges are satisfied with account statements and a chain of custody letter. Others may want a signed contract. Others may simply ask the debtor under oath "is this your debt" yes or no, and short circuit all the debt validation and discovery process. That's a good reason to have an attorney representing you.

If your defense is identity theft, then the burden of proof to the court is upon the debtor. How would a collector know you were a victim of identity theft? Identity theft would need a police report, and written claims you made to the creditor upon learning of the theft. ID theft charges are usually reversed by the creditor anyway.

In the unusual case of an account opened by a thief with your information, who charged up the account and made payments for some time and then defaulted, there are ways to prove this. What address did the thief use? If it was your home address why didn't you detect it early on? If it was a PO Box, subpoena the post office for the signature card. If you didn't open the PO Box, was it forged in your name? What ID did the forger use? Does the forger look just like you on your photo ID? Did he steal your drivers license? File a forgery report with the post office if your name or signature was used. File a police report for everything. Take all your proof of ID theft to court, and put it in your pleadings. Demand the original signature contract and prove it is a forgery. Remember you would claim this is definitely not your account in your answer to a summons. The burden of proof would also be to the collector to provide the contract signature when you flatly deny you ever opened or owned the account and it was a case of ID theft.

But let's get real here. Most debtors did open the account, used it for some time, made payments traceable to them, charged it up to the limit, and finally defaulted - and they know it. If they want to play court games to delay a judgment or frustrate the collector that is perfectly legal. But if they have no valid defense they should expect to eventually lose the case and get a judgment anyway. You have to either deal with it or discharge the debt in BK. I haven't heard of anyone trying to discharge a debt in BK that was the result of ID theft. (Well, unless you are covering for a family member - in which case you now risk perjury.)

[pileated]

You cannot be held in contempt of court for simply not paying a debt, with or without a judgment.

As for not taking my story seriously, it did happen. I was there, in court, and I was threatened with jail if I did not pay the debt within 30 days. Furthermore, I am an attorney. I am not confused. I know which court I was in. Debtors only -- and a few attorneys there who were handling every single collections case (there were 100s of defendants, many lined up in the hall because everyone could not fit into the courtroom).

Had I not been seriously ill with heart problems (recently had open heart surgery & 2 mos. later stents put in the same arteries that were bypassed), I would have taken one of the cases pro bono on appeal because I think what they are doing in Mass is unconstitutional. Unfortunately, I was unable to work.

Yes, in some places you can go to jail for the de facto offense of not paying a debt. You are not in contempt of court for not paying the debt. You are in contempt for not obeying the judge's order (which, coincidentally, is for not paying the debt).

Read this, if you are so inclined. Read the whole series, if you have time. It will astound you that some of these activities are taking place in this day and age.

http://www.boston.com/news/specials/debt/

Here's an excerpt:

"Debtors often feel intimidated in this arena, and with reason. The system is tilted against them. And 150 years after the state's last debtors' prison was shuttered, some, even now, find themselves locked up for failing to pay. A Brockton man, for example, was imprisoned for four weeks over last Christmas.

More commonly, the threat of jail is a scare tactic, another way to force quick results in this rubber-stamp system, where the supreme priority in many courts is to move the flood of collection cases along - with little regard for the merits, or the dignity of individual defendants."

http://www.boston.com/news/special/spotlight_debt/part2/page2.html

[music12]

whatmoney - maybe they wouldn't jail you on the original case, but as you probably know, after judgment comes the collection case (called "supplementary process" or something like that) which is the collector's avenue for getting the money. that's where a judge can order you to pay and - as pileated said - if you don't you are in contempt.

and yes, that case i refered to was in family court but it was in essence a collection case. i haven't read pileated's links yet, but i bet i won't be surprised at what i find...

[music12]

hey pileated, did you say you saw this happen in massachusetts? was it district court?

[WhatMoney]

whatmoney - maybe they wouldn't jail you on the original case, but as you probably know, after judgment comes the collection case (called "supplementary process" or something like that) which is the collector's avenue for getting the money. that's where a judge can order you to pay and - as pileated said - if you don't you are in contempt.

Sorry, I don't know what you are talking about, re "supplementary process". There is nothing like that in my state. The collector's avenue for post judgment execution is well defined - garnishments, liens, etc. for unsecured debt. These are handled through the clerk's office or by the attorney with standard forms. The usual collection procedures once you have a judgment in hand are dictated by the state statutes. But nothing in these processes should force a debtor into contempt of court for simply not paying. If you did NOT agree to a court ordered settlement during the judgment, the court is not involved. Where's the contempt of court?

Since you were really vague, I'd suggest you give an example of a post-judgment "supplementary process" that can result in contempt of court against the debtor. None of the horrible MA court examples applied, btw.

The judge cannot order you to pay something you never agreed to pay in court. You do not go to court to sign a payment agreement dictated by the collectors, a so-called consent judgment. Debtors that don't know this should stay away from court or hire an attorney to represent them.

What if you never respond to the summons or show in court and get a default judgment. You agreed to nothing. How is the court going to find a default judgment debtor in contempt of court?

[WhatMoney]

As for not taking my story seriously, it did happen. I was there, in court, and I was threatened with jail if I did not pay the debt within 30 days. Furthermore, I am an attorney. I am not confused. I know which court I was in. Debtors only -- and a few attorneys there who were handling every single collections case (there were 100s of defendants, many lined up in the hall because everyone could not fit into the courtroom).

I would have taken one of the cases pro bono on appeal because I think what they are doing in Mass is unconstitutional. Unfortunately, I was unable to work.

Yes, in some places you can go to jail for the de facto offense of not paying a debt. You are not in contempt of court for not paying the debt. You are in contempt for not obeying the judge's order (which, coincidentally, is for not paying the debt).

Read this, if you are so inclined. Read the whole series, if you have time. It will astound you that some of these activities are taking place in this day and age.

http://www.boston.com/news/specials/debt/

...
http://www.boston.com/news/special/s...rt2/page2.html

I remember those articles from 4-5 years ago - they were posted here and discussed. Real horror stories that I've never heard from in other states - other than the NYC judgment system which seems to be run by criminals similar to MA. The jail threats are just BS from some bullies.

But if you look at the stories carefully, the contempt charges were for failing to abide to a court ordered payment plan in every case. One guy was brought in in handcuffs for contempt after he had blown off two court ordered hearings. Screw with the court ordered appearances and you can get in trouble. But that's not what I'm talking about. The abuses in Part 2 were either illegal and against MA statutes, and/or the result of debtors violating court orders. An attorney for the debtors would have prevented most of the abuses. That article is in no way typical of the court system in this country.

All it proves to me is either know what you are doing if you choose to defend yourself in court, or hire a good attorney. And if MA small claims is still that bad, move out of the f*cking state ASAP if you have small debts.

[music12]

one of the things that can happen after a judgment is entered is that the debtor is hauled into court to reveal any and all assets they may have, usually after the creditor has exhausted everything else he can think of (garnishment, freezing accounts, etc.). at that point, first if you don't show up you are in contempt and can be arrested. also if the judge decides you are hiding assets you could be in contempt. in my case, i was almost found in contempt for refusing to conduct a trial on a religious holiday (the judge "gave in" by ordering me to pay money instead, big joke).

why do you say none of the MA cases apply? at least one case this guy was jailed for 28 days because that's how long it took his relative to get money together. isn't that being jailed for not paying???

[music12]

and a court-ordered payment plan could easily be something that the debtor cannot afford. which brings us back to being jailed for not paying a debt.

just because NY and MA may be notorious doesn't mean other states are any better. one day there will be stories coming from other states too.

[WhatMoney]

one of the things that can happen after a judgment is entered is that the debtor is hauled into court to reveal any and all assets they may have, usually after the creditor has exhausted everything else he can think of (garnishment, freezing accounts, etc.). at that point, first if you don't show up you are in contempt and can be arrested. also if the judge decides you are hiding assets you could be in contempt. in my case, i was almost found in contempt for refusing to conduct a trial on a religious holiday (the judge "gave in" by ordering me to pay money instead, big joke).

why do you say none of the MA cases apply? at least one case this guy was jailed for 28 days because that's how long it took his relative to get money together. isn't that being jailed for not paying???

Yes, I mentioned the debtors exam earlier as the most common way to get a contempt of court if you don't show or lie under oath. But that has nothing to do with simply not paying. How is a judge going to decide you are hiding assets? He is not involved in the debtor exam in any way. It is between you and the creditor attorney.

The Haitian guy jailed for 28 days had violated a court ordered payment for a roofing job complaint. He must have signed a repayment agreement when he was sued - it was approved by the court - and he violated it. He was also in trouble with other county courts and had been arrested for drugs earlier. Sounds like he was "targeted".

You should NOT be agreeing to a repayment plan when you go to court. That is ridiculous. Let the judgment holder try to collect the normal way - by finding and seizing your non-exempt assets. Anyone that gets hooked into repayment plan in court is foolish. Again - default judgment debtors don't have this problem.

There are many BK members here that have money judgments on their record and have not paid a dime on them. Has any of them ever been jailed for being judgment proof? You are trying to tell me being "collection proof" and having a judgment is a crime and you can be sent to jail? Please...

Where are the all the judgment holders on this forum? Speak up! How much time y'all done since your judgments?
I can think of a couple dozen regulars on here with judgments - never paid - are they posting from the jail-house?