Best of 2010: Are local courts overstepping by helping bill collectors apply the screws?

The practice of suddenly jailing people who have failed to comply with collection requests comes close to violating a ban on imprisonment for debt. Judicial watchdogs are taking note and getting some relief, but many people desperately in debt are still helpless.

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Janelle Leslie

The practice of suddenly jailing people who have failed to comply with collection requests comes close to violating a ban on imprisonment for debt. Judicial watchdogs are taking note and getting some relief, but many people desperately in debt are still helpless.

(Editor's note: As the year ends, we are presenting some of the best articles from Crosscut's writers. This story was orignally published Oct. 4.)

Janelle Leslie recently called the police to her home near Newport, Washington. near the Idaho border, to head off a confrontation with her estranged husband. But when the sheriff’s deputies arrived, they told her, to her surprise, that they had a warrant for her arrest. When she asked why, all they could tell her was she had failed to obey a court order, which mystified her. At her request, the deputies waited until she got into the squad car to cuff her, so her 12-year-old daughter wouldn’t see.

Leslie, 39, spent the night of July 31 in a jail cell, which she shared with three female inmates who were in on drug charges and who, unlike her, had been in jail before. “It was a huge shock,” says the soft-spoken mother of three, who answers questions with “yes sir” and “no sir.” She found the experience “pretty hurtful and embarrassing.”

She was released the next day after posting a $90 bail. Still not knowing exactly what she was jailed for, she was told to contact the Yakima County District Court. She did, and learned she had a court date on Aug. 19. After driving four hours to Yakima that day to make the 1:30 hearing, she finally learned that a civil default judgment had been entered against her in 2006 for about $1,000 in unpaid medical debt incurred while she was living in Yakima. A judge subsequently had issued a bench warrant for her arrest because she hadn’t appeared at a hearing to examine her finances for collection purposes.

Leslie says she and her children had moved from Yakima to Alabama in early 2006 and so she never received notice of the judgment or hearing. On top of that, the medical bill was for an MRI for her son that should have been paid in full by the state Medicaid program.

Leslie’s situation is hardly unique. Even though the constitutions of Washington and most other states explicitly prohibit jailing people for debt, and debtors’ prisons in the U.S. were closed in the 19th century, Leslie and many other people in Washington and throughout the country are still being incarcerated in civil debt cases. They typically are charged with contempt of court for failure to appear at a hearing.

In many cases, judges order that their bail money be turned over to the collection agency to satisfy their unpaid debt — a practice the Federal Trade Commission recently urged Congress to halt. Sometimes bail is set at the same amount as the judgment debt, which makes the court look like an arm of the collection agency.

“We’re supplying this big collection tool for collection agencies,” says Fred Corbit, senior attorney for the Northwest Justice Project in Seattle. “Creditors get bailed out, and taxpayers are paying a lot to help them in the process.”

Meanwhile,  the American Civil Liberties Union has released a report documenting five cases, including in Washington state, where people have been imprisoned for failure to pay fines and costs associated with their criminal sentences.

While courts in Washington and around the country do not compile statistics on how many people are jailed in such cases, the practice is not at all uncommon. During the Aug. 19 debt collection calendar hearings in the Yakima County District Court, Judge Ralph Thompson issued bench warrants against half a dozen judgment debtors who didn’t show up.

That day, Thompson released Michael Kotelnicki of Selah from jail after Kotelnicki agreed to forfeit his $800 cash bond to Yakima Adjustment Service, a collection agency. According to court records, Kotelnicki had a judgment against him for $704 owed to Yakima Valley Radiology, plus about $300 more in fees and interest. He was arrested because he failed to show up for a financial examination hearing in April.

James Hurley, a Yakima attorney who represents Yakima Adjustment, one of the handful of Yakima debt collection agencies, says he seeks about 60 bench warrants a year, and that a dozen to two dozen of those result in people being arrested and jailed.

The Minneapolis Star-Tribune reported in June that there were 845 arrests in civil debt cases in Minnesota in 2009 — a 60 percent increase in four years. The newspaper’s report attributed the increase to the tough U.S. economy, high consumer debt, and a growing industry led by lawyers who buy up bad debts and use aggressive means to collect.

“It’s within the judge’s contempt powers, and warrants get issued routinely,” says Yakima County District Court Presiding Judge Kevin Roy. “When people are picked up, it gets their attention. I don’t see them coming back a second time.”

"We have someone who incurred a bill, who didn't pay the bill, who ignored the billing from the original creditor,” Hurley explains. These people often have ignored notices from collection agencies before litigation was filed. The purpose of the bench warrant, he adds, “isn’t to arrest the person, it’s to bring them before the court so the court can deal with them.”

But attorneys who represent debtors say incarcerating them, even briefly, is abusive, unfair, and often legally flawed — though they recognize judges’ authority to order people arrested to enforce their civil orders. “Collectors are now using this as a weapon, and the courts don’t recognize it’s a tool for harassment and to put pressure on people,” says Michael Kinkley, a Spokane attorney who is state chair of the National Association of Consumer Advocates.

“It does make you wonder about the whole debt collection process,” Corbit says. “In no other [civil] process do you get sent to jail for missing a hearing.”

Judge Roy acknowledges that. “I’ve never ordered a warrant for not showing up for a deposition or witnesses not showing up. And people don’t show up for jury duty all the time. I’ve never seen a judge order a warrant on that.”

Much of the debate over collection agencies’ aggressive tactics hinges on whether debtors truly are able to pay but simply don’t want to and deliberately ignore the court process. The vast majority of debt judgments in Washington and around the country are entered in default proceedings, without the defendants ever appearing, experts say.

“Why aren’t people showing up?” says Corbit, whose Northwest Justice Project collaborated on a 2009 court-watching project in King County to see how debt cases were being handled. “I think most of these people are broke.” Hurley admits that his agency closes cases “a fair percentage of the time” because the debtor has no collectable income or assets.

In Yakima County District Court, as in most district counts around the state, the large majority of civil cases are debt cases. On Aug. 19, the courtroom is filled with humbly dressed, working-class people who look forlorn. Many are out of work. Three collection agency attorneys, including Hurley, sit at the desk in front of Judge Thompson and essentially run the proceedings. Thompson swears in eight defendants who have a judgment against them. Then he sends them out into the hallway to meet with collection agency representatives for a financial examination to see whether they have income or assets that can be seized.

None of the eight is represented by an attorney. But Corbit says some defendants who have a judgment entered against them — and may have been jailed for non-appearance — actually have a strong case that they didn’t owe the money.

Such was the case for Danny Roe, a Spokane business consultant and former Gonzaga University basketball star. In 1992, a dentist sent him a $650 bill which he refused to pay because the doctor had broken off two numbing needles in his mouth. Roe filed a dental disciplinary complaint against him. The dentist also sued him.

Many years later, in September 2006, Roe was playing golf in Liberty Lake when he lost his checkbook. The police department called him and said someone had turned it in. When he went to pick it up, the police arrested him on a bench warrant but couldn’t tell him what it was for. He spent the night in county jail in a cell with a large, intimidating drug addict who was suffering from withdrawal.

Roe was charged with contempt of court for failure to appear in court for a financial examination in the dentist’s case. A lawyer for the collection agency, Bonded Adjustment in Spokane, told him if he signed an agreement to pay the debt, he would have him released. Roe refused to sign. Instead, Roe’s elderly parents drove in from Idaho to post his $250 bail. “I was very humiliated and angry,” he says.

When he got out of jail, he called Kinkley, who contacted the collection agency and threatened to sue for unlawful arrest. Kinkley showed that Roe could not have been served at his workplace with notice of the hearing, as the collection agency claimed, because he worked in a secure area that no process server could have entered. Bonded Adjustment quickly agreed to pay Roe $25,000 to settle the case — about $3,000 for each hour he spent in jail.

Kinkley has filed several similar suits against Spokane-area collection agencies and lawyers. As a result, over the last two years Bonded Adjustment and other Spokane collection agencies seldom seek bench warrants in debt cases.

“We feel the liability is too high,” says Marc Roecks, a Spokane attorney who represents Bonded Adjustment and who settled the Roe case. There’s too great a risk, he says, of faulty service of the court summons, exposing collection agencies to lawsuits under federal and state law, including for unlawful arrest. “Consumer attorneys in Spokane are on top of these cases enough that they catch the mistakes, and collection agencies are paying for those.”

But there’s no similar deterrent in Yakima and other Washington counties. Hurley plans to continue seeking bench warrants against judgment debtors who don’t appear for financial examinations, and pressing defendants to forfeit the bail money to pay off the debt. “Failure to appear is contempt of court,” he says. “For every 100 defendants who claim they never received proper service, there might be one person with a legitimate complaint.”

Still, Judge Roy expresses some qualms. “We’re very sensitive about having some type of debtors’ prison,” he says. He also acknowledges that he and other judges “typically have very little information when we issue a bench warrant” because the case volume is so high. “Do they have a good reason for not being there? We typically don’t know. No one is fighting on the other side.”

Elected officials and regulators are starting to take notice. Democratic Sen. Al Franken of Minnesota says he will introduce a bill in Congress requiring collectors to provide alleged debtors with more detailed information about what they owe and verify debts if consumers challenge them. It would allow triple damages in lawsuits against alleged violators. Collectors would be limited in seeking bench warrants, but judges would still be allowed to order people arrested for not showing up in court.

And in an Aug. 16 letter to Franken, FTC chairman Jon Leibowitz said his agency currently is investigating the debt-buying industry and plans to issue a report with policy recommendations. The FTC recommended that collectors strengthen efforts to make sure alleged debtors are properly served with notice of court hearings, and that collectors explore letting debtors participate in hearings online or by phone.

In addition, Leibowitz wrote, Congress should consider barring collectors from requesting or accepting forfeited bail to pay off debt judgments. Using bail money to satisfy judgments may allow collectors to sidestep rules that block them from seizing exempt assets such as Social Security payments. And it gives the public “the misimpression that judgments debtors are being incarcerated for failing to pay the judgment creditor.”

Asked about regulatory oversight in Washington state, a spokeswoman for Washington Attorney General Rob McKenna said the issue is not within his office’s jurisdiction.

As for Janelle Leslie, her hard-luck story, and perhaps news media attention, made a difference. On Aug. 19, sitting in a small room off the courtroom with Hurley, a Yakima Adjustment representative, and this reporter, Leslie started sobbing when asked if she has any income or assets. Regaining her composure, she said she is on her last weeks of unemployment benefits, that her husband has just left her, and that his family is evicting her and her 12-year-old daughter from the house. That silenced the lawyer and collection agency staffer. They subsequently dropped the case against her.

Later, Leslie wryly recalls her daughter’s comment after she told her about the whole saga. “The lesson,” the girl said, “is always pay your bills.”

Doug Nadvornick contributed to this article.


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