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Mar 2011Before bankruptcy: Can I go to jail if I ignore this summons?
Posted by Robert Weed / in Before Bankruptcy, warrant in debt / 35 comments
Around 100,000 people a year get arrested because they owe unpaid bills and ignore a court paper. Does this happen in Virginia. Yes!
I’m a Virginia bankruptcy lawyer. About one-third of my clients don’t come to see me until the sheriff brings court papers to their door.
Then it’s panic time! Here are questions people ask.
“What do these papers mean?”
“Is it too late to file bankruptcy? ”
And the big question, “Can I go to jail?”
First the good news. In case you didn’t learn this in school, debtor’s prison was abolished in America in the 1830’s. You can’t go to jail for not paying your debts.
You can't get arrested for not paying your bills. You can get arrested for ignoring court papers.
Here’s the bad news. You can get arrested for not appearing in court to answer questions from your creditor.
The Wall Street Journal found that over 5,000 people were arrested for that last year in just nine big counties. (If smaller counties did the same thing, and I hope they don’t, that would calculate to 100,000 arrests each year.) Wow!
Can that happen to you? Yes. Here are the steps that could get your arrested for a debt lawsuit in Virginia.
The first paper you get is a warrant in debt. Warrant makes it sound worse than it is. (And just ignoring court papers is never a good idea.) The warrant in debt cannot get you arrested. It’s the paper when a bank, credit card company, can loan or debt collector says, “hey, you owe us this money.” People often call the lawyer for the creditor when they get a warrant in debt and ask, “do I have to go to court.” The answer you get is, No. But when you don’t go to court you admit you owe the money.
Once you miss that first court date, the machinery of the law goes to work to collect money from you. If the creditor knows where you bank, or where you work, they can file papers for a garnishment. You get notice of the garnishment about the same time you find out your bank account is frozen or your pay is short. There’s a court date on the garnishment and people think that’s there chance to dispute it. It’s not. That’s the day the bank or your payroll is supposed to turn the money in. When you didn’t show up at the warrant in debt court date, you automatically gave the creditor the right to garnish you.
If the creditor doesn’t know where you bank or work, they can file a “summons to answer interrogatories.” That paper tells you, come to court and answer our questions so we can garnish you.
Some people think a “summons” sounds less dangerous than a “warrant.” So if they ignored the warrant in debt, they should be able to ignore the “summon to answer.” Bad idea.
The summons to answer comes with an “or else.” If you don’t appear, the judge can order you arrested. Usually you get one more chance. Your last chance is called a Rule to Show Cause. The show cause tells you to come to court to explain why you shouldn’t be arrested. (If you explain, “Sorry, I didn’t know, I’m here now”–that usually works. )
If you miss the “show cause,” the judge will issue a capias. Capias is an order to the sheriff to pick you up and bring you in.
That’s where you can end up if you ignore court papers. So if you get a warrant in debt for a bill you owe and can’t pay, why start down that road at all?
Bankruptcy is a new start in life and a clear field for future effort. That’s usually a lot better than a free ride to the court house courtesy of the sheriff.
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Robert Weed has helped fifteen thousand people file bankruptcy in Northern Virginia. Robert Weed is a frequent panelist and speaker at the meetings of the National Association of Consumer Bankruptcy Attorneys. He is one of Northern Virginia’s most experienced personal bankruptcy lawyers. As an expert on changing consumer bankruptcy laws, Robert Weed has been interviewed on local and national TV and quoted in newspapers across the country.
Robert Weed
I’m suing a debt negotiation scam for letting one of their Virginia clients get arrested. They told this young woman that they would “handle it” and that she did “not need to go to court” when she got a show cause on a judgment on a debt they were supposedly negotiating for her. (She and her husband had paid these scammers $5000 over a year to negotiate a total of three credit cards. They never settled any of them.)
After she spent four hours in jail–while her husband posted bond–she knew she needed to see a real bankruptcy lawyer and came to talk to me. We got her bankruptcy filed in about a week. And before the end of this month, we’ll be suing these debt settlement “lawyers” for legal malpractice.
Thomas A Pratt
I have a warrant in debt and am to appear May 9 2012. I filed bankruptcy several years ago. Soon afterwards I got a credit card application from Capital One which I foolishly accepted. I used it and then could not pay and stopped paying the minimum. I live on SS and do odd jobs for free rent, have basically no assets except furniture and a paid off 14 year old car. The debt is over $3,000 and there is no way I can pay it. What are my options and can they garnish my meager SS check.
Robert Weed
Thomas: The creditor cannot garnish your social security. They can’t garnish it from Social Security Administration and then also cannot garnish it out of your bank account. President Obama put in a new regulation that your bank has to LOOK if they get a garnishment, and if social security is the ONLY thing coming into your account, they are NOT supposed to send that money in. (Make sure if your grandchildren give you $100 for your birthday, do NOT put that in the bank. Cash it.)
So doing nothing might work for you. Do you live in Northern Virginia? If you do, we’d be glad to look over your situation in detail. No charge.
michelle
Hello, I have read your website or blogs you’ve written about bankruptsy. My husband had recently got a wage garnishment paper in the mail that has to do with Winchester Medical Center. This bill was sent to us after the hospital was supposed to help us pay it. This was about 5 years ago or so. I know it was before my father had passed away and he’s been dead for over 4 years. I believe we only got a bill once or twice in this around 5 year period. I understand that only 25% is allowed to be taken out of his check. He makes $9.75 an hour and gets paid by weekly. He gets around 32-39 hours a week. Is it true that only 25% is allowed to be taken? If we decide to go bankrupt. How much are your fees? And do you help those who live in the Winchester, Virginia area?
Thank you for your time.
Robert Weed
Michelle:
Yes, they can only take 25% of his after-tax income.
I don’t serve the Winchester Area. I’d suggest David Cox, Cox Law Group. http://coxlawgroup.com/.
Angela
Hi I would like to file for bankruptcy. I owe a lot of credit card. What are the fee? By the way I lived in DC
Robert Weed
Angela:
I’m sorry that I don’t go into DC as a lawyer. (Years ago I worked in DC. Now I only got there to see my dentist–same guy for thirty years–and to see the Washington Nationals play baseball.) There are two DC bankruptcy lawyers that I know because they also work in Virginia.
Ammerman & Goldberg
Harris S Ammerman
1115 Massachusetts Avenue NW
Washington, DC
and
Edward Gonzalez, Esq
2405 I St., NW Ste.1A
Washington D.C., DC
Phone:202-822-4970
Phone:202-638-0606
Both are members of NACBA. http://www.nacba.org/Home/AttorneyFinderV2.aspx
Dawne
I filed bankruptcy in Dec. 2010. My lawyer never appeared for the creditor’s meeting after I paid him $4900. I called his office and left several messages to no avail. His Paralegal literally ran his office. He instructed me to pay plan payment beginning in Jan. 2011. In May of 2011, I received an order from the court directing me to turn over my tax returns to the trustee. I called my lawyer left another round of messages to no avail. I waited three days and went into his office. I was told, he was unavailable. I spoke with the paralegal who told me there was an amended plan done which stated that I must turn over the returns, but she searched the file only to discover they had not notified me nor had they sent me a copy of the amended plan. I had already spent some of the money and needed to spend the rest on an HVAC unit for my home. I waited for one hour and four two mins. to speak with my lawyer. when he finally saw me, I explained that he hadn’t informed me and he said, he didn’t have to tell me. I should have known that every bankruptcy had tax return turn over language in it. I was extremely upset. He said, he would just file a motion with the court to ask for permission for me to keep the returns. Serveral months pasted with me calling every week never being able to speak with him. The trustee filed a motion to dismiss for failure to comply in Aug. We have had five court dates which I appeared for each and on each ocassion the lawyer appeared and told me, the court had continued the hearings. During the last hearing, the lawyer told me, to jsut give up my house because Judge Lipp was not going to hear my motion and he left the court house. I returned to the courtroom and asked to speak with the judge because it was than the end of Nov. and getting cold and we still did not have any heat in our house. The clerk told me that my lawyer had requested four of the continuances. I was stunned. My trustee was there and told me that he suggested to my lawyer that he file a motion to modify my plan so I could get the HVAC unit. I went to the lawyers office and he told his paralegal to prepare a withdrawal. I asked to speak with him and as I was waiting in the paralegal’s office he phoned and told her to tell me to leave. I knocked on his office door and he said come in. I asked him why had he misled me. He would not allow me to speak and told me to get the hell out. so I left. Now the hearing is still scheduled for Jan. 29, 2013. What do I do?
Robert Weed
Dwane:
Where is this going on? Email me directly at [email protected]. Usually I get an email address from people who post here and I didn’t get one from you–where is this happening?
Kathy
Oh that scares me!!!!!
I’m in Raleigh NC. Do you know of an attorney here?
My debts aren’t so high but I’m on disability making less than I owe. My mom recently put her home in my name. I had to give up a car but need one so bad! With bad credit (400 range) & turning in the car is there any possible way I could quickly buy a used car?
I make $700/month. House is old, needs repairs, I’m single & I can barely afford the utilities. I’m hoping to file chapter 7. But I’m scared now of the attorneys out there! Thank you greatly for your blogs & suggestions!!!!! HELP!!!! 🙁
Robert Weed
Kathy:
Especially since mom put her house in your name, you need to talk to a bankruptcy lawyer, NOW. People are all the time transferring their real estate to their children and it is a mistake very frequently.
John W
Highly informative site; exceptional! Here’s my issue (pre-bankruptcy filing): i received a subpoena to answer Interrogatories and a request for production of documents on a landlord/tenet judgement against me (don’t get me started as to the judgement’s validity, but now i’m stuck dealing with it!). The subpoena is in advance of an upcoming Summons to Answer Interrogatories where of course I will appear in person to answer questions as to my ability to pay the Judgement. It is rather apparent that the Plaintiff in this matter has simply copied Interrogatory and Document Request Subpoena forms off the Internet, etc. in that the Interrogatory request demands interrogatory answers (ridiculously going back 7 years, in addition to ones have nothing to do with ability to pay) and document production (going back 3 years for direct document requestments and 7 years for any documents referenced via Interrogatories) within 21 days of receipt of the summons. The 21 days is well before the Court has indicated I am required to submit/produce said answers and documents (i.e., subpoena was issued 7/23; I received subpoena via Certified Mail 8/5; the Court requires my production of responses/documents directly to the Court by 9/9, yet the Interrogatories and Document Request demand my response “within 21 days of the service of summons” pursuant to Rule 4:8 SC of VA).
As such, could I Answer with Objection to Form (request for answers are well in advance of when the Court actually says i have to reply to them)? My intent is not to be evasive but, I certainly do not want to:
1) have to answer a written set of Interrogatories when I will be appearing on 9/23 to answer Interrogatories (I don’t believe i’m required to answer interrogatories that i’m scheduled to appear in Court to answer 9/23?), and
2) if i can avoid production of documents by objection here somehow as I am concerned as to damaging my eventual filing for (Chap. 7) bankruptcy in doing so? I do not believe I will have my money together for a bankruptcy filing prior to the 9/23 Summons to Answer Interrogatories, so while I certainly do not want to be evasive in answering the subpoena (I have nothing to hide in this matter), I also do not want to erroneously provide information when I technically do not have to that would hinder or negate my eventual bankruptcy filing. Any advice is greatly appreciated; thank you, Robert.
Robert Weed
John:
I’m nervous about giving you specific legal advice on something like that. You need to make sure that you do show up! Besides that, I can’t give you any advice.
joyce harper
i live off 777.00 a month . i have no money to pay creditors. i know i owe money but i have none to pay. i dont have job only social security check once a month.. what can i do when i go to court
Robert Weed
Joyce:
Nobody can garnish your social security, so you just need to say, I owe the money, I can’t pay, all I have is social security and you can’t garnish that. That will work fine.
Lynne
I received a warrant in debt with a hearing date in February for a medical bill. It is for services rendered for my son last year when I had a job. I am no longer working (but have been applying everywhere I can find) and have three school age sons. We rely solely on my husbands income to get by. Things are so tight we’ve had to get a hardship modification to be able to keep our home because we were days away from foreclosure. Until I find a job there’s no way we can pay this and keep financially afloat. How can I work this out? Thank you so much for any advice you can give me!
Robert Weed
Lynne:
You can call and try to work it out. You should also show up for the court date and ask for a trail–then try again to work it out. They do NOT have to agree to anything unless you go nuclear and file a bankruptcy. So just see if they will work with you.
Eric H
My brother has skipped his Warrant In Debt hearing. He is not planning to go to his Garnishment hearing, since they are “just going to take his money anyway.”
When would the garnishment of his paycheck start?
I told him he should go to his Garnishment hearing because he will look better to the Court even if he already has the default judgment against him. According to you blog above, you state he could be arrested for not showing but what is the likelihood of this happening?
Robert Weed
Eric:
No, he can’t be arrested for not showing up at his garnishment–they are “just going to take his money anyway.” He could be jailed for ignoring a Summons to Answer–which means tell us where you work so we can garnish you.
If he got a mailed copy of the garnishment notice, probably his next paycheck will be short. But it depends on how long it take for the paper from the court to find the people who actually do his payroll.
What I wonder about is why he’s not going to talk to a bankruptcy lawyer. That’s the suggestion I’d have for him. See if it make sense for him to stop the garnishment and begin to fix his credit.
Some people put off filing bankrutpcy because they want to “protect their credit.” Even people who already have bad credit sometimes give that stupid excuse. But if there’s GARNISHMENT then there’s no way to make his credit worse. Bankruptcy almost certainly would make it better.
Eric H
Thank you for the quick reply.
He was mailed a garnishment summons however it doesn’t have his current work address, so he is just going to wait until he is sent a Summons to Answer.
Talking to him last night, he informed me he filed for bankruptcy back in 2007. Can he file once again?
Robert Weed
Eric:
Every eight year for Chapter 7–so one more year to go–the eight years is from the filing date, not the discharge, so take a look at when it was filed.
Mike
I was just served by a sheriff with a civil summons( i am in Ky) stating that legal action has been filed against me from a credit card debt collector. i have no job, no car, no home. I live in a apartment with my wife. She is not listed on the summons and was never a co signer of said debt.
Can her wages be garnished? And can we be evicted?
Thank you for any help
Robert Weed
Mike:
I don’t know anything specifically about Kentucky. In a few, mostly Western states, both Husband and Wife are on the hook for most debts while they were married.
In Virginia, and most of the Eastern states, his are his and hers are hers and they cannot go after both of you unless you both signed.
Mike
Ty for you help Mr..Weed it is greatly appreciated.
Mike
Sorry for the bothering you again Mr. Weed. I have learned that Ky in not a community-property state. most attorneys I have spoken to will give a very short free consultation as i can’t afford anything else. I have been told that i am most likely “Judgement proof”. I have no income,other then my wife’s, own no property,nor do i have a automobile. I am NOT listed on her bank account and any debt incurred was before marriage.
I have also been told to not even respond to this summons UNLESS i receive one to appear. That “winning a judgement is one thing,collecting on one is another” and the old saying of you can’t take from me what i don’t have.seems to apply to me.You were kind enough to take the time to respond to me so any advice would be appreciated.
**I would also like to note to anyone reading this. that Mr. Weed has been extremely helpful and i would hope that any person seeking a bankruptcy lawyer in Virginia would consider using Mr. Weed as their representative.**
Robert Weed
Mike:
All makes sesne to me. Thanks for the endorsement.
Mike
Thank you again Mr. Weed .I guess i should rest a little easier and not stress myself into a heart attack.
Have a great weekend sir.
WHernandez
Hello
I owe money to 4 credit cards. We stopped paying when my husband got laid off. since then we have not been able to pay them. We both work but the money make is to pay our expenses and sometimes its just not enough to cover everything.
We have both got summons and court papers but we have not shown to any. We can’t pay. I’m very scared I don’t want to get arrested. we live in Illinois.
Robert Weed
Wendy:
Talk to an Illinois bankruptcy lawyer. Bankruptcy is in the law to help you.
Whernandez
Will we able to keep paying our house and 2 cars if we file for bankruptcy?
Thank you very much for taking the time to answer our questions.
Robert Weed
Wendy. It most places you can’t keep a paid for Rolls Royce.
Seriously a lawyer in your state needs to look at your complete situation to answer that kind of question.
Bryan Smith
Hello, I just today received a civil summons for a debt collection. It doesn’t state the type of account, and it is also not in my name. It’s actually a girls name then aka my name. The original agreement supposedly signed by me was also not included. I fully plan on going to my court date, but do they even have a case since the name that opened the account is clearly not mine? It states the account was opened online. I’m in Tennessee.
Robert Weed
Bryan:
Besides going to court, you may have an FDCPA claim. You might be able to sue them–or their lawyer–or both, for suing you when you’re not that girl. You should look for a lawyer in Tennessee who does FDCPA work. One good place to look, is here. http://www.consumeradvocates.org/find-attorney
Tom Williams
A judgment was awarded against me for assault and battery in the Circuit Court of Prince William. The amount of the judgment was $100,000.00. I don’t have $100,000.00. I can not pay my lawyer anymore. I can’t go bankrupt I am told so the only thing that can happen to me is that my pay can be garnished? I rent, have $2,500.00 in the bank and have $12,000.00 in my 401k account. My question to you is……is there anything I can do? What is your advice? Thanks for your response.
Robert Weed
Tom:
You can get garnished for 25% of your pay. Can you live with that? Depending on how much you make, getting garnished for 25% of your pay is FOREVER.
MAYBE you could file a Chapter 13 that would provide for a lower payment. Now the court looks really hard at chapter 13’s when there’s been a judgment for doing something intentional. There’s a formula on how much you have to pay in Chapter 13. To do a Chapter 13 to pay an assault and battery judgment, the court would definitely want you to do better than that formula.
How much more? If you go over your complete situation with an experienced lawyer, the lawyer might have a good guess.