Invasion of the Body Attachments – No Wait – They Are Already Here
I do not normally read the electronic version of the weekly ABA Journal, which shows up in my email periodically. But the August 24 addition caught my eye because I am a payday lending news junkie, and the teaser sucked me in with: “Payday Lenders Using Courts to Create Modern-Day Debtors’ Prisons in Missouri, Critics Say.” Apparently, Missouri payday lenders with judgments are summoning debtors to court for an examination, then requesting a “body attachment” when the debtor fails to appear. The Journal includes this quote from an article in the St. Louis Post-Dispatch:
“Debtors are sometimes summoned to court repeatedly, increasing chances that they’ll miss a date and be arrested. Critics note that judges often set the debtor’s release bond at the amount of the debt and turn the bond money over to the creditor—essentially turning publicly financed police and court employees into private debt collectors for predatory lenders.”
Ohio law includes at least two options for incarcerating debtors for civil debts. Revised Code Chapter 2331: EXECUTION AGAINST THE PERSON, on the books essentially unchanged since 1953, directs how to “arrest such debtor and commit him to the jail of the county until he pays the judgment, or is discharged according to law.” Chapter 2333: PROCEEDINGS IN AID OF EXECUTION contains the procedures for judgment debtors’ exams, and allows for body attachments if the judgment debtor fails to appear. Again, these provisions remain virtually unchanged since their enactment in 1953.
I hesitate to point out the existence of these laws because those of us who defend debt collection cases know that all varieties of debt collectors in Ohio have become much more aggressive in their collection efforts, recording judgment liens and threatening foreclosure, or executing against families’ cars with value above the exemption amount for a motor vehicle. While I am sure creditors’ attorneys are well aware of the collection tools available in Ohio, I do not want to shine a spotlight on these particularly reprehensible options.
Of course, technically the Missouri civil debtors, and Ohio debtors, are not arrested for failing to pay their debts – they are arrested for failing to appear when summoned. The ACLU already exposed this trap for criminal defendants in its 2010 report: “In For a Penny: The Rise of America’s New Debtors’ Prisons”, which chose Ohio as one of five states in which to highlight abuses.
Occasionally legal aid attorneys find themselves on the opposite side of the fence, attempting to collect a debt from a recalcitrant or elusive judgment debtor instead of defending against a judgment. I understand the frustration of struggling to collect a judgment, but really – body attachments? A lot has changed since 1953. Ohio updated RC 2329.66 Exempted interests and rights in 2008. Isn’t it time that Ohio exempted debtors’ bodies from the options for garnishment and attachment?