Shining Spotlight on Racket of Debt Collection

[Sharing Lights]

It provides:
(1) A judge shall disqualify himself or
herself in a proceeding in which the judge's
impartiality might reasonably be questioned,
including but not limited to instances where:
(a) the judge has personal bias or
prejudice concerning a party or a
party's lawyer, or personal knowledge
of disputed evidentiary facts
concerning the proceeding;
With respect to “personal bias or prejudice concerning
a party or a party's lawyer,” our Court of Appeals has
ruled that “[m]ere allegations based on a judge's
background are insufficient to suggest partiality toward
the parties before him.”

See Greqory v. United States, 393


A.2d 132, 143 (D.C. 1978). Thus, as we concluded in
Advisory Opinion No. 2, there is no presumption of bias or
prejudice simply by virtue of the judge's past employment.
120 Daily Wash. L. Rptr. at 1751.
As Canon 3C(1) (a) demonstrates, there is no question
that if the inquiring judge, by virtue of his past
employment at the Department of Justice, has "personal
knowledge of disputed evidentiary facts," then he must
disqualify himself. The inquiring judge must take care to
insure that this is not the case. On the facts as
presented, however, it would appear unlikely that he will
have personal knowledge of disputed evidentiary facts.
Canon 3E(1) (b) of the 1990 Code, which is
substantively unchanged from Canon 3C(1) (b) of the 1972

Code, provides in relevant part that a judge should also
disqualify himself or herself where:
(b) the judge served as a lawyer in the
matter in controversy, or a lawyer with
whom the judge previously practiced law
served during such association as a
lawyer concerning the matter...


The facts given the Committee indicate that the
inquiring judge would not likely have served as a lawyer in
any matter coming before him in Superior Court. On the
other hand, if all lawyers employed by the Department of
Justice, including those in the United States Attorney's
Office, are deemed to “practice law” together, the language
of Canon 3E(1)(b) would suggest that disqualification would
be required.
The commentary to Canon 3E(1)(b), however, limits this
language with respect to judges formerly employed in
government.

It states:
A lawyer in a government agency does
not ordinarily have an association with
other lawyers employed by that agency
within the meaning of Section 3E(1)
(b); a judge formerly employed by a
government agency, however, should
disqualify himself or herself in a
proceeding if the judge's impartiality
might reasonably be questioned because
of such association.
Thus, the mere fact that lawyers from the United States
Attorney's Office were employed by the same government
agency as the judge, that is, the Department of Justice,
would not alone be sufficient to require the inquiring
judge to disqualify himself.
See Advisory Opinion No. 2,
120 Daily Wash. L. Rptr. at 1751. Cf. United States v.
Zarqari, 419 F. Supp. 494, 505 (N.D. Cal. 1976).

The facts forming the basis of this inquiry are
distinguishable from those analyzed in Scott v. United
States, 559 A.2d 745 (D.C. 1989).

In Scott, the Court of
Appeals concluded that, without the consent of a defendant,
a trial judge cannot handle a criminal matter prosecuted by
the United States Attorney's Office while actively
negotiating for employment with the Justice Department's
Executive Office for United States Attorneys.

[The
employment sought by the trial judge involved "oversight
responsibility and policy guidance to the Debt Collection
Units in the United States Attorney's Offices.”

559 A.2d at
750.] The Court of Appeals concluded that “from the
perspective of ‘the average person,’ a fully informed
person might reasonably question whether the judge ‘could
decide the case with the requisite aloofness and
disinterest when he [was seeking] employment [in the
prosecutor's executive office in the department
prosecuting] the case.’” 559 A.2d at 750.


There is a significant difference, however, between a
judge who is seeking an employment position, where the
employer is in a position to either confer or withhold a
benefit, and a judge who has left an employment position.
Once the judge is no longer in the role of applicant, the
rule providing that partiality cannot be presumed based on
a judge's background becomes controlling.


In sum, the Committee concludes that the inquiring
judge need not disqualify himself from criminal matters
where the offense charged was committed while he was
employed by the Department of Justice unless he has
personal knowledge of material facts, he has served as a
lawyer in the matter in controversy, or his impartiality
might reasonably be questioned because of some
particularized former association with a lawyer who served
as a lawyer concerning the matter.

[Sharing Lights]

The Minneapolis collection agency repeatedly called Lisa and her husband, Michael, according to a lawsuit filed by the Minnesota attorney general, and demanded that the couple pay a debt owed by one Lisa Sterns.

The couple, just as repeatedly, told the collector they didn't know any Lisa Sterns and asked the company to stop calling.

Allied ignored the couple's requests. At one point, the collector insisted that the Burks were lying or, if Lisa Burk were not Lisa Sterns, that she knew Sterns and could tell Allied Interstate where to find her. It took intervention by the attorney general's office for the calls to finally stop.

The Burks' experience with abusive collection agency tactics was annoying.

Paul Alappat's encounter with a collector was expensive.

Alappat said he was called two or three times by Buffalo, N.Y., collection agency Capital Management Services about a Chase Bank credit-card debt. Alappat told the collector he had never possessed a Chase Bank card and asked them to stop calling him.

When he applied for a home-equity loan two years later, however, the collection showed up on his credit report. H

is lender told him that if the $394.74 debt were not resolved, the loan couldn't be made.

"Since I was in a hurry to get the loan approved," Alappat said, "I paid the full amount, including the interest."


Bullying the innocent
Alappat's got company. Regulators say collection agencies increasingly are harassing innocent people and badgering consumers into paying money they don't owe. More people complain to the Federal Trade Commission about debt collectors than about any other industry, and consumer attorneys say a booming trade in old, poorly documented debts is fueling the problem.

Consider:

The FTC charged that as much as 80% of the money collected by Capital Acquisitions and Management (CAMCO), a large debt-collection firm, came "from consumers who never owed the original debt in the first place." These consumers typically paid the company to stop its harassment of themselves, their families, their friends and their co-workers. CAMCO agreed to a $300,000 civil penalty in March 2004, but in the ensuing eight months the problems continued. The FTC received more than 2,000 additional consumer complaints about the company -- three times more than the agency received in the two years prior to the settlement. The FTC eventually succeeded in shutting CAMCO down.

In July 2005, the FTC won a record $10.2 million court judgment against National Check Control after accusing the debt collector of illegally threatening consumers with arrest and wage garnishment. Again, many of the consumers targeted by National Check Control didn't owe the original debt, the FTC said.

Allied Interstate, the company that contacted the Burks, was sued by the Minnesota attorney general for repeatedly calling innocent consumers despite requests to stop. Allied eventually agreed to a settlement that prohibits it from contacting such consumers after being orally told that they don't owe the debts in question.

Applied Card Systems hassled relatives, neighbors and employers with repeated phone calls in its efforts to track down debtors, according to the FTC. The company ignored requests to stop calling, and its representatives sometimes used obscene language when its hapless targets protested that they didn't know how to contact the debtors. The company agreed to a consent decree that prohibits it from harassing consumers.

Collectors cross the line
Debt collectors protest that most firms are ethical, law-abiding and provide a needed service that helps reduce borrowing costs for all consumers. But the new economics of debt collection can encourage belligerent campaigns, including dogged pursuit of innocent consumers.

As I discussed in "Zombie debt is hard to kill," there is now a booming market in the pursuit of debts so ancient that they used to be considered uncollectible. This year a whopping $110 billion of such debt is expected to be sold to collection agencies, up from virtually nothing 10 years ago.

Because the old liabilities cost collectors as little as 25 cents for each $100 in face value, companies can make a profit if they can get debtors to repay even a tiny fraction.

Along the way, some collectors realized they also could squeeze money from people who didn't even owe it.

Some consumers pay because their finances are so disorganized they don't realize the debt isn't theirs. Others are coerced into paying by illegal threats of lawsuits or ruined credit. Some, like Alappat, pay rather than risk losing a desired loan.

'Why are they allowed to do this?'
The collectors are nothing if not persistent. Mary Kitzmann of Alexandria, Minn., endured four months of calls from Allied Interstate over a debt she didn't owe before the state attorney general's office succeeded in getting the company to admit

it had made a mistake.

Five months after that admission, Allied called Kitzmann again, trying to collect the bogus debt.

Some consumers endure collection attempts from a string of different companies as one collector sells its uncollectible debts to another.

A collector tried to dun Phyllis Maurice of Whittier, Calif., for more than $23,000, saying she owed the money in advertising services for two businesses: a detective agency and a psychic consultancy.

"I have been a preschool teacher for over 30 years and have never owned (either business)," Maurice said.

Maurice enlisted the help of an attorney friend who wrote the collector a strongly worded letter, demanding proof that the debt was Maurice's. Maurice hasn't heard from that collector, but later she got a call from another collection agency about the same debt.



Your rights and how to use them
Under the Fair Debt Collection Practices Act, collectors are supposed to advise consumers that they have a right to dispute the debt, but that if consumers don't do so promptly -- and in writing -- the collector can assume after 30 days that the debt is valid.

Once collectors are notified that they've contacted the wrong party or that the consumer denies owing the debt, the companies are supposed to provide proof of the debts' validity. If they can't supply the proof, collections are required by law to cease.

Of course, some collectors simply ignore laws designed to protect consumers. But debt experts say your chances of getting a collector to back off improve when you know your rights and assert them forcefully.
If you're contacted about a debt you don't owe:

Know your rights. The Privacy Rights Clearinghouse has prepared a fact sheet for consumers dealing with third-party debt collectors.

Get the name of the collector, its address and a telephone number. You can tell the collector on the phone to stop calling, but that won't preserve your rights under federal law.
Send a certified letter, return receipt requested. Make it clear the collector has contacted the wrong party, that you don't owe the debt and that you don't want to be called again.

Contact regulators. If the collector continues to call, seek help.

Typically, your state's attorney general's office handles complaints against collectors.

You can also complain to the Federal Trade Commission, which typically doesn't intervene in individual cases but may act if it sees a pattern of abuses.
Monitor your credit reports. If a collection agency posts a bogus debt on your credit report, dispute the item immediately with the credit bureaus. Include copies of the certified letter you sent the collector and any complaints you filed with regulators. Don't wait until you're about to apply for a loan to check your credit report; you'll want at least a few months' head start to dispute any errors.

[Sharing Lights]

When You Owe Money

Creditor's Formal Methods of Collecting Debts

IMPORTANT NOTICE

This information is not meant to be legal advice or to replace the advice you should receive from an attorney. There are times when it would be wise to consult a lawyer and other times when it is essential to do so. Always remember, each individual case is unique. This information applies to general consumer situations and should help you to avoid many problems before they happen.

Consumer or Debtor - the person who owes money to a creditor. Most frequently, the debt arises from a sale or from a loan.
Creditor - the person or entity to whom you owe money. A creditor may be the seller or it may be a bank or other financial institution which holds your contract.
Default means that you have not kept up on your payments as they have come due.
Exemptions - certain kinds and amounts of your property or money which the law says you can stop creditors from taking. Creditors cannot take exempt property.
Security Interest - certain rights in your property which you give to a creditor. This happens when you put the property up as collateral to get a loan or to get credit for a purchase. Sometimes the property you use for collateral is the item you are borrowing money to buy, and sometimes it is other possessions you already own. By giving a security interest in an item of property, you are giving the creditor the right to repossess it if you default.
Plaintiff - Person or company who sues.
Defendant - Person who is sued.
Complaint - Legal document that says who plaintiff is suing and what plaintiff wants from defendant.
Summons - Document that tells you to come to court or to file an answer to the complaint by a certain time.
Judgment - What the judge decides. If the judge decides you owe money, there will be a judgment against you.
Citation to Discover Assets - The legal document that tells the person who already has a judgment against them to come back to court and answer the creditor's questions about income and property.

SECTION CONTENTS
Content Updated: January 2006

Creditors' Formal Methods of Collecting Debts
Using Collection Agencies
Lawsuits in Court for Money
Methods to Collect on Court Judgments
Repossession of Vehicles or Other Goods
Wage Assignments
Other Remedies for Creditors to Recover Your Property

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Creditors' Formal Methods of Collecting Debts

Generally, a person who owes a debt cannot be put in jail for failing to pay it. No one goes to jail for owing a debt except in the rare circumstance where a court has directed payment and has found the person in contempt of court for clearly being able to pay but willfully disobeying a court order. However, there are different ways creditors legally can collect money from you when you do not pay a debt for a long period of time. They include:




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Using Collection Agencies

A collection agency is a company or an individual [it could be an attorney] who regularly collects debts of others. A creditor which tries to collect its own debt [such as a hospital or department store's own credit department] is not a collection agency. However, a hospital or any other creditor might hire a collection agency to collect a consumer's unpaid bill. The creditor usually allows the collection agency to keep as its fee a percentage of whatever the collection agency can get from the consumer. Since the collection agency's fee depends on how much it recovers for the creditor, it may be tempted to use harsh tactics with consumers to get them to pay a bill. [See the section in this booklet about Collection Agencies].








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Lawsuits in Court for Money

If you have not paid a debt, there is always the possibility you might get sued. The first notice you will have that you are being sued in court may be when you receive two legal documents called a Summons and a Complaint. The Complaint is a document prepared by the creditor [the plaintiff] that tells you why you are being sued and how much money the plaintiff claims you [the defendant] owe. The Summons will direct you to appear in court at a particular date and time or will tell you how many days you have to file a written appearance with the clerk's office. If the creditor wins in court, a court order known as a Judgment will be entered against you.




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Methods to Collect on Court Judgments

Once a creditor gets a Judgment against you, if you still do not pay, there are various methods which the creditor can use to enforce the judgment and get money from you. Those methods include:

a supplementary proceeding in court which starts by serving you or someone who owes you money with a document known as a Citation to Discover Assets;
a wage deduction proceeding, which is to force your employer to withhold part of your wages to pay off the debt;
a garnishment proceeding, which is to force the bank [or some other person or entity] which holds your account to turn over to the creditor money in the account;
a judgment lien or other enforcement against your real estate, which could result in a forced sale of your real estate or make it difficult for you to sell it later.







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Repossession of Vehicles or Other Goods

When you buy a car on credit, the contract you sign likely will give the creditor the right to repossess your car if you fail to keep up your payments. This right is called a security interest. Your failure to keep up on payments is called a default. Although this type of arrangement is not as common with types of goods other than vehicles, it is possible that your contract for purchase may give a creditor a security interest in the goods and the right to repossess if you default.












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Wage Assignments

Although these are no longer very common , some creditors may still require that consumers sign a paper called a wage assignment when they make a purchase. This paper gives the creditor the right, without having to bring a lawsuit, to request that your employer turn over a part of your wages if you fail to pay up on that purchase. You can stop a wage assignment very easily by sending the creditor a letter in which you say you are revoking the wage assignment. Keep a copy of the letter. Wage assignments are not to be confused with wage deductions, which are discussed later in this booklet.




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Other Remedies for Creditors to Recover Your Property

Instead of suing you for money, a creditor may decide to bring a lawsuit to directly recover an item or items of your property. Some of these remedies are known as replevin, attachment, and detinue. Creditors may also seek enforcement of statutory liens such as labor or storage liens or mechanic's liens. For more information about these matters, speak to a lawyer. If you cannot afford a lawyer, call Prairie State Legal Services.

[Sharing Lights]

What You Can Do if the Collection Agency Is Breaking the Law?

If you feel that you are being subjected to unfair or unlawful practices by a collection agency, you should consider doing one of the following things:

Write a Letter. You can stop all communications from a collection agency simply by writing them a letter telling them to stop contacting you. [You should keep a copy of the letter.] If a collection agency receives such a letter, they must stop all contacts with you, but the creditor then may use other methods to collect the debt. For example, the creditor may decide to sue you.
Write Everything Down. If you are receiving telephone calls from a debt collector, keep a record of each call, including the name of the person who called, the date, and the time of day they called. And make sure you write down everything that was said!
Save All Correspondence. Save any papers you receive from the debt collector, including letters [as well as the envelopes they came in], post-cards, telegrams, etc. These papers will be very important in proving violations of the law.

Sue the Collection Agency. A lawyer can force the collection agency to stop contacting you if they didn't do so at your request. Also, you may be able to sue the collection agency. The law allows you to recover damages for any emotional or other injury you actually suffered, plus statutory damages of up to $1,000. Statutory damages are an amount a judge can give you even if you cannot prove any actual injury because of the collection agency's conduct. If the collection agency's conduct is particularly outrageous, you may also be able to collect an amount of punitive damages [which a court might impose to punish them and stop them from doing such things again]. If you are going to sue for any violation of the law, you must do so within one year of the date of that violation.


Lawsuits in Court for Money

If a creditor decides to sue you on the debt, you will receive a Summons and a Complaint. The Complaint should state how much money the creditor wants the court to order you to pay. If you are being sued for less than $10,000, the lawsuit should be brought in small claims court. [You may wish to read Prairie State's pamphlet describing small claims court called What To Do When You Are Being Sued In Small Claims Court.] We tell you below whether it is likely or not that a creditor will go to the trouble of a lawsuit. If you are sued, this section tells you how to respond. Finally, we will explain the meaning and effect of a court judgment, in the event one is entered against you.




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Will a Creditor Sue on a Debt?

If a debt is not paid for any period of time, the consumer at some point is going to worry about whether or not the creditor is going to go to court. Only a small percentage of all debts wind up being collected through the court system. Still, it is a common sight in most courthouses in the United States to see creditors and their lawyers bringing lawsuits and using the judicial process to collect debts. So, how are you to know whether that is going to happen to you on any particular debt?

Generally speaking, creditors will not resort to a lawsuit if there is another easier or less expensive way to collect what you owe. The court process is slow and can be expensive. And, as we'll discuss later, even when a court judgment is entered against the consumer, there is no guarantee that the creditor will be able to collect any money on that judgment.

So although there is no hard and fast rule that creditors use in deciding whether to file suit, they are less likely to go to court when the amount of the debt is small, when the consumer disputes the debt or has a good defense; and when the creditor has no history of filing lawsuits. You might consider checking with your local court clerk who can help you determine if a given creditor has filed other lawsuits in that court.


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How to Respond to a Collector's Lawsuitin general?

Do Not Ignore the Summons. If you do get served with a Summons [and Complaint], the worst thing you can do is to do nothing. Ignoring it will not make it go away and can have serious consequences against you. If you are fortunate enough to have a lawyer to represent you, advise your lawyer immediately as soon as you receive the Summons. If you have no lawyer, then you must pay attention to what the Summons directs you to do.

If the lawsuit is for $50,000 or less, the Summons requires that you appear in court on a specified day. It is extremely important for you to make sure that you show up in court at the date and time scheduled for your appearance. If you don't show up in person or by attorney, the court will order a judgment in favor of the person or company suing you. If the lawsuit is for more than $50,000, the summons is in a different form and requires that you file a document called an appearance or an answer within 30 days after you are served.

How the Summons Must Be Delivered. The Summons and Complaint must be delivered to you [called being served] according to state procedure. It may be given to you personally by a deputy sheriff or by a process server. Also, it can be given to any member of your household who is over the age of 13. A small claims complaint and summons may be served by registered or certified mail.

Try to Work Out a Settlement Agreement if you can not afford standing up to the debt collector or hire an attorney.
If you have received a Summons and you know that you owe some money, you may contact the other party [or their attorney] and try to work out a settlement agreement. The plaintiff is often willing to take less than what he or she is suing you for in order to avoid a courtroom dispute. In addition, the creditor may be willing to set up a payment plan so you can pay off the debt over a period of time.

If you and the plaintiff reach an agreement that is satisfactory to both of you, you should put the agreement in writing and both you and the plaintiff [or the attorney] should sign it before it is presented to the judge. However, do not agree to a payment plan if you are not absolutely sure that you will be able to make all the payments, or if all your income and assets are exempt. [To find out if your income and assets are exempt, see Exemptions Which Prevent Creditors From Taking Your Money or Property in this booklet.] No matter what you agree to, be sure to be present in court at the date and time specified on the Summons, and when the agreement may be presented to the judge.

Contesting the Case. If you cannot work out an agreement or if you think you should not pay as much money as the plaintiff wants, then you must be prepared to show up in court and contest the case. In court, the judge will ask you whether you believe you owe the plaintiff the amount of money claimed as due. If you admit that you owe the money, a judgment will be entered against you.

If you tell the judge that you do not owe the plaintiff any money, or that you owe less than what is claimed, there will have to be a contested hearing called a trial. The judge may set another date for a trial. However, in some counties, particularly in small claims cases, the judge may hold the trial on the first appearance date. Check with the judge's clerk or the court clerk to find out whether you need to be prepared for trial on the first appearance date.

Defenses and Counterclaims.

A consumer can tell the court why the creditor should not be able to collect all or some of the money that is being sought. This can be done by presenting a defense or a counterclaim or both. A defense is either a set of facts or a legal reason why the plaintiff should not recover the amount being sought. A defense can defeat the creditor's action or tries to reduce the amount of money you need to pay. There are many different types of defenses which are possible in consumer cases.

A counterclaim is a claim by the consumer that the creditor owes money to the consumer because of something which the creditor did wrong. A counterclaim can be made whether or not the consumer owes the creditor any money on the debt. Counterclaims are used when creditors or debt collectors violate consumer protection laws.

It is very important for consumers to raise defenses and counterclaims in debt collection lawsuits. Creditors [or their attorneys] will be more inclined to either drop a case or settle on very favorable terms for you if your defense is going to eat up a lot of their time or substantially increase their costs.

[Sharing Lights]

How to Present Your Defenses or Counterclaims to the Court?

This will vary a lot depending on what court you are in. If you do not have an attorney to present your defenses and counterclaims, then you might consider checking with the court to see what its procedures are to do this. Some courts require a written statement called an Answer to be filed at the beginning of the case. The Answer states the consumer's defenses and counterclaims. Some small claims courts do not require you to file an Answer and allow you to raise your defenses and counterclaims in your statements at the trial. If you have any counterclaims, it is best to file them in writing with the Court Clerk's office early in the case and before the trial, so that at the trial the creditor cannot complain that he never received any notice of your claims. In this way, the judge can decide the claims of both parties at the same time.

Of course, a lawyer can best present your case for you
if you are too lazy to become a Sui Juris.

If you need a delay in the trial date to find an attorney, you should not hesitate to ask the court. Such a delay is called a continuance. If you cannot afford to pay a lawyer to handle the trial, you should at least try to consult a lawyer about how to present your case.

The key to any presentation is preparation. Always go to court prepared. This means you should have collected all papers relating to the case. In more formal courts, the consumer may need to bring someone who can identify the documents and prove they are authentic. Bring witnesses to court, if they are available. The court will not look at written statements of witnesses who aren't there, but will listen to them if they are there in person. Bring a written checklist of the facts you think are important [and a checklist of your documents, too]. At trial, you will tell a story through your words and your witnesses' words. Make sure the judge hears all the facts and sees all the documents. It is usually best to start at the beginning and tell your story in a clear and organized way in the order that it happened.





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The Judgment


In most lawsuits, the judge will sign an order deciding the rights of the parties. This order is called a judgment. A judgment can be agreed to by the consumer and the creditor, or it can be what the judge decides after a contested trial, or after a default.

A default happens when you ignore the summons and fail to show up in court. You lose the case automatically! If for some reason you fail to show up in court at the specified date and time, it may not be too late to change the default judgment against you. You should immediately consult an attorney to see if the default judgment can be vacated.

If the judgment favors the creditor, it will say how much money the consumer has to pay the creditor. Once a judgment for money is entered in favor of a creditor, you do not have to pay the money immediately. However, the entry of a judgment does give the creditor certain legal rights to force payment. [See Creditors' Methods to Collect Court Judgments.]

On the other hand, a certain amount of a consumer's income and property is protected by state and federal laws. Protected income and assets cannot be taken by a creditor. Protected income and property are called exemptions. You should read very carefully the section about Creditors' Methods to Collect Court Judgments and the part about Exemptions Which Prevent Creditors from Taking Your Money or Property. These sections will tell you what income and property is protected and how to make sure they stay protected. A consumer is said to be judgment proof when all of his or her income and assets are exempt. That means they cannot be taken by creditors. If a consumer is judgment proof, he or she does not have to worry about the judgment until his or her financial condition improves. A judgment proof consumer may well decide to wait to pay off the judgment in order to save the small amount of income they receive to pay necessary bills and expenses.





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How to Appeal

Any party to a lawsuit in the state courts has the right to appeal a final judgment to a higher court called the appellate court. An appeal must be started by the filing of a Notice of Appeal in a specified form within 30 days after the date of entry of the final judgment. If you lose your appeal in the appellate court, you may ask the Supreme Court to hear your appeal. To get the Supreme Court to hear an appeal from an appellate court, a party must file a Petition For Leave To Appeal, and the Supreme Court will then decide whether it wants to hear the appeal. If you are considering an appeal, see a lawyer.

[Sharing Lights]

Creditors' Methods to Collect Court Judgments

A judgment in favor of a creditor is an order saying the consumer owes a specified amount of money to the creditor. The creditor will not be happy with just getting a judgment unless the consumer pays the debt. If the consumer does not pay the debt, the creditor can use a number of special legal tools to force the consumer to pay. These legal tools are discussed below. The main thing to keep in mind about all of them is that they cannot be used unless the creditor first obtains a judgment. Another thing to think about is that you can prevent the creditor from taking any of these steps if you file for bankruptcy.




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Citation to Discover Assets [on the Debtor]

After obtaining a judgment, the creditor can ask the court to direct the consumer to appear back in court for an additional [supplementary] proceeding. The purpose of this new hearing is to let the creditor ask questions of the debtor about his or her income and assets. In this way, the creditor can find out about your employer, your salary and your wages. The creditor can also find out where your bank accounts are located and what other income or property you have or will be getting.

With this information, the creditor can start proceedings to garnish your wages or bank account [information follows about Wage Deductions and Non-Wage Garnishment]. Or, the creditor can ask the judge to enter a turn-over order, which tells the consumer to turn over to the creditor some of his or her income or property. Remember though, that some income and property is exempt. If non-exempt assets other than cash or real estate are discovered, they can be ordered turned over to the Sheriff to conduct a public sale, the proceeds going to the creditor to pay off the judgment.

In Illinois, for example, the document which directs the consumer to come back to court to answer the creditor's questions is called a Citation To Discover Assets. There are rules about how the Citation is given to you. Also, it must include a special notice. Among other things, this notice must advise you about your exemption rights and how to assert them. This notice to you must be in a particular form. By law, no turn-over order can be entered unless there is proof in the court record that the consumer properly received the Citation and a copy of the special notice about exemption rights. The Citation might direct the consumer to bring certain documents to court.

There are four important things to remember about a Citation to Discover Assets:

This is a court-ordered appearance. Failure to show-up and answer the questions can result in arrest, a finding of contempt of court against the consumer, and a jail sentence. A Citation to Discover Assets should never be ignored! If you are jailed for failure to appear, you may be ordered to pay a large bond in order to be released. This money may then be applied to your debt, even if the bond money came from exempt income or property.
The consumer is under oath when answering questions. You have to be truthful when answering questions about your income and assets. Lying under oath is perjury.
Turn-over orders should not affect exempt income or property. Any court order entered at the supplementary proceeding should turn-over only those assets or income which are not protected by law. You should know your exemption rights and should tell the judge what property of yours is exempt, to make sure that exempt income or property is not included in any turn-over order. [See Exemptions Which Prevent Creditors From Taking Your Money or Property.] At any citation hearing you can ask the judge to declare whether certain income or assets are exempt.
Be careful about agreeing to a court-ordered payment plan. The creditor or his attorney may try to get the consumer to agree to a payment or installment plan, and may try to have that agreement formalized by court order. A consumer should be very careful about making such an agreement, and should not do so unless absolutely certain that he or she can keep up with the payments. If you fail to make good on a court-ordered payment plan which you agreed to, you may possibly be held in contempt of court and jailed.



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Citation to Discover Assets [on Third Parties]

Citations to Discover Assets can also be served on other persons or institutions who may be holding some of your assets. For example, this might be a bank where you have an account or an insurance company which owes you on a claim. Any third party served with a Citation also must come in for an examination and be subject to a turn-over order.

If the creditor serves a Citation on any third party, you [the consumer] must be given a special notice that tells you when to come to court for this proceeding, tells you your exemption rights, and tells you how to assert your exemption rights at the hearing. [See Exemptions Which Prevent Creditors from Taking Your Money or Property.] No turn-over order can be entered directing a third party to turn over your assets unless there is proof in the court record that you were properly served with the Citation and with a copy of the special notice about your exemption rights.

When a third party receives the Citation, it must freeze all assets which are not exempt under the law. The third party should not send any money to the creditor until it receives a court order or turn-over order to do so.

You should go to court to assert your exemption rights whenever a third party has frozen exempt assets or there is a possibility that exempt assets might get turned over at a citation hearing.

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Wage Deductions

If you fail to pay a judgment, a creditor can use a wage deduction proceeding to try to get your employer to deduct a certain percentage of your wages from your paycheck and to have that amount sent to the creditor. Wage deduction is sometimes referred to as a wage garnishment.

The Wage Deduction Procedure: A wage deduction procedure cannot start before the creditor gets a court judgment. Then a creditor can file a document with the Clerk of the Circuit Court called a Wage Deduction Affidavit. This is a signed statement in which the creditor states his or her belief that your employer owes you wages. In that affidavit, the creditor must certify that, before filing the affidavit, he mailed a wage deduction notice [explained below] to you at your last known address. That address must also be stated in the affidavit.

At the same time the affidavit is filed, the creditor also sends a set of written questions [called interrogatories] to your employer and files them with the court. These questions help the creditor determine how much wages the employer owes you over a period of time, and to figure out how much of your non-exempt wages can be deducted. The employer must answer these interrogatories, file them with the court, and mail or deliver a copy of its answers to the creditor and to you.

When the court clerk receives the affidavit and interrogatories from the creditor, the clerk issues a summons to the employer. The summons gives the employer an amount of time to file its answer to the interrogatories and tells him or her the date the matter will be heard in court.

The employer is required to pay the consumer the amount of his or her exempt wages. However, the employer must hold, subject to orders from the court, the amount of non-exempt wages due or which may later come due during the period of the wage deduction [12 weeks]. [See following topic How Much Money Can Be Taken From Your Wages.] The employer cannot withhold more than the amount due on the judgment.

On the court date [stated on the summons], which takes place after the 12 week period, the court will decide whether the employer should turn the money being held over to the creditor. The law says this should not be done unless the Wage Deduction Affidavit certifies that a copy of the Wage Deduction Notice [see next topic] has been mailed to the consumer and the employer's answer to the interrogatories provides a summary of the computation used to determine the amount of non-exempt wages.

The Wage Deduction Notice: The notice which is mailed to you must be in a particular form. Among other things, the notice must identify the court case and inform you that the creditor has started a proceeding in court to force your employer to deduct your wages. The notice will tell you the date and time the matter is to be heard in court. The notice must also tell you that the amount of wages that may be deducted is limited by federal and Illinois law. It explains the mathematical formula for determining the amount of wages that lawfully can be deducted and the amount of your wages that are protected [exempt]. The notice tells you that you have the right to request a hearing to dispute the wage deduction because your wages are exempt, and tells you how to obtain that hearing .

How Much Money Can Be Taken From Your Wages? When the employer receives the summons, only part of your wages can be deducted and withheld from you. The employer cannot deduct from any of your weekly take-home pay [after taxes and Social Security are deducted] any amount that is up to 45 times the state minimum wage. As of January 1, 2006, the state minimum wage is $6.50 per hour. This means that, until the minimum wage is raised again, you are always entitled to take home at least $292.50 of your wages per week. If your take-home pay is this amount or less, no wages may be deducted at all. If your take-home pay is more than this amount, the employer can deduct the smaller of the following two amounts: [1] 15% of your weekly gross wages, or [2] the amount of your take-home pay over and above $292.50. In addition, the employer may withhold an additional small amount as a fee for their services in responding to the wage deduction process.



What You Should Do If Your Employer Is Deducting Wages: Determine how much money your employer is deducting from your paycheck. Figure out if they are taking more than they are allowed to take. If so, inform your employer and insist they take out only the lawful amount. When you get a copy of the employer's answers to the interrogatories, look to see how much non-exempt wages the employer says it has withheld. If the employer continues to withhold too much from your check, follow the instructions on the Wage Deduction Notice that tells you how to request a hearing to ask the court to declare the proper amount of your wages exempt.

Your Employer Cannot Fire or Suspend You: No employer may discharge or suspend any employee because his or her earnings have been the subject of a wage deduction proceeding. This protection for the consumer is only for a single debt. If an employer has to deal with a wage deduction from a second creditor on a different debt, then this protection is no longer available.






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Non-Wage Garnishment

Not only can a creditor garnish [take] wages, but also can garnish money owed to or belonging to the consumer that is in the hands of others. Most often, a non-wage type of garnishment takes money from a consumer's bank account, although it can also be taken from an insurance company or anyone else who owes money to the consumer.

The Garnishment Procedure: The procedure for a non-wage garnishment is very similar to the wage deduction process. It cannot start before the creditor obtains a court judgment. Afterwards, the creditor files an affidavit with the Clerk of the Circuit Court in which the creditor states his belief that your bank [or some other person] has your property in their control or otherwise owes money to you. The bank or other person is known as the garnishee. The creditor also files a copy of a Garnishment Notice which must be mailed to you, the consumer. The creditor must also file a set of written questions [called interrogatories] to be answered by the garnishee. The interrogatories help the creditor determine how much non-exempt money or property is being held by the garnishee. The bank or other garnishee must answer these interrogatories, file them with the court, and mail or deliver a copy of its answers to the creditor and to you.

When the court clerk receives the affidavit, the Garnishment Notice and the interrogatories from the creditor, the clerk issues a garnishment summons. The summons tells the garnishee [for example, the bank] the time it has to file its answer to the interrogatories and the date the matter will be heard in court. The garnishee is required to hold, subject to orders from the court, the amount of non-exempt money or property it is holding, up to the amount due on the judgment.

On the court date stated on the summons [which is between 21 and 30 days after the summons is issued], the judge will decide whether the garnishee should turn the money being held over to the creditor. The law says that no deduction order can be entered unless the court record shows that a copy of the garnishment summons and the Garnishment Notice were mailed to you by first class mail, within 2 business days of service of summons on the bank or other garnishee.

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The Garnishment Notice: The notice which is mailed to you must be in a particular form. The notice must identify the court case and inform you that the creditor has started a proceeding in court to force your bank or other garnishee to turn over monies in your account to pay off the judgment. The notice will tell you the date and time the matter is to be heard in court. The notice must also tell you that the amount of money or property [other than wages] that may be garnished is limited by federal and Illinois law. It must explain what amount of money or property is protected from garnishment [called exemptions]. [See the part of this booklet on Exemptions Which Prevent Creditors From Taking Your Money or Property.] The notice also tells you that you have the right to request a hearing to dispute the garnishment or to ask the court to declare certain of your money or property exempt. Finally, the notice tells you how to obtain that hearing.

How Much Money Can Be Garnished From Your Bank Account? When the bank or other garnishee receives the summons, they are required to freeze any non-exempt funds in your account, up to the amount of the judgment. A freeze means that you cannot withdraw that money nor can it be used to pay any checks you write. Be careful that you do not bounce checks in this situation! The court can later order that frozen funds be turned over to the creditor. [You can prevent this from happening by withdrawing the funds before the bank is served with the summons.] In addition, many banks receiving a garnishment summons will charge the account holder a small fee for its services in processing the garnishment.

What You Should Do If Your Bank [or Other Garnishee] Has Frozen Your Account?


Remember, the bank is permitted to freeze only non-exempt funds. However, the bank may not know what amount of your funds are exempt. If the bank does freeze your account [or part of it], then you should inform the bank and the creditor if any of the money it has frozen is exempt. For example, every consumer has a "wild card" exemption of $4,000 in any property of his choice. You can choose to have up to $4,000 in the frozen account declared exempt under this "wild card" exemption. In addition, most forms of government benefits, including Public Aid and Social Security, are exempt. If your account consists entirely of these exempt government funds, then the entire account is exempt. If the bank refuses to release exempt funds, you may have to go to court to exercise this exemption. The Garnishment Notice tells you how to obtain a hearing to get the court to declare the funds in your account exempt.








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Judgment Liens and Enforcement of Judgments Against Real Estate

A judgment can become a lien on real estate that is owned by the person the judgment is against. A judgment lien is a claim, like a security interest, belonging to the judgment creditor and giving the creditor the right, under certain circumstances, to have the property sold in order to pay your debt. In order to get this lien, the creditor must file certain documents in the county recorder's office. Creditors with a judgment lien can force the sale of the property that the lien is on. Even without filing for the lien, however, a judgment creditor can still ask the judge to have the property sold by the Sheriff so the creditor can collect his or her judgment.

Luckily for the consumer, however, there is something called a homestead exemption which makes it very difficult to sell the home of the person who owes money. Also, if the real estate is sold, there are certain things the consumer can do to get the property back.

The Effect of the Lien: A judgment creditor with a lien may be able to force a sale of your property to pay off your debt. Even if the creditor cannot force a sale, because the real estate is exempt or for other reasons, state law permits the lien to remain in effect for 7 years from the time it is entered or revived [an old judgment can be extended or revived]. For that period of time, the lien will "cloud the title" of your real estate because, if you want to sell the real estate, the judgment will have to be paid first.

The Homestead Exemption: In Illinois, an individual who occupies the real estate as a residence is entitled to a homestead exemption. The home cannot be sold to satisfy the lien if the amount of your equity interest in the home is less than the exemption amount. Back

The exemption is $15,000 for a single person, and $30,000 for a married couple who both own the residence. This must be compared to the debtor's equity interest in the property. A debtor's equity interest in real estate is figured by subtracting amounts owed on a mortgage [or other lien on the house] from the present value of the property. If the equity interest is less than the exemption, there cannot be a forced sale of the house to satisfy the lien.

For example, if a home is worth $85,000, but the sum of $75,000 is owed on the mortgage, the debtor's equity interest is $10,000. If the debtor is married, and both spouses own and live in the residence, they have a $30,000 exemption. Since the debtor's equity interest in the real estate is less than the exemption, the home cannot be sold to pay their debt.

However, if the amount of the equity interest is greater than the exemption amount, then the home might possibly be sold. If there is a forced sale, before the creditor could realize any money from the proceeds, the mortgage holder would have to be paid and the debtor would receive the amount of the homestead exemption. This means the creditor actually has to pay $15,000 [or $30,000] in cash to a debtor who has avoided payment of the judgment. Many creditors don't like the idea of paying the person who owes them money, so they may not want to force a sale.

There are other reasons why a creditor might not want to try to force a sale. The laws on homestead make it difficult to sell the residence of the judgment debtor. The creditor will have additional costs he must incur such as advertising costs, a lien search, appraisal of the property, a title report, recording charges, publication expenses, and the Sheriff's commission for conducting the sale.

It does not make sense for the creditor to force a sale of your home if the fair market value of the real estate is not substantially greater than the creditor's costs. Those costs include all of the above costs, together with the payment of the homestead exemption and all prior mortgages and liens. In addition, the complications arising from the homestead exemption and redemption rights will make this type of sale not very appealing to potential bidders.

For these reasons, creditors don't usually force sales of real estate.

Notice and Sale: The law requires that many things be done in trying to be sure that the debtor knows that the sale of his or her house will occur. The Sheriff must publish notice of the sale once a week for 3 successive weeks in a newspaper in the county where the property is located. A notice is also posted in 3 public places within the county, usually within the Sheriff's office and the courthouse. The notice must reflect the date, place and time of sale and identify both the creditor and the debtor. After the sale and payment of all costs and expenses, the Sheriff will deliver a Certificate of Sale to the purchaser.

Redemption Rights: In most cases, even where the creditor has forced a sale of the real estate, the debtor has the right to redeem the property. Redeem means to buy back. This can be done within 6 months from the date of sale by paying the purchaser the amount of money for which the premises were sold, plus interest at 10% annually from the time of the sale.

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Exemptions Which Prevent Creditors From Taking Your Money or Property
In Illinois, the law protects some of your income and property from collection by creditors. No one can force you to pay debts from money or property which is exempt. The idea behind the exemption laws is to allow consumers to keep the basic necessities of life. This section will tell you which money and property can't be taken by creditors. These exemptions give consumers very important rights, particularly after a court judgment where the creditor seeks an order to seize a consumer's property. A creditor cannot make you give up your exemption rights, such as by putting some small print in a contract. Such clauses are illegal under federal law.

But exemption laws do not protect you when a creditor wants to repossess an item of your property in which the creditor has a security interest, often known as collateral. For example, if the consumer puts up a car as collateral on a loan, the creditor can take the car if the consumer gets behind in payments, even if the car is an exempt asset. [For more information about this, see Prairie State Legal Services' pamphlet on Repossession.]




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What Are Your Exemption Rights?

Some of your exemption rights have already been discussed in this booklet. The amount of your wages which are exempt are discussed in the section above on Wage Deductions. The value of your homestead exemption is discussed in the earlier section of this booklet called Judgment Liens and Enforcement of the Judgment Against Real Estate. This section will focus on your rights to exemption of personal property other than wages. When we say exemption, we are referring to property which the law says you can stop creditors from taking. As a consumer, your following personal property is exempt from collection or attachment:

Your or your family's clothing, Bible, school books and family pictures.
Up to $4,000 in value of any other property of your choice. This informally is known as the WILD CARD exemption because you can identify one or more items of property for which you want the exemption applied. For example, if a creditor tries to garnish your bank account which has $500 in it, you can claim the entire account as coming within your wild card exemption. That means you are left with another $3,500 to exempt other personal property. Also, only your equity interest in the property is counted towards the $4,000 limit. Let's say you want to apply the wildcard exemption to one of your cars that's worth $5,000. If you still owe the bank $4,000 on the car, your equity interest is only $1,000. Since your equity interest is less than the amount of the wildcard exemption, you can use the wild card to totally exempt your car. You can use the $4,000 wildcard to add exemption value to other exemptions shown below.
Your interest in any one motor vehicle, up to $2,400. Let's say you want to use your exemption rights to protect your car from being taken by a judgment creditor, but your equity interest in the car is $3,000. You can claim up to $2,400 of it under this exemption. Is the car totally exempt? Yes, if the $600 difference is claimed as an exemption under your wild card.
Any implements, professional books or tools of your trade, up to $1,500 in value. Again, only your equity interest in this property is counted towards the $1,500 limit.
Your right to receive certain types of government benefits or assistance. This exemption covers government benefits such as Social Security, unemployment compensation, public aid, veteran's benefits, and other forms of public assistance. Your right to receive circuit breaker property tax relief benefits is also exempt.
Any disability, illness or unemployment benefit from an employer, an insurance company or any other source, including workmen's compensation benefits.
Your right to receive alimony, maintenance or support payments. This includes payments for your support or the support of any dependent.
Your right and interest in a