The National Creditors Bar Association Responds to ACLU’s Report: “The Criminalization of Private Debt”

SARASOTA, Fla. -- The National Creditors Bar Association (NCBA) takes exception with last month’s American Civil Liberties Union (ACLU) report which proclaimed that thousands of individuals were being arrested and jailed for the debts they owe. The ACLU’s report was not only factually inaccurate but was conveniently lacking in relevant truisms in an attempt to sensationalize unfortunate circumstances for individuals who fail to comply with court orders. The ACLU’s lack of understanding of the legal debt collection process including its failure to acknowledge federal and state laws which govern debt collection activity, court rules of procedure and the regulations imposed both at the state and federal level result in a report that lacked fundamental credibility, but more importantly, hampers the ability of legitimate debt collectors to communicate with consumers to fairly and efficiently resolve their financial obligations. 

The fact remains, debtors’ prisons do not exist. There is not one consumer in this country that was put in jail for the failure to pay a debt. Our court system simply does not work that way. The Fair Debt Collections Practices Act (“FDCPA” or the “Act”) mandates how a debt collector must communicate with a consumer and as well as enumerates specific prohibited conduct by debt collectors in its attempt to collect a debt on behalf of the creditor.  

At the beginning of the debt collection process a statutorily mandated letter is sent to the consumer advising of the debt and their right to dispute it. If the consumer fails to communicate with the debt collector, the debt collector may make further attempts to contact the consumer either by making telephone calls or sending additional letters. If the consumer still fails to communicate with the debt collector, the creditor may decide to pursue the matter legally and a civil lawsuit could be filed against the consumer. State law as well as the United States Constitution requires that a defendant to any lawsuit must be properly served and put on notice of the claims asserted against it.  A consumer then has the opportunity to file papers in court and/or appear at a hearing. If the consumer fails to appear or fails to file an opposition, a judgment can be entered against the consumer. If a consumer fails to pay the judgment, a judgment creditor has a right in certain states to obtain an order requiring that a consumer appear in court or answer papers to disclose any assets that could satisfy the judgment.  The failure of a consumer to comply with a court order is called contempt of court. When this occurs only a judge, not a debt collector, can order an arrest warrant be issued until the consumer complies with the court’s order. The result is the same regardless of whether the civil case involves a debt or the failure to supply discovery in some other civil claim. Judges expect that any person who comes before them to comply with their orders and the failure to do so can result in significant consequences – including but not limited to the issuance of an arrest warrant.

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