by David Grossack
It is not unusual for people to ignore court proceedings, especially small claims cases. There is a prevalent feeling that a small claims court has little power and that a decision from a small claims court has little, if any, teeth behind it.
Because many of the people who use the small claims court are non-lawyers who don’t have much familiarity with how things work in enforcing judgments, it is easy to see how this misunderstanding arose.
But when lawyers (or sophisticated users) of the small claims system seriously aim to recover their debt, they have options that can make a debtor very uncomfortable.
Let’s assume you are used by a debt buyer or credit card issuer in small claims court, and you don’t show up.
A judgment is issued against you quite automatically.
That judgment gives the company that sued you (the plaintiff) to request an Execution, a document giving a sheriff or constable the authority to seize your car or even auction off your home.
That document can also be used in many states to attach most of your paycheck.
While there are occasional protections (such as homestead or if you were canny enough to place your home in a trust) to foil these claims, it’s not always simple and bulletproof.
Let’s say the plaintiff can find no assets to seize or paycheck to attach.
Then, the plaintiff can bring what is called in Massachusetts “supplementary process,” or an action on the judgment. In some states, is called a “poor debtor examination.” In any event, you will get a summons to appear to explain why you haven’t paid the judgment.
Blowing off this summons is a bit risky. Not appearing is considered a contempt of court.
When you fail to appear, a document called a “capias” is awarded to the plaintiff.
The plaintiff can bring the capias (which is, essentially, an arrest warrant) to a constable and have you placed in jail.
Then, the judge has discretion to decide to let you out after payment of all or part of the debt. This is a position in which you definitely do not want to be.
Therefore, it is wise to learn how to avoid it by confronting the case as soon as you first learn about it.
Every credit card case can be whittled down to a fraction, if you know how to play the game. The game is to make the case such a nuisance for the credit card company, (or debt buyer’s lawyer) that they want to get rid of it, and will let you out cheap.
There are a dozen strategies and methods to use in challenging credit card debt. The interest rate is unconscionable. Many debt buyers cannot prove their case. And there’s more. File an answer and learn the procedural rules by asking the court clerk for them as soon as you get notice that you have been sued. Then, try to switch the case into a civil action where ordinary court rules apply, so you can demand documents in your opponents’ possession and insist on a jury trial. But that is another set of lessons.
By all means, read my book, “The Plasticators’ Workbook,” which is available at citizensjustice.com. It tells you my strategies for dealing with credit card companies.