Tuesday, October 13, 2009

Debt Collection Job Search Orders: A Survey of Jurisdictions

The Marianas Office of Micronesian Legal Services conducted a survey to see if orders to find work in ordinary debt cases (especially consumer debt cases) exist outside of the CNMI.

We sent an e-mail in July and August, 2009 to 163 Legal Services Corporation (LSC) providers nationwide and in Micronesia with a simple poll. LSC's 2008 annual report, indicates that LSC providers nationwide handled 85,605 debt collection and debt relief cases, which accounted for approximately 9.6% of all 2008 LSC cases. Responses from these organizations would be helpful in assessing the existence of job search orders in consumer cases.

Here is the questionnaire we used:
Micronesian Legal Services Corporation (MLSC) is conducting a brief and informal survey of LSC offices and their experience, if any, with court orders to seek employment for the enforcement of judgments on consumer debts. This effort is in response to a recent Commonwealth of the Northern Mariana Islands (CNMI, USA) Supreme Court decision legitimating such orders (2009 MP 7).
MLSC is seeking your assistance in forwarding this e-mail to local LSC service providers and staff in order to answer the following three questions:
1. Has your office handled cases involving orders to seek employment to satisfy a consumer debt? If so, in what context? For example, is it in a bankruptcy case?

2. If no, why not? For example, is there a constitutional prohibition? Any case law? Or is it because creditors find it cost prohibitive to collect from judgment proof debtors?

3. If yes, please describe. Is it pursuant to statute? How frequently are these orders to seek employment issued? Do they tend to be successful for creditors? Can you forward a copy of a sample order?

Below is a summary of the responses we received.

All LSC providers who have responded say they have no experience with orders to find work pursuant to their judgment enforcement statutes to satisfy a consumer debt. Only 2 jurisdictions have seen such orders in contempt proceedings.

• To date (October 15, 2009), a total of 51 responses have been received from 37 jurisdictions as follows:

33 states: Alaska, Arkansas, Arizona, California, Connecticut, Florida, Georgia, Hawaii, Iowa, Indiana, Illinois, Kansas, Kentucky, Massachusetts, Maryland, Michigan, Minnesota, Missouri, Mississippi, Nebraska, New York, North Dakota, New Jersey, New Mexico, Nevada, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia.

1 U.S. territory: Guam.

3 Micronesian political entities: Palau, Kosrae, Yap.

• 15 LSC providers commented on how their jurisdiction does not provide for such authority. 7 out of those 15 providers commented that their state law only allows for either a garnishment or attachment.
• 11 LSC providers commented that orders to find work are found in domestic support enforcement proceedings.
• 8 LSC providers commented on how orders to find work would not pass constitutional muster.

(From Ohio:

"Both the United States and the State of Ohio have constitutional prohibitions against involuntary servitude, which is basically what you are describing. Ohio law prescribes the rights and remedies of creditors. Creditors are limited to garnishing wages or bank accounts, or seizing property or other assets in their efforts to collect debts.")

• According to 2 LSC providers in Illinois, orders to find work are rare since the decision Business Service Bureau v. Martin, 715 N.E. 2d 764, 767 (Ill. App. Ct. 1999) was rendered. Occasionally, they see these from vindictive judges in contempt proceedings, where a judgment debtor fails to pay after becoming unemployed.

Guam Legal Services commented that it has only observed small claims courts using their contempt authority to require judgment debtors to seek employment, but the success of these actions, in all practicality, has been contingent on the debtor’s willingness to become employed.

• South Carolina Legal Services commented that it is one of only a few states that prohibits wage garnishment.

Conclusions: It appears from this empirical data that in fact, the opinion of Professor Vern Countryman, given in testimony before the House Judiciary Committee in 1975, is indeed true.
Compulsory wage earner plans would be inconsistent with the policy and traditions of a country which has abolished involuntary servitude by the Thirteenth Amendment to its Federal Constitution, has abolished peonage, or debt slavery by federal statute...and has abolished all but a few vestiges of imprisonment for debt by state constitutions and statutes.

Bankruptcy Act Revision: Hearings on H.R. 31 and H.R. 32 before the Subcomm. on Civil And Constitutional Rights of the H. Comm. on the Judiciary, 94th Cong. 347 (1975).

The only two jurisdictions (besides the CNMI) that seem to have ventured into job search orders in consumer debt cases are Illinois and Guam; and both have issued written court decisions determining that such practices are not authorized by law. See, Business Service Bureau, Inc. vs. Martin, supra, and Zurich Insurance (Guam,)Inc., v. Santos, 2007 Guam 23, 2007 Guam LEXIS 21.

I will keep these results updated. No responses have been received since 9/12/09.

Friday, October 9, 2009

Orders to Seek Employment

Our office is challenging a commonly-used debt collection practice in the CNMI. Here, a creditor with a court judgment routinely has the court issue an order requiring an unemployed debtor to find work and periodically produce 10 job applications as proof. Our Supreme Court seems to say that it’s okay. See Bank of Guam v. Ruben, 2008 MP 22, reh’g den., 2009 MP 7.

However, there has been plenty of case law, academic discussion and federal legislative history that uniformly frown upon forcing debtors to work. Although the issue has only come up in the context of bankruptcy, the disfavor is one in the same. Coercing a debtor to toil for the benefit of creditors is a form of involuntary servitude which is prohibited by the 13th Amendment.

In fact, you would be hard-pressed to find job search orders outside the CNMI. We recently conducted a survey of other legal services providers nationwide and throughout Micronesia to see if their jurisdictions entertain such orders. To date, we’ve received 51 responses from 37 jurisdictions. None of the LSC providers have had to deal with orders to find work to pay back consumer debts. Illinois and Guam have seen them on rare occasion, and only in circumstances when a debtor had been in contempt of court. Interestingly, though, Guam's Supreme Court in 2007 held that job search orders are not authorized there (outside of child support cases), and it cited an Illinois case for the same proposition. See Zurich Insurance, Inc. v. Santos, 2007 Guam 23. (My next post will publish the current results of the survey.)

Why do these coercive orders still exist in the CNMI? I'm not sure. They are not expressly authorized by our statutes. Once a judgment is entered, a supplemental hearing may be initiated to determine if there are any assets or income beyond what is needed to cover the reasonable living requirements for debtors and their dependents. If so, they can be forfeited to the creditor. If not, then the inquiry ends. Judgment recovery practices elsewhere are in essence no different. Creditors for the most part are allowed to garnish earnings or attach assets. Debtors are allowed to claim exemptions for basic necessities calculated according to various formulas.

Creditors in the CNMI are given an extraordinary additional tool. They can force debtors to find jobs.

Has this type of coercion existed before? Yes. Compulsory employment to satisfy a debt is a vestige of a bygone era when debtor prisons existed. However, President Jackson outlawed them in 1883 and states eventually followed suit.

The 14th Amendment’s protection of our liberty interests should also be kept in mind. Our evolving modern sensibilities recognize a free and open market for labor and preserve the value of choice in deciding our own livelihood.

Of course, there are no absolute freedoms. There are a multitude of considerations – like family responsibilities or an economic downturn - that force us into one line of work over another. But those pressures are different from legal coercion.

There is one exception: when a parent needs to pay child support. Domestic obligations are given special consideration over consumer debt. The government should be able to step in more aggressively to protect a child’s rights. There is case law on this, and the Bankruptcy Code also reflects this value.

There is no reason why creditors in the CNMI should be given preferences. I’m not aware of any cultural, social or economic relativity argument that would justify ignoring the constitutional prohibition against involuntary servitude. Even from a utilitarian perspective, federal legislative history on bankruptcy points to the futility and impracticality of compelling work to pay back creditors.

An equilibrium between creditor and debtor, lender and borrower, business and consumer, needs to be re-established in order to safeguard 13th and 14th Amendment protections that the low-income stratum of society deserve as much here as anywhere else in the U.S.

(For a more general discussion on debtor rights in the CNMI, see our blog post here.)