SPRINGFIELD -- Robin Ebersohl left her job at a Wal-Mart in Montgomery County to drive back to her home in Livingston.

SPRINGFIELD -- Robin Ebersohl left her job at a Wal-Mart in Montgomery County to drive back to her home in Livingston.


During the trip, she was stopped by police.


“I knew my muffler was bad, but I just kind of chanced it,” Ebersohl said.  “He pulled me over, and I thought I would just get a fix-it ticket or something.”


What Ebersohl didn’t know was that a warrant had been issued against her in Macoupin County for failure to appear in court on a debt collection issue.


“I didn’t know what I was supposed to appear to,” said Ebersohl, who said she never got a notice that she was due in court.


Instead of going home that day, she was taken to jail.  Ebersohl said she spent the night in the Montgomery County Jail and then was transferred to Macoupin County, where she spent three more days in jail.


“Until the first of November, when my dad got his pension check,” she said, when she was bailed out.


Ebersohl’s case occurred in 2007, but state officials said they are hearing more often about people with outstanding debts being sent to jail.


Debtors’ prisons outlawed


“In Illinois, in the Constitution, it says you cannot be jailed, put in prison, because you don’t have an ability to pay your debt,” said Attorney General Lisa Madigan.  “We outlawed debtors’ prisons in the 1800s.”


The problem is, said Madigan and Brent Adams, director of the Illinois Department of Financial and Professional Regulation, people aren’t being jailed because of their debts themselves.


“The protections against debtors’ prison have a loophole,” Adams said.  “That loophole is you can be sued on a debt, even if you have no conceivable way of paying it back, and if you fail to comply with each and every court order in conjunction with that case, you run the risk of being arrested and thrown into jail.”


“When you fail to show up for a court hearing, that’s when a judge finds you in contempt of court for not showing up and there is a warrant out for your arrest,” Madigan said.  “That gives the lawyers the ability to say (debtors) aren’t being thrown into debtors’ prison, they’re being thrown into prison for contempt of court.  To me, that’s disingenuous.”


Madigan and DFPR are working on legislation for the upcoming session of the General Assembly to address the issue.


Ebersohl knew she owed medical bills. She’s been diagnosed with cancer and diabetes and lost her job driving trucks in 2002 because of her health problems.


“It was between 2002 and 2005 when all the doctor bills got high,” she said.


A collection agency took over the debt and took her to court every three to six months to check on her income, Ebersohl said.


“It’s called ‘pay or show’ motions,” Madigan said.  “Either you pay (the debt) off or you show up in court once a month.”


 


Number of cases unclear


Ebersohl finally went to Land of Lincoln Legal Assistance Foundation for help.


“My lawyer is handling it now,” she said.


How many similar cases have taken place in Illinois is difficult to determine.  DFPR is attempting to compile statistics, but the information isn’t uniformly catalogued in all counties, Adams said.


Sandi Gordon, senior staff attorney for Land of Lincoln Legal Services based in Carbondale, said she’s seen “at least 20 (cases) in the last two years that stick out in my mind.”


“It probably happens a lot more often.  I’m just saying these are the ones that reach me,” Gordon said.  “The economy is making it far, far more common.”


Debtor cases appear to be happening far more often in downstate counties than in the northern part of the state.


“I have not heard of it in Chicago and Cook County, but that’s not to say it doesn’t happen up there,” Madigan said.  “The legal aid folks don’t see it as much up here.”


The types of debt involved run the gamut.  Gordon said a lot of the cases she deals with involve medical debts.  But they can also involve loans, credit card debts, overdue rent and even, in one case, failure to make payment on a vacuum cleaner.


Gordon said she handled the case of a man who underwent cancer surgery and then was jailed for five days because of a $300 debt.  In another case, she said, a woman “spent a few weeks in jail” after failing to make a court appearance.


“She never got the notice,” Gordon said.  “It was the jailer who contacted me.  He said there is something wrong here.”


Moreover, Gordon said, the woman received public assistance, which is one of the forms of income exempt from a collection judgment.  Unemployment insurance, disability benefits and some child support payments are also exempt.


Bond process ‘egregious’


Madigan also said she finds “completely egregious” the process by which bond is handled in debt cases.


“Oftentimes, what we have heard from the legal aid folks is that the amount of the bond is set at the amount that is owed to the creditor, and the bond money goes directly to the creditor,” Madigan said.  “We are basically using taxpayer dollars to collect private debt.”


In Ebersohl’s case, bond was set at $530, she said.  Of that, $500 was turned over to the collection agency.


Madigan wants to outlaw the practice of bail money going to collectors.  She also wants debtors to be given a list of their rights, including a plain-language explanation of income that is exempt from judgment.


“In civil cases, you don’t have a right to a (court-appointed) lawyer,” Madigan said.  “People have no idea what, if any rights, they have.”


Madigan said the “number one issue” for legislation is a requirement that notices to appear in court be delivered in person rather than mailed or published in a newspaper to ensure that debtors know about their court dates.


Kevin Kelly, president of the Illinois Creditors Bar Association, said the type of warrants that led to the arrest of Ebersohl and other debtors (called body attachment orders) are used in “rare instances.”


Kelly’s associate, Robert Markoff, wrote an article for the Chicago Law Bulletin saying the problem lies with an attorney general’s opinion issued in 1971.


“It is this opinion that created a legal culture (mainly in downstate Illinois and, in particular, Champaign County) allowing the liberal use of arrest orders to bring people into court,” Markoff wrote.


Kelly and Markoff both said rescinding that opinion would go a long way to ending the problem.  Kelly said he’s asked to meet with Madigan to discuss the issue. A Madigan representative said Friday her office has received Kelly’s request and a meeting will be set up.


Doug Finke can be reached at (217) 788-1527.