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Abstract

Debtors' rights and the due process of debt collection have received increasing attention recently in legislative as well as judicial spheres. There have been many efforts to rectify basic contractual inequities, to abolish summary prejudgment remedies and to limit extra-judicial collection abuses. However, comparatively little scrutiny has been focused on postjudgment or post-hearing remedies in the later stages of the collection process. Until recently, Maine's legal remedies for postjudgment debt collection were notorious for their harshness. Jail, the principal sanction, was freely used as a creditors' club to make debtors settle claims. Although inability to pay was not in itself grounds for imprisonment, inability to pay combined with certain procedural defaults or failure to assert rights at a disclosure hearing was often tantamount to submitting to arrest, Under pressure of national publicity, legislative unrest and a successful constitutional assault, Maine's 130-year-old debtor disclosure statute was repealed in 1971. In its place a subcommittee of the Maine Bar Association drafted and sponsored through the legislature an "Act Relating to the Enforcement of Money Judgments" which differs significantly from other state laws in the carefully restrained way it makes remedies available to the judgment creditor. As the Maine experience indicates, there is a need to reconsider state collection and disclosure procedures which follow judgment. Although few states have laws permitting the abuses prevalent under the former Maine statute, many states continue to rely on traditional methods and procedures for collection which have not been reevaluated in light of modern permissive credit practices. Maine provides an excellent case study because of the sudden shift from a creditor-oriented set of laws to a statute which protects debtors in the postjudgment phase of collection while still providing effective remedies against debtors who are unwilling to pay, rather than unable. The new system, in effect since September 1971, has generated diverse reactions from courts, creditors' attorneys and consumer interest groups; but despite the discomforts of adjustment, there is consensus that the statute at least works. Evaluating how well it works in comparison to conventional remedies is the purpose of this comment.

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