Use of Criminal Process to Enforce Collection of Debt

An abuse of process occurs when a legal process is misused, or used inappropriately for a purpose other than that which it was designed to accomplish.  An action for abuse of process may lie if the criminal process is used to collect a civil debt.[i] The very purpose of a criminal prosecution is to bring a person who has committed a crime to justice and not to aid in the collection of a civil debt.  Hence the law perceives an arrest with a purpose of forcing payment of money as a distortion of legislative intent.
A person who seeks to collect a debt can use the civil adjudicative process, which is primarily designed for the settlement of disputes between parties. Threatening to use, or using, the criminal process to coerce adjustment of private civil claims or controversies is a subversion of criminal justice process.  In addition, courts have held that the improper use of criminal process may result in the loss of public confidence in the legal system.[ii]  In Donohoe, 722 F. Supp. 1507, the plaintiff owed the defendant money and in order to collect the debt, the defendant instituted a criminal proceeding against the plaintiff for grand larceny.  When the plaintiff paid the debt, the criminal action was dismissed with prejudice.  The court found that the defendant abused the criminal process since the defendant intentionally and maliciously used the legal process for an ulterior purpose to collect a civil debt.  The court held that the defendant’s act in the use of the process was improper in the regular conduct of the initiated proceeding.  Hence the court awarded actual compensatory damages as well as punitive damages to plaintiff.

However, the mere issuance of a warrant and the causing of the plaintiff’s arrest using the criminal process will not constitute an abuse of process unless the defendant has undertaken some other express action which amounts to a misuse of criminal process after it has been issued.[iii]

The core element of abuse of process is the ulterior motive, which maybe  manifest as coercion, or extortion to obtain a collateral advantage not involved in the proceeding itself, such as payment of a debt.  For instance, the arrest of the person of a plaintiff could constitute the element of seizure which can serve as proof of ulterior motive. [iv]  However, where process is used for its proper purpose, the mere fact that such use may incidentally and indirectly exert pressure for the collection of a debt does not make it an abuse.  For instance, in Crease v. Pleasant Grove City, 30 Utah 2d 451 (Utah 1974), the convict refused to pay a monthly service charge for sewer service and a councilman signed a criminal complaint charging the convict with violation.  The convict did not challenge the judgment that sentenced him to serve 20 days in jail.  After serving the 20-day sentence, the convict obtained habeas corpus relief on the ground that 30 more days had been improperly added to the original sentence.  On appeal, the court denied damages to the convict for abuse of process, holding that although the councilman was keen in the collection of the delinquency from the convict, “imposing liability on the councilman for abuse of process was not justified because there was nothing improper about the issuance of a commitment on the original judgment imposing a 20-day sentence and the councilman had nothing to do with the later addition of 30 days to the sentence.”[v]

[i] Restatement of Torts Second § 682

[ii] Donohoe v. Burd, 722 F. Supp. 1507, 1521 (S.D. Ohio 1989)

[iii] Givens v. Rent-A-Center, Inc., 720 F. Supp. 160 (S.D. Ala. 1988)

[iv] Sachs v. Levy, 216 F. Supp. 44 (E.D. Pa. 1963).

[v] Id.


Inside Use of Criminal Process to Enforce Collection of Debt