Sunday, June 13, 2010

Are You Liable For Your Process Server Under The FDCPA?

Consumers often assert FDCPA claims against collectors based upon alleged misstatements or misconduct by process servers while serving a state court summons and complaint. Thus, consumers may claim a process server was rude or abusive at the time of service, causing them to suffer emotional distress, or that a process server made false statements about the debt. These allegations are not sufficient to impose liability on the collector under the FDCPA.

The alleged conduct of the process server while serving the summons and complaint is not covered by the FDCPA. In fact, when it defined the term “debt collector” under the FDCPA, Congress specifically noted that the term “does not include . . . . any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt . . . .” See 15 U.S.C. § 1692a(6)(D). This is sometimes referred to as the “process server” exemption, which applies to "those individuals whose involvement in a debt collection communication was limited to serving the communication on the consumer – in effect, to being messengers[.]" Romea v. Heiberger & Assoc., 163 F.3d 111, 117 (2d Cir. 1998); see also S.Rep. No. 95-382, at 3-4 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1697-98 ( The term debt collector is not intended to include ... process servers. ).

Given this exemption, any alleged improper conduct or statements made by a process server while serving or attempting to serve a complaint cannot give rise to FDCPA liability. Since there is no FDCPA liability for the process server’s statements or conduct, the debt collector cannot be held vicariously liable. See, e.g., Worch v. Wolpoff & Abramson, LLP, 477 F. Supp. 2d 1015,1018-19 (E.D. Mo. 2007) (process server who allegedly came to residence and “pounded on the door repeatedly and aggressively” to serve debtor was not subject to FDCPA; collection firm not vicariously liable for server’s alleged conduct); Federal Home Loan Mortgage Corp. v. Lamar, 2006 WL 2422903, *8-9 (N.D. Ohio Aug. 22, 2006) (process server allegedly involved in erratic car chase while serving debtor with complaint not liable under FDCPA; collection firm not vicariously liable).

This conclusion – that collectors are not liable for communications made by their process servers – is reinforced by provisions of section 1692c of the FDCPA. Although that section places important restrictions upon a collector’s ability to communicate with debtors and third parties, it provides exceptions for any communications made with the “express permission of a court of competent jurisdiction.” See, e.g., 15 U.S.C. § 1692c(a), (b) (listing restrictions on communications made at inconvenient times or places, with debtors represented by counsel, or at places of employment, but providing exception for communications permitted by “the express permission of a court of competent jurisdiction”). Collectors are not only permitted by the court to serve a summons and complaint on a debtor, they are required to do so consistent with state law. Thus, the service of the complaint by a process server falls within the exemption under section 1692c(a) and (b) of the FDCPA.

Similarly, even where a consumer has notified a collector in writing that the consumer refuses to pay the debt, or that he wants further communications by the collector to cease and desist, the FDCPA allows the collector to notify the consumer about “specified remedies” that the creditor or collector normally invoke and/or intend to invoke. See 15 U.S.C. § 1692c(c). The service of a state court complaint by a process server is notification that the creditor is seeking to invoke a remedy – judicial enforcement of the debt – and is exempt.

This article is not meant to provide a comprehensive analysis of a debt collector’s potential liability for “sewer service” by a process server. In situations where an FDCPA claim against a collector is based solely upon statements or conduct by a process server in connection with serving or attempting to serve a summons and complaint, however, the FDCPA simply does not apply.

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