A collection agency that never responded to a lawsuit or appeared to defend itself against a default judgment nonetheless still won a dismissal because the plaintiff did not properly serve the defendant with the summons after alleging the agency violated the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act.
A copy of the ruling in the case of Craig v. Global Solution Biz LLC can be accessed by clicking here.
The plaintiff alleged the defendant violated the FDCPA and TCPA by using an automated telephone dialing system to contact him on his cell phone at times when the defendant knew the plaintiff was at work and not available to talk.
Before filing a complaint, the plaintiff’s lawyer contacted the defendant and sent a demand letter and a draft copy of the complaint. The defendant avoided any more contact with the plaintiff, which led to him filing his complaint. The plaintiff’s lawyer notified the defendant of the suit via first-class mail and requested the defendant waive service. The defendant did not reply. Exactly 91 days later, the plaintiff sent the summons and the complaint via certified mail to the defendant. After the defendant did not respond, the plaintiff filed a motion for default judgment. This time, the plaintiff hired a process server to deliver the motion to the defendant. The process server noted that the defendant was working in in a shared coworking space and left the motion with the defendant’s receptionist.
The plaintiff was supposed to attempt to personally serve the documents before sending anything in the mail, according to the rules of civil procedure in Georgia. The plaintiff also forgot to check a box on the form when he mailed documents to the defendant requiring that delivery be restricted to the addressee on the envelope. The plaintiff was also supposed to serve the documents within 90 days, but was a day late in doing so.
Even if the defendant never responded and was difficult to get in touch with, the judge said his hands were tied regarding the defective service.
“It appears that Craig’s counsel has faced some difficulties with getting in contact with GSB and that GSB has been acting in an evasive manner,” wrote Judge David Norton of the District Court for the District of South Carolina, Charleston Division. “However, the proprietary of service is of the utmost importance when a defendant is being faced with default judgment and an obligation to pay thousands of dollars in a case that has not been decided on the merits. Moreover, the defects in Craig’s service may appear to be relatively minor, but the court is bound by the Federal Rules of Civil Procedure and Fourth Circuit precedent and must enforce the rules of law contained therein.”
While dismissing the case, the judge left the door open for the plaintiff to re-file his complaint and properly serve the defendant.
