A District Court judge in Florida has granted a plaintiff’s motion for partial summary judgment in a Fair Debt Collection Practices Act case after the defendant filed a collection lawsuit in the wrong jurisdiction, ruling that a violation of the statute’s venue provision occurs when the suit is filed, not when the plaintiff is served, and that the defendant was not entitled to the FDCPA’s bona fide error defense because it did not follow its own procedures.
The background: The case arose after the defendant filed a small claims lawsuit to recover a debt owed by the plaintiff, who actually lived in a neighboring county.
- Although the defendant attempted service without success, the plaintiff learned of the case through attorney solicitations and later appeared in court through counsel, who informed the defendant that the venue was incorrect.
- The defendant subsequently sought to transfer the case to the correct jurisdiction, but maintained that no FDCPA violation occurred because service had not yet been made.
The ruling: Judge Paul G. Byron of the District Court for the Middle District of Florida rejected the defendant’s arguments, finding that the FDCPA’s venue violation occurs at the time of filing.
- Judge Byron cited reasoning from the Seventh Circuit, noting that even an unserved lawsuit “may cause actual harm to the debtor” because a pending case could appear on background or credit checks and be used to pressure a consumer to pay informally. He concluded that “FDCPA imposes liability when a debt collector files a lawsuit in an improper district, regardless of whether service of process has occurred.”
- Turning to the debt collector’s invocation of the bona fide error defense, the judge ruled that the defense failed because the firm’s own records showed its procedure — designed to verify a consumer’s correct county — was not performed until months after the lawsuit was filed. “If the function of the skip trace is to determine the proper county in which to file suit in order to avoid filing in the wrong venue, [the defendant] did not properly follow its procedure because performing the skip trace after filing would defeat the entire purpose of the skip trace,” Judge Byron wrote.
- Judge Byron granted the plaintiff’s motion for summary judgment on the issue of liability.
