A District Court judge in New York has denied a motion to dismiss filed by the defendants in a Fair Debt Collection Practices Act case over allegations that the plaintiff was never properly served with a summons in an underlying collection lawsuit, allowing the case to proceed on claims tied to alleged “sewer service” and the filing of a false affidavit of service.
The background: The case stems from a collection lawsuit filed in 2023. The defendant law firm retained a process service agency, which in turn used an individual process server to serve the plaintiff. According to the affidavit of service filed in the collection case, the plaintiff was served via substitute service on a co-resident and by mail.
- The plaintiff alleges that no such co-resident existed and that neither she nor her mother were present at the time service allegedly occurred. Instead, both were at a hospital caring for the plaintiff’s newborn child. The plaintiff claims she never received the summons and only became aware of the lawsuit after receiving a court notice weeks later.
- The complaint also points to broader patterns. The process server allegedly claimed substitute service in approximately 98% of cases he handled, and records suggested implausible timelines for service attempts. The plaintiff further alleged that both the law firm and the process service agency had access to this information and should have recognized red flags tied to improper service practices.
- After learning of the lawsuit, the plaintiff sought legal assistance and moved to dismiss the collection action based on improper service. The case was ultimately discontinued without prejudice, but the plaintiff alleges she incurred costs and distress in responding to a lawsuit she says she was never properly served in.
The ruling: Judge Andrew L. Carter, Jr., of the District Court for the Southern District of New York denied the defendants’ motions to dismiss, finding that the plaintiff had adequately alleged standing and sufficiently stated claims under the FDCPA and other statutes.
- On standing, the judge emphasized that even relatively small financial harms, such as travel expenses to meet with counsel, can satisfy the injury requirement. He also found those harms were “fairly traceable” to all defendants, noting that each allegedly played a role in the service process or relied on the affidavit of service.
- Judge Carter rejected arguments that the plaintiff’s injuries were speculative because no default judgment was entered, pointing instead to the real-world burden of having to respond to the lawsuit.
- On the FDCPA claims, the judge found the allegations went beyond “mere technical falsehoods.” The plaintiff alleged that the defendants failed to effectuate lawful service, filed a false affidavit, and continued to rely on it in litigation. The court also allowed claims to proceed under theories of vicarious liability, noting that a law firm may be liable where it knew or should have known affidavits were likely false.
- Beyond the FDCPA, the judge allowed claims under New York General Business Law to proceed, finding the plaintiff plausibly alleged materially misleading conduct and intentional deception.
