Smith v. Solomon and Solomon, P.C.
2013 U.S. App. LEXIS 8329
| 1st Cir. | 2013Background
- Smith resides in New Bedford, MA, and faced a 2010 default judgment in a Massachusetts debt action by Solomon & Solomon, P.C.
- In 2011, Solomon & Solomon sued in Attleboro District Court to collect the judgment via Massachusetts trustee process (wage attachment).
- Mass. trustee process targets the trustee, not the debtor; venue is tied to trustee location rather than debtor residence.
- FDCPA § 1692i(a) generally restricts actions to sue “against any consumer” in a specific venue; question is whether post-judgment trustee process qualifies as a debt action against the consumer.
- District court dismissed the FDCPA venue claim; this appeal is de novo.
- Court agrees Massachusetts statute defines trustee process as action against the trustee and not the debtor, resolving the core venue issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does post-judgment Massachusetts trustee process qualify as a ‘legal action on a debt’ against a consumer under §1692i(a)? | Smith argues Fox broadens ‘legal action’ to enforcement actions. | Solomon & Solomon contend it is not an action against the consumer, but against the trustee. | No; trustee process is not an action against the consumer. |
| Do Massachusetts trustee process venue rules conflict with FDCPA venue aims? | Smith seeks application of FDCPA venue controls. | Trustee-process venue aligns with trustee location; no forum-shopping concern. | No conflict; state venue rules govern in trustee process. |
| Are Fox (9th Cir.) and Adkins persuasive for interpreting §1692i(a) in this context? | Smith relies on Fox to interpret ‘legal action’ broadly. | Fox is unpersuasive on ‘against any consumer’; Adkins relies on Ohio scheme. | Fox and Adkins not controlling here; not persuasive. |
| Should defendants’ appeal for fees be decided on the merits at this stage? | Defendants seek fees on appeal. | Fees must be sought via a separate motion within 30 days of final judgment. |
Key Cases Cited
- Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507 (9th Cir. 1994) (broadly addresses ‘legal action’ language in FDCPA venue provision)
- Pickens v. Collection Services of Athens, Inc., 273 F.3d 1121 (11th Cir. 2001 (Table)) (garnishment not an action against the consumer under FDCPA)
- Harrington v. CACV of Colo., LLC, 508 F. Supp. 2d 128 (D. Mass. 2007) (distinguishes trustee process from garnishment in FDCPA context)