Smith v. Solomon & Solomon, P.C.
887 F. Supp. 2d 334
D. Mass.2012Background
- Smith sues for FDCPA violations after a post-judgment trustee process in Attleboro; New Bedford debt default judgment issued May 26, 2010 remains unpaid.
- Attleboro action sought trustee process to attach Smith’s wages via the U.S. Interior Department; Smith resided in New Bedford and did not sign the debt contract in Attleboro area.
- Defendants Solomon & Solomon, P.C. and Julie B. Solomon moved to dismiss under Rule 12(b)(6) and seek fees under 15 U.S.C. § 1692k.
- Court analyzes whether the FDCPA venue provision applies to Massachusetts trustee process and whether trustee process is a “legal action on a debt” against the consumer.
- Massachusetts trustee process is a legal action against the third-party trustee, not against the consumer; complaint dismissed for lack of FDCPA venue violation; fees denied.
- Case posture: motion to dismiss granted in part (only to extent of dismissal) and judgment entered for defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the FDCPA venue provision apply to Massachusetts trustee process? | Attleboro trustee process is a legal action against the consumer under FDCPA. | Trustee process targets the employer/trustee, not the consumer. | Trustee process is against the third-party trustee; FDCPA venue does not apply. |
| Is the Attleboro suit a “legal action on a debt” against the consumer under FDCPA? | Yes, the suit on judgment is against Smith, the consumer. | The action is against the trustee/employer, not the consumer. | Court treats Attleboro as a trustee-process action against the trustee, not the consumer. |
| Should the plaintiff recover fees under § 1692k? | Fees warranted due to FDCPA violation posture. | No bad faith or harassment shown; fees not warranted. | Fees denied; no evidence of bad faith. |
Key Cases Cited
- Fox v. Citicorp Credit Serv., Inc., 15 F.3d 1507 (9th Cir. 1994) (post-judgment enforcement actions are legal actions on a debt; not whether they are against the consumer)
- Pickens v. Collection Serv. of Athens, Inc., 165 F. Supp. 2d 1376 (M.D. Ga. 2001) (garnishment not always an action against the consumer)