AMENDED MEMORANDUM AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS
This is a debt collection action alleging the improper calculation and imposition of attorney’s fees in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). Plaintiff So-cheata Som contends that defendant Daniels Law Offices, P.C. (“DLO”) and its principal shareholder, defendant Richard Daniels, sent her a debt collection letter that improperly assessed a percentage-based attorney’s fee. Specifically, Som asserts claims for (1) assessment of a percentage-based legal fee that was not expressly authorized by agreement, in violation of 15 U.S.C. § 1692f(l); (2) misrepresentation as to the legality of a percentage-based legal fee, in violation of § 1692e(2)(B); (3) assessment of a percentage-based legal fee based on amounts not collected, in violation of § 1692f; (4) misrepresentation as to the legality of a percentage-based legal fee based on amounts not collected, in violation of § 1692e(2)(B); (5) assessment of a percentage-based legal fee prior to the performance of any legal work, in violation of § 1692f; and (6) misrepresentation as to the legality of a percentage-based legal fee prior to the performance of any legal work, in violation of § 1692e(2)(B); (7) misrepresentation as to the legality of a percentage-based legal fee in violation of Mass. Gen. Laws ch. 93A; (8) assessment of a percentage-based legal fee that was not expressly authorized by agreement, in violation of ch. 93A; (9) assessment of a percentage-based legal fee based on amounts not collected, in violation of ch. 93A; and (10) assessment of a percentage-based legal fee prior to the performance of any legal work, in violation of ch. 93A.
Defendants have moved separately for dismissal pursuant to Fed.R.Civ.P. 12(b)(5) for insufficiency of service of process, and jointly for dismissal pursuant to Fed. R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons stated below, the motions under Rule 12(b)(5) will be denied, and the motions under Rule 12(b)(6) will be denied.
I. Background
The following facts are taken as true for purposes of the present motion.
DLO is a law firm that primarily engages in debt collection. Defendant Richard Daniels is an attorney and shareholder of DLO. 1
In February 2007, plaintiff Socheata Som received a debt collection letter from DLO. The letter stated as follows:
A claim has been placed against you with this office by [Midland Funding] in the amount of $1,349.25, together with a *353 reasonable attorney’s fee of $202.38 for a total of $1,551.63. You may recall that your Agreement with our client provides that if your account became past due and was placed in the hands of an attorney for collection, you agreed to pay a reasonable attorney’s fee. This office considers 15% of the principal balance placed to be a reasonable attorney’s fee at this point.... Please understand that no attorney in this office has reviewed this claim against you as of yet.
(PI. Ex. A).
Som filed this action on May 15, 2007. 2 On the day the complaint was filed, summonses were issued as to both defеndant Daniels and defendant DLO. On September 10, 2007, process server Richard Fal-lon hand-delivered copies of both summonses and the complaint to DLO’s office in Boston. One summons was addressed to “Richard S. Daniels, Jr. c/o Daniels Law Offices, One Center Plaza Boston, MA”; the other was addressed to “Daniels Law Offices, One Center Plaza Boston, MA.” (Def. Ex. A). Fallon left copies of both documents with Sarah Geyser, an employee at DLO. On September 12, 2007 (the 120th dаy after issuance of the summons), the plaintiff made returns of service. (Id.).
II. Analysis
To survive a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), the factual allegations in a complaint must “possess enough heft” to set forth “a plausible entitlement to relief.”
Gagliardi v. Sullivan,
A. Service of Process
Both defendants have moved to dismiss the case for insufficiency of service of process pursuant to Fed.R.Civ.P. 12(b)(5). Both defendants were served in an identical manner, although one is an individual and one is a corporation.
Fed.R.Civ.P. 4(e) provides that service on an individual from whom a waiver has not been obtained and filed may be effected by
(1) following state law for serving a summons ... in the state where the district is located ...; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) by delivering a copy of each to an agent authorized by aрpointment or by law to receive service of process.
Id. It is undisputed that the only place service was attempted as to Daniels was at the DLO office; he was not served personally or at home. Daniels contends that Ms. Geyser, the employee who actually received service, was not an agent authorized by appointment or law to receive service of process on his behalf.
Fed. R. Civ P. 4(h) provides that service on a domestic corporation may be effected as follows:
*354 Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic ... corporation ... must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process....
Id. Rule 4(h) thus permits service as provided under Rule 4(e)(1), which in turn permits service as provided by state law; Massachusetts law generally tracks the federal rule, but also permits service on “the person in charge of the business at the principal place of business in the Commonwealth, if any.” Mass. R. Civ. P. 4(d)(2). DLO contends that Ms. Geyser is not “an officer [or] a managing or general agent” or “the person in charge of the business” of DLO, and that she is not otherwise authorized by appointment or by law to receive service of process.
A return of service “generally serves as
prima facie
evidence that service was validly performed.”
Blair v. City of Worcester,
Here, both defendants submitted identical affidavits executed by John Murray, an attorney employed at DLO. Murray attests that he is “Director of Operations” at DLO and responsible for the management of personnel. (Murray Aff., ¶ 3). Murray further states that Ms. Geyser is a motions clerk at DLO, that she is not in charge of the business, and that “[neither] Richard S. Daniels, Jr. nor I have ever authorized her to accept service for Daniels Law Offices or to perform any corporate function whatsoever.” (Id. at ¶¶ 5-9). Defendants have not submitted affidavits from Ms. Geyser or defendant Daniels.
“Under Massachusetts law, an affidavit is sufficient to refute the
prima facie
presumption created by a return of service.”
Blair,
1. Daniels
Here, defendant Daniels relies entirely on the Murray affidavit; he has submitted no affidavit of his own. As not *355 ed, Murray states that “[neither] Richard S. Daniels, Jr. nor I have ever authorized [Ms. Geyser] to accept service for Daniels Law Offices or to perform any corporate function whatsoever.” (Murray Aff., ¶ 9) (emphasis added). The affidavit therefore does not address whether Geyser was authorized to accept service on behalf of Daniels as an individual. Accordingly, defendant Daniels has failed to submit any evidence to rebut plaintiffs presumption of proper service, аnd his motion to dismiss for insufficiency of service of process will be denied.
2. DLO
DLO’s motion also relies entirely on the Murray affidavit. Again, that affidavit asserts that (1) Geyser is not an officer of DLO, (2) Geyser was not in charge of DLO’s office at One Center Plaza, and (3) “[neither] Richard S. Daniels, Jr. nor I have ever authorized [Ms. Geyser] to accept service for Daniels Law Offices or to perform any corporate function whatsoever.” (Murray Aff., ¶¶ 6-9).
Plaintiff has respоnded by submitting an affidavit of Joseph Fallon, the process server, attesting that he asked Ms. Geyser “if she were authorized to accept service for the law firm and Mr. Daniels personally” and that “[s]he replied that she was.”
Murray’s attestation that Daniels never authorized Geyser to accept service of process is entitled to no evidentiary weight; there is no indication that Murray had personal knowledge of that fact, or indeed even hearsay knowledge. Murrаy does not attest, for example, that he spoke with Daniels, and that Daniels told him that he had never made the authorization. As noted, there is no affidavit from Daniels himself, or from Geyser.
The Court is left, then, simply with the statement of Murray that he personally never authorized Geyser to accept service. Under the circumstances, that is insufficiently “strong and convincing” evidence to rebut the presumption of proper service.
See Curley,
The Court notes that the entire matter of service of process in this case reflects poorly on everyone concerned. Plaintiff elected to serve both an individual and a corporation by simply serving the corporation’s receptionist, thereby running a considerable risk that the service would prove ineffective. Defendants, for their part, received actual notice of the complaint, and have sought dismissal for technical reasons only, having suffered no prejudice of any kind. While they are entitled to seek to enforce the rules — technical though they may be — defendants’ efforts to do so were limited at best; among other things, they did not trouble themselves to submit an affidavit from either Daniels (the alleged principal) or Geyser (the alleged agent). Under the circumstances, the resources of the parties and the Court could surely have been put to better use. In any event, defendant DLO’s motion to dismiss for insufficiency of service of process will be denied.
B. Failure to State a Claim
1. Personal Liability of Corporate Officer
Defendant Daniels asserts that he has been named in the complaint “simply because he worked for and was a shareholder of Daniels Law Offices, P.C.,” and therefore he should be dismissed from the case. (PI. Mem. at 10). An individual cannot be held personally liable for the debt collection actions of a corporation merely by virtue of his status as an officer, director, or shareholder.
See, e.g., Musso
*356
v. Seiders,
To establish an individual defendant’s liability for FDCPA purposes, a plaintiff must first establish that the defendant is a “debt collector.”
See Musso,
any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted tо be owed or due another.
15 U.S.C. § 1692a(6). A “high ranking employee, executive or director of a collection agency may fit within the statutory definition of a debt collector.”
Musso,
Defendant is correct that his status as an employee and stakeholder in DLO, alone, does not subject him to FDCPA liability. The complaint, however, specifically alleges that “Defendant Richard S. Daniels, Jr. was personally involved in formulating, implementing, and/or ratifying the [language of the debt-collection letter] and the underlying debt collection practices of defendant law firm, and is therefore jointly and sevеrally liable with Daniels Law Offices, P.C. for any violation of law arising from same.” (Complt., ¶ 8). These allegations, taken as true for the purposes of this motion, are sufficient to withstand a motion to dismiss.
See Musso,
2. Sufficiency of Claims
The FDCPA “imposes strict liability on debt collectors for their violations.”
Harrington v. CACV of Colorado, LLC,
*357 Here, defendants do not disputе that plaintiff was the object of collection activity arising from consumer debt. Furthermore, the complaint alleges that defendants are “debt collectors” within the meaning of FDCPA. (Complt., ¶¶ 6-8).
Defendants contend, however, that they have not engaged in any “act or omission” prohibited by the FDCPA. Plaintiffs bring one FDCPA claim under 15 U.S.C. § 1692f(l) (Count 1), two under § 1692f (Counts 3 and 5), and three under § 1692e(2)(B) (Counts 2, 4, and 6). Section 1692f states in relevant part:
A debt collector may not use unfair or unconsсionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.....
Id. (emphasis added). Section 1692e(2)(B) states in relevant part:
A debt collector may not use any false, dеceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(2) The false representation of—
(B) Any services rendered or compensation which may be lawfully received by any debt collector for .the collection of a debt.....
Id. (emphasis added).
a. Counts 1 and 2
Count 1 asserts a claim for assessment of a percentage-based legal fee that was not “expressly authorized” by agreement; Count 2 asserts a claim for misrepresentation of the legality of that fee. Defendants contend that the imposition of percentage-based legal fees, as a matter of law, does not violate the FDCPA. Defendants principally rely on
Kirscher v. Messerli & Kramer, P.A.,
In
Kirscher,
the plaintiff alleged that the defendants had wrongfully demanded attorneys’ fees that were based on a contingency fee, not based on actual work performed.
Here, however, the language of plaintiffs “Cardmember Agreement” (the underlying contract at issue) states as follows:
14. Attorney’s Fees. You agree to pay all costs incurred by us, our successors, or assignees, in collecting unpaid indebtedness or in enforcing this Agreement, including attorney’s fees or costs ...
(Ex. A) (emphasis added).
6
For purposes
*358
of the present motion, the Court cannot find as a matter of law that the language “all costs incurred” necessarily authorizes a percentage-based attorney’s fee. Depending on the facts, a percentage-based fee might or might not be part of the actual “costs incurred” by the creditor, and the actual underlying facts will have to await discovery. Indeed, even under the arguably broader contract language of “reasonable attorney’s fees,” courts have found that liquidated or pеrcentage-based attorney’s fees can violate the FDCPA.
See Kojetin v. CU Recovery, Inc.,
b. Counts 3 and 4
Plaintiff separately contends that defendants violated § 1692f by assessing a percentage-based legal fee based on amounts not yet collected (Count 3), and violated § 1692e(2)(B) by misrepresenting their ability to do so (Count 4).
As noted, the Cardmember Agreement provides that “You аgree to pay all costs incurred by us, our successors, or assignees, in collecting unpaid indebtedness or in enforcing this Agreement, including attorney’s fees or costs.... ” (emphasis added). Plaintiff contends that the creditor did not actually incur any legal fees on amounts not collected, as DLO has a contingency-fee agreement with the creditor that provides for attorney’s fees only on amounts that had been in fact collected. The essence of the claim in Counts 3 and 4 thus appears to be that defendants represented that the creditor had incurred a legal expense (a percentage of the entire balance) when in fact it had not (it had incurred only a percentage of the collected balance). Recast in that light — which requires a somewhat generous construction of the complaint — Counts 3 and 4 appear to state a claim sufficient to survive dismissal under Rule 12(b)(6).
c. Counts 5 and 6
The debt collection letter sеnt to plaintiff included the following language: “Please understand that no attorney in this office has reviewed this claim against you as of yet.” (Def. Mot. to Dismiss, Ex. A). Plaintiff contends that defendants thereby violated § 1692f by assessing a
*359
percentage-based legal fee based on legal work they had not yet performed (Count 5), and violated § 1692e(2)(B) by misrepresenting their ability to do so (Count 6). Several courts have held or suggested that combining future attorney’s fees with alreаdy-incurred fees violates the FDCPA.
See Pettway,
3. Chapter 93A Claims
Defendants contend that plaintiffs various claims under Mass. Gen. Laws ch. 93A must be dismissed because the FDCPA preempts its remedies. The First Circuit, however, as well as many district courts, have held that violations of the FDCPA are
per se
violations of ch. 93A, and have not dismissed such claims on preemption grounds.
See, e.g., French v. Corporate Receivables, Inc.,
III. Conclusion
For the foregoing reasons, defendant DLO’s motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(5) is DENIED. Defendant Dаniels’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(5) is DENIED. Defendants’ motions to dismiss pursuant to Fed. R.CivJP. 12(b)(6) are DENIED.
So Ordered.
Notes
. Plaintiff identifies the defendant as the "president and primary or sole owner of the defendant Daniels Law Offices, P.C.” (Complt., ¶ 3). In his various filings, defendant does not specifically affirm or deny this characterization, only stating that "he worked for and was a shareholder of Daniels Law Offices, P.C.” (PI. Mem. at 10).
. The complaint was filed both individually and as a putative class action.
. Plaintiff has аlso submitted an affidavit from process server Fallon, who attests that he spoke to Ms. Geyser and explained that he was at the DLO office to serve the summonses and complaint. (Fallon Aff. ¶ 3). He also states that he asked her if she was authorized to accept service for DLO and defendant Daniels personally, and she replied that she was. (Id.).
. Although actual notice alone is insufficient to satisfy the burden of service, "actual notice will lead courts to apply a liberal construction of the rules of service.”
Curley,
. Similarly, in
Sierra v. Foster
&
Garbus,
. The complaint refers to the Cardmember Agreement, and plaintiff expressly relies on this contract in asserting her claims. Accordingly, the Court may consider the contract *358 without converting the defendants’ motion to dismiss into a motion for summary judgment. See, e.g., Clorox Co. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 32 (1st Cir.2000).
. Likewise, the Court cannot conclude that a percentage-based attorney’s fee is clearly permitted as a matter of law. "Permitted by law,” in the FDCPA context, generally requires affirmative authоrization, as opposed to "indulgent silence.”
See West v. Costen,