A federal district court in Massachusetts has ruled that the state’s constables may be sued under the Fair Debt Collection Practices Act (FDCPA) when they engage in debt collection and judgment enforcement.
According to the court’s summary of the facts, a Massachusetts’ constable service was hired to collect a 2006 judgment against Sergio Espinosa, Sr. In an effort to collect the judgment, the constables mistakenly seized the car of his son, Sergio Espinosa, Jr. The car was retained for 16 days until the mistake was realized and the vehicle was returned.
Shortly thereafter, the constables seized another car. This time it was the vehicle leased by Espinosa, Sr. Although the car was registered to the correct Espinosa, it was actually owned by the car dealership. Thus, it could not be seized and sold to satisfy a judgment owed by the lessee.
Both Espinosa’s (junior and senior) filed suit against the constable service along with the collection agency employing the constables for violations of the FDCPA.
The constables moved to dismiss the case, claiming that they were not “debt collectors” under the FDCPA.
Section 1692a of the FDCPA defines “debtor collector” as
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 to be owed or due another.
This definition excludes
any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt. Id. § 1692a(6)(D).
The constables contend that they fall under this “legal process” exclusion because they acted “in connection with the judicial enforcement of [a] debt as ordered by the [e]xecution granted to [their client].”
The court rejected this argument:
the “process server” exclusion does not apply because the [pleadings] do not allege that [the constables] attempted to serve process to the Espinosas…Further, to the extent the [pleadings] allege that [the constables] attempted to collect on the 2006 judgment…such would disqualify them from the legal process server exclusion, even assuming they did serve process to the Espinosas. See Andrews v. S. Coast Legal Servs., Inc., 582 F. Supp. 2d 82, 88 (D. Mass. 2008) (stating that “a person who goes beyond being merely a messenger in serving legal process and engages in prohibited abusive or harassing activities to force an individual to repay a debt is no longer exempt under the legal process server exception” because “he steps beyond the bounds of the official duties inherent in serving process and takes on a secondary role of ‘debt collector’”…Accordingly, [the constables] plausible constitute “debt collector[s]” under the FDCPA.
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