Friday, April 26, 2013

Split Widened: Can The Venue of Post-Judgment Garnishment Proceedings Violate The Fair Debt Collection Practices Act?

Per Smith v. Solomon & Solomon, P.C. (1st Cir. Apr. 24, 2012)

This unanimous opinion (including Retired Justice Souter) widens a split concerning the venue provisions of the Fair Debt Collection Practices Act (FDCPA).  In brief, the FDCPA requires debt collectors to file any suit "against a[] consumer" where the consumer either (a) "resides" or (b) signed the document giving rise to the debt.  15 U.S.C. 1692i.  Failure to do so can result in civil liability.

The split at issue does not concern initial suits against the consumer to reduce the debt to judgment.  Instead, it concerns the venue for post-judgment enforcement proceedings.  The venue provisions of the FDCPA are still relevant because the FDCPA defines "debt" as "any obligation or alleged obligation of a consumer . . . whether or not such obligation has been reduced to judgment."

The CA1 nonetheless joins the CA11 in holding that, under the relevant state law (Mass. and Ga.), post-judgment garnishment proceedings are not governed by the FDCPA's venue provisions, because it is not a suit "against [the] consumer" (wage-receiver), but rather are against the employer/wage-payor.  (p. 4, 6.)  The CA9 had earlier reached the opposite conclusion, holding that under California law a garnishment action was against the consumer.  (p. 5, 8).

I think the CA1 gets this exactly right.  But I am concerned about the extent to which these decisions make the availability of garnishment or other enforcement remedies depend on the vagaries of state law.  Why should a consumer in Massachusetts be subject to garnishment if his employment is in a different county, but not a consumer in California (or Ohio)?

I think there is another way to reach the right result, one that would have resulted in the CA9 also holding in favor of the collector  As the CA9 opinion notes, Congress passed the FDCPA venue provisions to ensure that consumers would not have to defend against suits in far-away, inconvenient courts.  But a garnishment suit--whether against the consumer or employer--filed wherever the consumer actually works cannot be inconvenient, as the consumer already commutes there daily.

In other words, I would treat "resides" in the venue provision as including every jurisdiction where the consumer would be subject to general (not specific--thats why the signature provision exists) personal jurisdiction.  If a consumer has a house in County A, but works in County B, his continuous and systematic presence in county B would dictate that he "resides"  in both for FDCPA purposes, and County B's exercise of jurisdiction surely would not offend notions of fair play.

True, the noun residence is ordinarily understood as a dwelling.  But--especially with the long hours at firms--a good argument could be made that I dwell both at work and home.  In the words of an old CA2 case:
Domiciliaries are those who have a fixed, permanent and principal home and to which, whenever absent, they always intend to return. At the opposite end of the scale are transients, those persons who are just passing through a locality. In between these notions of permanence and transience are residents. Residency means an established abode, for personal or business reasons, permanent for a time. 


Anonymous said...

A garnishment proceeding is, in fact, a suit by the debtor (brought by the creditor on the debtor's behalf) against a third party. The third-party may seek to claim a right of set-off. Is the FDCPA intended to protect the consumer 's ability to to particiate by restricting the actions to favored venues (sec. 811)?

Klerk said...

Different states (e.g., Ohio) apparently treat garnishment proceedings as against (not by) the debtor, at least according the CA1 opinion cited.

But, if your suggestion that they are suits "by the debtor" is right, then sec. 811 cannot apply, because it only applies to suits "against the consumer," i.e., the debtor.

sharmin monee said...

have enjoyed I reaing your articles. It is well written. It looks like you spend a large amount of time and effort in writing the blog. I dam appreciating your effort. You can visit my website
Collection of judgment