By Tomio Narita, Simmonds & Narita LLP
Consumers often assert FDCPA claims against collectors based upon alleged misstatements or misconduct by process servers while serving a state court summons and complaint. Thus, consumers may claim a process server was rude or abusive at the time of service, causing them to suffer emotional distress, or that a process server made false statements about the debt. These allegations are not sufficient to impose liability on the collector under the FDCPA.
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Worch VS Wolpoff, was my company's landmark case for FDCPA Vicarious Liability relief claims, that won in Summary Judgment in US MO. Southern Dist. Court, that further establishes no VL correlation for debt collectors and attorneys regarding Process Servers. If you are a Process Server, Sheriff or Constable, this case is an affirmative defense against such similar (frivolous) FDCPA assertion by defendant.
ReplyDeleteMoreover, this case re-enforced six general colloquial principals (for me.)
1. Defendants will say and do just about anything to assert that you, the process server, acted inappropriately, even lie, to have their debts set aside.
2. If defendant can establish that a process server is the "DIRECT AGENT" of the debt collector, not withstanding the Process Server exemption under Title, 15 U.S.C. § 1692a(6)(D), a vicarious liability claim might, to a greater degree, be more arguable.
3. Debt collectors will throw a Process Server under the bus in a New York minute. W&A allegedly attempted to "persuade" Kellerman's carrier to hang Kellerman "out to dry." Stay vigilant for mishandling during this role reversal period where you now find your company as a respondent/defendant.
4. "Process Server" brokering companies are not held to the higher standard of the Process Server in receipt of and servicing of the pleading. They act only as the brokers of process, in effect, eliminating their culpability what-so-ever even though THEY actually MAY BE the DIRECT AGENT of the debt collector, themselves.
5. If a claim is brought against you, the actual process server of a forwarded paper, you can't assume the forwarding agent's friendly support or their E&O extends to you in any way. You better have your own and lawyer up quickly. You are on your own.
6. On such an important case, don't settle as it might negatively impact our entire industry with regard to FDCPA and debt collection precedence. Your E&O will likely, by default, attempt to persuade for a settlement as is their M.O. Don't do it! Fight all the way to a positive disposition if you know you're right even if it requires personal funding! In my opinionm, it's too important to our profession.