Fair Debt Collection Practices Act
There are a growing number of actions being filed against process servers and agencies for violating the Fair Debt Collection Practices Act (FDCPA) which governs and restricts practices for collecting consumer debt.
Below are reported cases challenging the exemption for process server in the definition of a “debt collector” found in 15 U.S.C. 1692a(6)(D), the specific exception for a person serving process. The cases allege that when a process server signs a false proof of service, they lose the exemption, and become subject to the FDCPA as a “debt collector”. Quoting Freeman v. ABC Legal Services Inc., 827 Fed. Supp. 2d 1065, 1074, “if process servers falsely claimed they had effected personal service and executed a false proof of service document, then their actions would take them beyond their role as process servers and render them ineligible for the exception.”
Sykes v. Mel Harris & Assocs., LLC, 757 F. Supp. 2d 413, 423 (S.D.N.Y. 2010)
Freeman v. ABC Legal Services, Inc., 827 F. Supp. 2d 1065, 1074 (N.D. Cal. 2011)
Holmes v. Electronic Document Processing, Inc., 966 F.Supp.2d 925 (N.D. Cal. 2013) This was a trial court order denying the defendant process server agency’s motion to dismiss the action. One issue the court addressed was whether the filing of a false proof of service to obtain a judgment constituted an act that made the process server a debt collection, and not exempt under the FDCPA. Another issue the court ruled on was that when the agency “[k]nowingly and intentionally withhold[s] their true names and process server registration numbers from process server returns, [it is] in violation of California Bus. & Prof. Code § 22356.5(a), with the intent to deceive.”