Illinois Federal Court Holds That Debt Collector May Have Violated FDCPA Even Without Serving Debtor with Complaint

The United States District Court for the Northern District of Illinois recently held that the filing of a debt collector’s lawsuit in an improper venue may have constituted a violation of the Fair Debt Collection Practices Act (“FDCPA”), even if the debtor was never served.  See Desfassiaux v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 2015 WL 6798301 (N.D. Ill. Oct. 30, 2015).  In the case, the debt collector filed a collection action in a judicial district in Cook County in which the debtor did not reside.  Though this was permitted at the time of the filing based on a 1996 Seventh Circuit decision, that decision was overruled two months after the complaint was filed.  See Suesz v. Med-1 Solutions, LLC, 757 F.3d 636 (7th Cir. 2014).  As the Suesz decision has been found by most courts to apply retroactively and the FDCPA requires that a debt collection action be brought in the “judicial district or similar legal entity” where either the consumer signed the contract at issue or where the consumer resides, the debtor sued under the FDCPA.  See 15 USC 1692i.   The debt collector moved for summary judgment, primarily arguing that the venue provision of the FDCPA “ is intended to prevent debt collectors from obtaining default judgments by strategically filing cases at inconvenient courthouses” and that because “a default judgment cannot be entered until the debtor is served, the venue provision cannot be violated unless the debtor is served.”  The debt collector relied on a Fifth Circuit decision for this proposition.  See Serna v. Law Office of Joseph Onwuteaka, P.C., 732 F.3d 440 (5th Cir. 2013).  The Court rejected this argument and denied summary judgment, holding instead that a debtor is potentially harmed as soon as the complaint is filed and made available to the public, and that service is not necessary for a violation of the FDCPA based on an improper venue.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com.