Judge Grants MTD in FDCPA Case Over Summons Sent to Individual Instead of Attorney

A District Court judge has granted a defendant’s motion to dismiss a Fair Debt Collection Practices Act case after it was sued for mailing a summons to the home address of the plaintiff, even though she was represented by an attorney.

A copy of the ruling in the case of Hague v. Lyons, Doughty & Veldhuis can be accessed by clicking here.

The plaintiff incurred a credit card debt that was placed with the defendant for collection. The plaintiff notified the defendant in a letter that she was being represented by an attorney. Six weeks later, the defendant filed a lawsuit against the plaintiff to collect on the unpaid debt. The summons was mailed to the home address of the plaintiff and not to her attorney. The plaintiff filed suit, alleging that the defendant violated Section 1692c(a)(2), which states:

Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt … if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer.

But a pair of rules in New Jersey allow the defendant to exercise an exception under Section 1692c(b) of the FDCPA, specifically the provision if “there is express permission of a court of competent jurisdiction.”

New Jersey Rule of Court 6:2:3(d)(1) states that plaintiffs must submit to the clerk the addresses of the parties to be served, which does not include attorneys who have not yet formally entered an appeared. As well, Rule 1:5-1 states that “[i]n all civil actions, unless otherwise provided by rule or court order, orders, judgments, pleadings subsequent to the original complaint . . . shall be served upon all attorneys of record in the action and upon parties appearing pro se.”

The judge disagreed with the plaintiff’s contention that neither rule applied in this case and that, even if they do apply, they conflict with the FDCPA.

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