Judge Grants MTD in FDCPA Case Over Service During Pandemic

A District Court judge in Michigan has granted a defendant’s motion to dismiss after it was sued for allegedly violating the Fair Debt Collection Practices Act when the plaintiffs were served with a summons and complaint in a debt collection lawsuit because the process servers purportedly harassed them by serving them without wearing proper protection to prevent the possible spread of COVID-19.

A copy of the ruling in the case of Eickenroth v. Roosen, Varchetti & Olivier can be accessed by clicking here.

One of the plaintiffs was served outside of her home last May by a process server who was not wearing a facemask or gloves. The other was served by a process server who was wearing a facemask but was not wearing gloves. Along with being served with a summons and complaint, they were both also provided copies of an order from the Michigan Supreme Court extending all deadlines related to filing answers in civil proceedings.

The plaintiffs allege that the service violated Sections 1692c(a)(1) and 1692d(1) of the FDCPA by threatening to violence or other criminal means to harm a person and by communicating with an individual at at place known or which should be known to be inconvenient to the consumer.

The defendant argued in its motion to dismiss that a fear of contracting COVID-19 is not a sufficient concrete injury to confer standing for the plaintiffs to assert their claims. The plaintiffs contend that the process server was violating the stay-at-home order that was in place at the time in Michigan and that they had a right to be free from the “criminal approach of a process server to serve a debt collection lawsuit.”

The order which was provided to the plaintiffs when they were served specifically indicated that litigants were free to pursue litigation while extending the deadlines to filing initial responsive pleadings.

With respect to whether the plaintiffs had standing to sue, the plaintiffs’ argument that they thought they only had 21 days to respond to the suit was a “mistaken belief,” the defendant argued. That the plaintiffs promptly sought out an attorney to challenge the state court action was not detrimental or indicative of an injury, ruled Judge Stephanie Dawkins Davis of the District Court for the Eastern District of Michigan.

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