Judge Denies Plaintiff’s Motion to Remand FDCPA Case Back to State Court

A default judgment obtained in an underlying collection lawsuit is enough of a concrete injury for a plaintiff to have standing in a Fair Debt Collection Practices Act case, a District Court judge in California has ruled, disagreeing with the plaintiff’s contention that he does not have standing and denying his motion to remand the case back to state court.

A copy of the ruling in the case of Fleming v. ProVest California et al can be accessed by clicking here.

The plaintiff was sued for an unpaid debt in a California state court. The plaintiff claims that he never received the summons that was allegedly served by the defendant and did not become aware of the suit until he received notice in the mail noting that a judgment had been entered against him.

The plaintiff sued the defendant in state court, alleging it violated the FDCPA. The defendant had the case removed to federal court, which the plaintiff fought by filing a motion to remand it back to state court. The plaintiff claimed that the violation of the FDCPA by the defendant was only a “bare procedural” one and that he did not suffer a concrete injury, as far as Article III is concerned.

Noting that Congress enacted the FDCPA to eliminate abusive debt collection practices, the defendant argued that the plaintiff suffered a concrete injury because the collection practices referenced by Congress include litigation activities. The plaintiff claimed that the defendant engaged in “sewer service,” which occurs when a process server claims to have served a summons or complaint to an individual, but instead chose to throw the summons or complaint in the garbage (or down the sewer). As Judge Lucy H. K of the District Court for the Northern District of California notes in her ruling, a number of courts have determined that sewer service constitutes an abusive collection practice under the FDCPA.

“Specifically, the fraudulent proof of service in the state debt collection action led to a pending default judgment against Plaintiff and Plaintiff’s related legal costs,” Judge Koh wrote. “Courts have held that legal costs spent defending debt collection actions qualify as more than the mere risk of harm.”

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