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13.3.8.5 Application of the FDCPA’s Venue Abuse Prohibition

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13.3.8.5 Application of the FDCPA’s Venue Abuse Prohibition

The Fair Debt Collection Practices Act (FDCPA) may provide a remedy in some cases in which a creditor files a garnishment action in a judicial district other than where the consumer resides or entered into the contract. The FDCPA provides that, in the case of an action that does not involve enforcing a security interest in real property, “[a]ny debt collector who brings any legal action on a debt against any consumer shall . . . bring such action only in the judicial district or similar legal entity—(A) in which such consumer signed the contract sued upon; or (B) in which such consumer resides at the commencement of the action.”177

The Ninth Circuit allowed a consumer to go to trial on a claim that collectors violated this prohibition by obtaining a wage garnishment order in an improper county.178 The collector had originally brought suit on the debt against the debtor in Maricopa County, Arizona, which was not the proper venue under state law. The suit was transferred to the debtor’s county of residence, Pima County, and then dismissed. The creditor then sued the debtor again in Maricopa County, the case was transferred again to Pima County, and the consumer agreed to a judgment. Then the collector filed an application for a writ of garnishment against the consumer—again in Maricopa County. The Ninth Circuit held that the garnishment action was a “legal action,” so was subject to the FDCPA’s venue abuse provision.

A First Circuit decision takes a different view.179 In that case, the creditor obtained a judgment against a New Bedford consumer in a New Bedford court. However, the consumer’s employer was located in the Attleboro judicial district, and Massachusetts law required the judgment creditor to obtain a wage garnishment in the district where the debtor’s employer was located. The court held that such an action was an action against the employer, not a legal action against the consumer, so the FDCPA’s venue abuse provisions were inapplicable. The court distinguished states that do not require applications for wage garnishment to be filed in the employer’s venue. The application of the FDCPA’s venue abuse provision to garnishment is discussed in more detail in NCLC’s Fair Debt Collection.180

Footnotes

  • 177 15 U.S.C. § 1692i.

  • 178 Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507 (9th Cir. 1994). See also Adkins v. Weltman, Weinberg & Reis Co., L.P.A., 2012 WL 604249 (S.D. Ohio Feb. 24, 2012) (garnishment action directed to debtor’s employer is an action “against” debtor, within meaning of FDCPA; FDCPA venue provision applies to postjudgment enforcement actions, including garnishment action here).

  • 179 Smith v. Solomon & Solomon, P.C., 714 F.3d 73 (1st Cir. 2013). Accord Hageman v. Barton, 817 F.3d 618 (8th Cir. 2016) (Illinois wage garnishment is not an action “against any consumer,” but compels only the debtor’s employer to take action, so commencement of garnishment proceeding in county where debtor neither lived nor worked—and which had no relationship to underlying debt—does not violate FDCPA’s venue provision); Ray v. McCullough Payne & Haan, L.L.C., 838 F.3d 1107 (11th Cir. 2016) (Georgia bank account garnishment is a proceeding against the garnishee bank, not against the debtor, so filing of garnishment action in bank’s county, as required by Georgia law, rather than in county where debtor resided, does not violate FDCPA’s venue provision); Jackson v. Blitt & Gaines, P.C., 833 F.3d 860 (7th Cir. 2016) (Illinois wage garnishment action is not an action against consumer covered by venue provisions of FDCPA; it is an action against employer that must be filed in district where employer resides); Randall v. Maxwell & Morgan, P.C., 321 F. Supp. 3d 978 (D. Ariz. 2018); Fish v. Stone, Higgs & Drexler, P.C., 2017 WL 6757575, at *7–9 (W.D. Tenn. Dec. 29, 2017) (Tennessee wage garnishment action is not an action “against any consumer”); Turnbull v. O’Reilly Rancilio, P.C., 2017 WL 4572334 (E.D. Mich. Oct. 13, 2017) (wage garnishment is not an action against a consumer, so venue provisions of FDCPA do not apply).

  • 180 National Consumer Law Center, Fair Debt Collection § 10.3.2 (9th ed. 2018), updated at www.nclc.org/library.