17.5.5.3 Abuse of Process

Abuse of process is often described as the use of “legal process against another in an improper manner to accomplish a purpose for which it was not designed.”²⁰¹ In contrast to malicious prosecution, the tort of abuse of process is not based on the improper institution of legal proceedings but on the improper use of process after it has been issued to accomplish a purpose for which it was not designed.²⁰² While courts vary in their listings of the elements of the tort, one common statement is:

• • The defendant made an illegal, improper, perverted use of the process, a use neither warranted nor authorized by the process;
• • The defendant had an ulterior motive or purpose; and
• • Damage resulted to the plaintiff from the irregularity.²⁰³

Some decisions require actual seizure of property as an element, or that the defendant act willfully, but malice usually is not a required element.²⁰⁴

The New Mexico Supreme Court has found that a claim for abuse of process can be based on actions taken in an arbitration proceeding and need not involve a court case.²⁰⁵ Thus, a collector’s use of arbitration to sue on a debt can involve abuse of process.

Query whether it is abuse of process for a collector to use requests for admissions to trick an unrepresented consumer who is disputing a debt into admitting liability by failing to timely respond to the requests for admissions.²⁰⁶ Courts have found the following to be abuses of process: suing in an improper venue;²⁰⁷ obtaining and executing upon a default judgment after agreeing to dismiss the case;²⁰⁸ falsifying an affidavit of service of process;²⁰⁹ and continuing litigation known to be baseless.²¹⁰