District Court (Oh.) Rejects FTC Intepretation of the FDCPA; Holds that Garnishment of Wages is Subject to FDCPA Venue Provisions

In Adkins v. Weltman, Weinberg & Reis Co., L.P.A., 2012 WL 604249 (S.D.Ohio 2012), the District Court decided not to follow the FTC interpretation of the FDCPA, and found that garnishment of wages was an ‘action’ subject to the FDCPA venue provisions. 

Section 1692i of title 15 of the United States Code provides in pertinent part: (a) Venue– Any debt collector who brings any legal action on a debt against any consumer shall—(2) … 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. 15 U.S.C. § 1692i. Here, the parties dispute whether the language of the statute stating “any legal action on a debt against a consumer” encompasses a garnishment proceeding attaching plaintiff’s earnings. The Sixth Circuit has not had occasion to rule on the matter, and  the parties rely on competing caselaw, which is not binding on this Court. In Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507 (9th Cir.1994), the court held that an application for a writ of garnishment falls within the venue provision… Defendant, on the other hand, relies on Pickens v. Collection Services of Athens, Inc., 165 F.Supp.2d 1376 (2001), which held a garnishment action is not subject to the venue provision of the FDCPA. . . . The FTC considered the venue provision and commented that “[i]f a judgment is obtained in a forum that satisfies the requirements of the section, it may be enforced in another jurisdiction, because the consumer previously has had the opportunity to defend the original action in a convenient forum.” 53 Fed.Reg. 50,097, 50,109 (1988). Although the FTC commentary is non-binding, the Eleventh Circuit has noted that in interpreting the FDCPA, the commentary should be given considerable weight. See Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1372, n. 2 (11th Cir.) (1998) (citing Chevron, U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and remarking that because the FTC is responsible for administering the FDCPA, “its interpretation should be accorded considerable weight”). Pickens v. Collection Services of Athens, Inc., 165 F.Supp.2d 1376, 1380–1381 (M.D.Ga., 2001).  The Due Process Clause of the Fourteenth Amendment to the Constitution of the United States recognizes that obvious fact by requiring the judgment creditor to give notice to the judgment debtor of the garnishment and requiring the issuing court to afford the judgment debtor an opportunity to contest the garnishment. Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).  ¶  I recognize that my conclusion is contrary to the Federal Trade Commission’s commentary regarding actions to satisfy consumer debts reduced to judgment:  If a judgment is obtained in a forum that satisfies the requirements of this section, it may be enforced in another jurisdiction, because the consumer previously has had the opportunity to defend the original action in a convenient forum. 53 Fed.Reg. 50109. While this may be sound public policy, it is contrary to the plain meaning of the statute. Defendant’s motion to dismiss plaintiff’s claim based on a violation of the venue requirements of 15 U.S.C. § 1692i is DENIED.