Service by Publication violates FDCPA - What is it worth?

Lawsuits and court actions are public information. Some courts require service via publication if the debtor cannot found. So you have no case.

Thank you for your rapid response.

I agree with your statements, however, was the last line of the Service by Publication actually necessary? It is definitely in direct contradiction to the FDCPA which generally requires no third party contact.

I would also think that the State law that allows Service by Publication would be pre-empted by the Federal law of the FDCPA.

More of you knowledgable thoughts, please.

Who is suing? The OC or a junk debt buyer? Id it is the OC, then the FDCPA is not applicable.

The Junk Debt Buyer named Unifund is suing.

This is true! If you company you owe is the one trying to contact you than the FDCPA in not legit! The FDCPA is for THIRD PARTY COLLECTORS. Meaning a debt collector! A debt collector is someone who buys your debt for pennies and then turns around and trys to get even more money back from you then what your debt previously was! Pretty stupid if you ask me. I would never buy someones debt. They can have it! :lol:

The court probably requires them to state their purpose in the publication. If they are following the format outlined in the RCP, then they aren't doing anything wrong.

The complaint they filed with the court also stated why they were suing (to collect on a defaulted credit card), and that complaint become public information once it was filed. Can you sue them because public records state you owe a debt? No.

In order to have a case they would have to actually place an ad other than the public notices section.

What state are you in?

I disagree--they put private, protected information about this person's debt in a public place, meaning that they disclosed it to a third party. With public records, you actually have to know what youre searching for. For example, I could go to my local courthouse and request public records ONLY by identifying the case I want the records for, either by case nuumber, or by identifying the person involved. The court clerk doesnt publish all court records in a free public place for everyone to review at their leisure. In this case, "public records" only means that the public can access those records if they know what to look for--and in order to know that you would already have to know the person's name, dob, etc etc, or a case number.

Plus, many "public records" are not free--there is a charge to obtain them. Not the same as with a $.50 newspaper that just broadcast someone's protected info all over the area. That in itself means that most people wont ever view your "public records" because they dont care enough about someone they never met to incur an expense to read up on your credit card debt. The difference is that a newspaper prints this for all to see, whereas public records have to be actively and properly searched and paid for. Let's keep in mind here that the FDCPA uses the "least sophisticated consumer" measure. Also, just because someone may have followed their state's RCP that doesnt mean that they didnt at the same time violate the federal FDCPA. The two laws are 100% independent of each other, so abiding by one is most definitely not a guarantee that you didnt violate the other. And in a competition between a state and a federal law, which one wins out? Usually it's the federal law that does.

Service by publication is usually only used as a last resort when a debtor is evading summons and cannot be served by traditional means. At least in IL, a plaintiff has to motion the court to allow service by publication; before a judge grants such request, the plaintiff usually has to prove that the debtor is a resident of the state, that the plaintiff has tried to serve the debtor at his usual place of abode and was unsuccessful at least twice.

Now since we like to quote FDPCA, let's see what the FDCPA has to say:

[quote=15 USC 1692c(b)]COMMUNICATION WITH THIRD PARTIES. Except as provided in section 804, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than a consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.[/quote]

If I go into court and motion to allow service by publication, and the court grants me that permission, is that not "express permission of a court of competent jurisdiction" -- which is allowed by the FDCPA ???

exactly

49.011 Service of process by publication; cases in which allowed.--Service of process by publication may be made in any court on any person mentioned in s. 49.021 in any action or proceeding:
(1) To enforce any legal or equitable lien or claim to any title or interest in real or personal property within the jurisdiction of the court or any fund held or debt owing by any party on whom process can be served within this state.
(2) To quiet title or remove any encumbrance, lien, or cloud on the title to any real or personal property within the jurisdiction of the court or any fund held or debt owing by any party on whom process can be served within this state.
(3) To partition real or personal property within the jurisdiction of the court.
(4) For dissolution or annulment of marriage.
(5) For the construction of any will, deed, contract, or other written instrument and for a judicial declaration or enforcement of any legal or equitable right, title, claim, lien, or interest thereunder.
(6) To reestablish a lost instrument or record which has or should have its situs within the jurisdiction of the court.
(7) In which a writ of replevin, garnishment, or attachment has been issued and executed.
(8) In which any other writ or process has been issued and executed which places any property, fund, or debt in the custody of a court.
(9) To revive a judgment by motion or scire facias.
(10) For adoption.
(11) In which personal service of process or notice is not required by the statutes or constitution of this state or by the Constitution of the United States.
(12) In probate or guardianship proceedings in which personal service of process or notice is not required by the statutes or constitution of this state or by the Constitution of the United States.
(13) For termination of parental rights pursuant to part IX of chapter 39.
(14) For temporary custody of a minor child, under ss. 751.01-751.05.
History.--s. 1, ch. 20452, 1941; s. 5, ch. 67-254; s. 15, ch. 71-355; s. 1, ch. 73-5; s. 1, ch. 73-300; s. 13, ch. 84-311; s. 7, ch. 93-104; s. 45, ch. 94-164; s. 14, ch. 98-280; s. 20, ch. 99-2.
Note.--Former s. 48.01.

Okay..... thanks for posting. But keep in mind, these are the laws for a particular state (which isn't listed). Rules of Civil Procedure vary by state.

In my state, you cant sue by publication. Suing by publication is a joke. It violates the whole "due process" issue. If you are goign to sue someone, you have serve them properly.

I bet this works for default judgments. But once the person gets wind of it, its easily reversed in court. Then, you get to sue for damages!!!

Keep in mind, that the person suing has to have a valid claim!! When you are talking about unsecured debt especially, they have to PROVE their invalid CLAIM!!!