United States Court of Appeals

For the First Circuit

No. 12-2169

JENNIFER SMITH,

Plaintiff, Appellant,

v.

SOLOMON & SOLOMON, P.C.; 

JULIE B. SOLOMON,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert B. Collings, U.S. Magistrate Judge]

Before

Thompson, Circuit Judge,

Souter, Associate Justice, *

and Stahl, Circuit Judge.

Roger Stanford and Stanford & Schall on brief for appellant.

Julie B. Solomon and Solomon & Solomon, P.C. on brief for

appellees.

April 24, 2013

Hon. David H. Souter, Associate Justice (Ret.) of the *

Supreme Court of the United States, sitting by designation.
STAHL, Circuit Judge. This case requires us to decide

whether the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.

§ 1692 et seq., controls the choice of venue in a post-judgment

enforcement action to recover a debt under Massachusetts trustee

process law. We conclude that it does not.

The facts of this case are neither complex nor contested.

The plaintiff-appellant is Jennifer Smith, formerly known as

Jennifer Gonsalves, who was, at all relevant times, a resident of

New Bedford, Massachusetts and an employee of the U.S. Department

of the Interior. The defendants-appellees are Solomon & Solomon,

P.C., a law firm that specializes in debt collection, and Julie B.

Solomon, an attorney who serves as a director at the firm.

In May 2010, the New Bedford District Court entered a

default judgment against Smith in a suit filed by Solomon & Solomon

to recover a consumer debt. In March 2011, Solomon & Solomon then

brought a second suit in the Attleboro District Court, seeking to

collect on the 2010 default judgment by attaching Smith's wages

from the Department of the Interior, via trustee process. North

Attleboro is one of the locations in which the Department of the

Interior maintains a usual place of business.

In February 2012, Smith filed the present action to

recover damages, alleging that the defendants-appellees violated

the FDCPA venue provision, 15 U.S.C. § 1692i(a), when they brought

the 2011 Attleboro suit in a district other than the one in which

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she resides or signed the underlying contract, see id. § 1692k

(FDCPA civil liability provision); Fox v. Citicorp Credit Services,

Inc., 15 F.3d 1507, 1511 (9th Cir. 1994) ("The parties agree that

a violation of the venue provision may support civil liability.");

Pickens v. Collection Services of Athens, Inc., 165 F. Supp. 2d

1376, 1379 (M.D. Ga.), aff'd, 273 F.3d 1121 (11th Cir. 2001)

(Table) ("Violation of the venue provision is sufficient to

establish liability."). The defendants-appellees moved to dismiss,

see Fed. R. Civ. P. 12(b)(6), and requested fees and costs, arguing

that Smith's claim was baseless in that it ignored Massachusetts

trustee process law. Although the district court granted the

motion to dismiss, it denied the request for fees. Smith v.

Solomon & Solomon, P.C., 887 F. Supp. 2d 334 (D. Mass. 2012). This

appeal followed; our review is de novo. See Pruell v. Caritas

Christi, 645 F.3d 81, 83 (1st Cir. 2011).

In Massachusetts, a plaintiff cannot attach a debtor's

wages or salary "except on a claim that has first been reduced to

judgment or otherwise authorized by law." Mass. R. Civ. P. 4.2(a). 

The defendants-appellees reduced their claim to judgment through

the initial New Bedford District Court action, and Smith concedes

that venue was proper in that suit. Thus, this case, unlike

Harrington v. CACV of Colo., LLC, 508 F. Supp. 2d 128, 131, 133-34

(D. Mass. 2007), concerns the question of what venue is proper in

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a post-judgment enforcement proceeding, not an initial collections

action. 

The FDCPA venue provision requires "[a]ny debt collector

who brings any legal action on a debt against any consumer" to do

so "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(a). The parties agree that the defendants-appellees

qualify as debt collectors, that the 2011 trustee process suit was

a "legal action on a debt" within the meaning of the FDCPA, that it

was not filed in a judicial district in which Smith "signed the

contract sued upon" or in which she resided, and that the FDCPA

venue provision applies only to legal actions brought "against any

consumer." Id. What they vigorously dispute is whether a postjudgment enforcement proceeding -- here, under Massachusetts

trustee process law -- qualifies as a legal action "against any

consumer." Id. The text of the FDCPA provides no definition of

that phrase and thus no guidance on the issue. See id.

As far as we are aware, only one circuit court has

reviewed the exact question before us. In Pickens, 273 F.3d 1121,

the Eleventh Circuit affirmed a district court's conclusion that a

garnishment action under Georgia law is not against the consumer

within the meaning of the FDCPA, 165 F. Supp. 2d at 1380-81. The

district court relied on the fact that the Georgia statutory scheme

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described a garnishment proceeding as an action between the

judgment creditor and the garnishee and required venue to be based

on the garnishee's place of business, id. at 1380, and on the fact

that the judgment debtor had already had a chance to defend against

the original debt action, id. at 1381.1

Smith points to Fox, in which the Ninth Circuit concluded

generally that "[t]he plain meaning of the term 'legal action'" in

the FDCPA venue provision "encompasses all judicial proceedings,

including those in enforcement of a previously-adjudicated right." 

15 F.3d at 1515; see also Flores v. Quick Collect, Inc., No.

06-1564-AA, 2007 WL 2769003, at *3 (D. Or. Sept. 18, 2007)

(following Fox). However, Fox did not address the "against any

consumer" language in the FDCPA, nor was the court apparently asked

to decide whether the garnishment process under the applicable

state law fell within that definition. Our task today is to

consider those issues. 

Trustee process in Massachusetts is governed by Chapter

246 of the Massachusetts General Laws and Massachusetts Rule of

Civil Procedure 4.2. We agree with the district court that the

At least two district courts, in addition to the one below 1

and the one in Pickens, have also weighed in on the issue. Compare

Schuback v. Law Offices of Phillip S. Van Embden, P.C., No.

1:12–CV–320, 2013 WL 432641, at *2-6 (M.D. Pa. Feb. 1, 2013)

(holding that a writ of execution under New Jersey law is not an

action against the consumer), with Adkins v. Weltman, Weinberg &

Reis Co., L.P.A., No. 2:11–cv–00619, 2012 WL 604249, at *4-7 (S.D.

Ohio Feb. 24, 2012) (holding that a garnishment proceeding is an

action against the consumer). 

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state statute and rule define trustee process as "a legal action

directed against the third-party trustee, not the consumer." 

Smith, 887 F. Supp. 2d at 338. We see no need to rehash the

district court's thorough and persuasive opinion and will therefore

keep our explanation brief.

Once the defendants-appellees obtained the default

judgment against Smith, the Massachusetts trustee process scheme

required them to file their subsequent suit to collect on the

judgment in a county in which the trustee (here, the Department of

the Interior) resides or has a usual place of business. See Mass.

Gen. Laws ch. 246, § 4 (mandating that "[n]o person shall be held

to answer as a trustee in an action in a district court . . . in

any county other than that where he dwells or has a usual place of

business"). Smith, the defendant debtor, could then move for a

change of venue, see id. § 4A, but the fact that a trustee process

action in Massachusetts can only be initiated in the venue in which

the trustee is located indicates that the action is directed

against the trustee, not the debtor.

The specific procedures for seeking trustee process laid

out in Rule 4.2 provide further support for that proposition. The

summons must be directed to the trustee, who is the party required

to answer. See Mass. R. Civ. P. 4.2(b). The defendant debtor can

appear to be heard on the motion for approval of attachment but

does not thereby submit herself to the court's jurisdiction. See

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Mass. R. Civ. P. 4.2(c). There is no doubt that the debtor has an 2

interest in the proceeding; she must be given notice of the hearing

and an opportunity to contest the attachment. See id. 

Fundamentally, however, a Massachusetts trustee process action is

geared toward compelling the trustee to act, not the debtor. See

Smith, 887 F. Supp. 2d at 340.3

We find no conflict between that state statutory scheme

and the FDCPA. The Congressional concern underlying the FDCPA

venue provision was that a debt collector would file in an

inconvenient forum, obtain a default judgment, and thereby deny the

consumer an opportunity to defend herself. See S. Rep. No. 95–382,

at 5 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1699. That

concern is not present in the case of a post-judgment enforcement

proceeding under Massachusetts trustee process law. The original

suit to collect on the debt occurred in a forum that was convenient

for Smith, and she had an opportunity to defend against it. She

was not, in the words of Congress, "denied [her] day in court." 

Id.

An order approving trustee process can also be entered ex 2

parte, without prior notice to the debtor. See Mass. R. Civ. P.

4.2(g). The debtor has a right to appear and challenge an ex parte

order, but again "without thereby submitting his person to the

jurisdiction of the court." Mass. R. Civ. P. 4.2(h). 

We agree with the district court that the fact that the 3

complaint in this case named Smith as the defendant was merely a

"procedural convention." Smith, 887 F. Supp. 2d at 338. 

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The Federal Trade Commission (FTC) seems to agree that

the FDCPA venue provision does not control in a post-judgment

enforcement proceeding like the one at issue here. The FTC's

commentary to the FDCPA provides that, "[i]f a judgment is obtained

in a forum that satisfies the requirements of [15 U.S.C. § 1692i],

it may be enforced in another jurisdiction, because the consumer

previously has had the opportunity to defend the original action in

a convenient forum." Statements of General Policy or

Interpretation Staff Commentary On the Fair Debt Collection

Practices Act, 53 Fed. Reg. 50,097, 50,109 (Dec. 13, 1988). The

commentary is not entitled to Chevron deference, see id. at 50,101;

Gulley v. Markoff & Krasny, 664 F.3d 1073, 1074-75 (7th Cir. 2011);

Brown v. Card Serv. Ctr., 464 F.3d 450, 455 (3d Cir. 2006), but it

lends further support to our conclusion today.

Smith relies heavily on the Ninth Circuit's contrary

decision in Fox, 15 F.3d 1507, and on Adkins v. Weltman, Weinberg

& Reis Co., L.P.A., No. 2:11–cv–00619, 2012 WL 604249 (S.D. Ohio

Feb. 24, 2012). We find those cases unpersuasive. Fox did not

consider the "against any consumer" language in the FDCPA venue

provision at all, and Adkins considered it in the context of an

entirely different state statutory scheme. See Smith, 887 F. Supp.

2d at 339. Furthermore, if we were to interpret the FDCPA venue 4

Although the Adkins court did not explicitly rely on the 4

text of the relevant Ohio garnishment statute in reaching its

conclusion, see 2012 WL 604249, at *6-7, the statute defined

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provision as Fox and Adkins do, it would be impossible for a debt

collector to enforce a prior judgment through trustee process in

Massachusetts unless the judgment debtor happened to reside or to

have signed the underlying contract in the same county in which the

trustee had a usual place of business. See Smith, 887 F. Supp. 2d

at 340. We do not read the FDCPA as mandating such a strange

result.

We turn, finally, to the defendants-appellees' request

for fees. They did not appeal the district court's denial of fees

below but have requested fees on appeal, claiming that Smith's

appeal was frivolous. "An application for an award of fees on

appeal should be filed as a separate motion within 30 days of the

entry of final judgment in this court." Spooner v. EEN, Inc., 644

F.3d 62, 71 n.6 (1st Cir. 2011); see also 1st Cir. R. 39.1. Should

the defendants-appellees wish to pursue their fee application

further, they will need to follow the proper procedure. 

The judgment of the district court is affirmed. 

garnishment proceedings as being against the judgment debtor, not

the garnishee, and thus differed significantly from the

Massachusetts trustee process scheme, see Smith, 887 F. Supp. 2d at

339 (citing Ohio Rev. Code Ann. § 2716.03). 

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