In Massachusetts, a constable is elected or appointed official within a town for serving legal papers.  Oftentimes, the constable is specially appointed by a court to serve outside the usual town.  That’s not enough for protection from violating collection laws.

Federal Magistrate Judith Gail Dein ruled on August 27, 2008 that neither the elected status, nor the court-appointed status, immunized the constable from liability.  A constable was a debt collector, covered by the Fair Debt Collection Practices Act, when it went beyond mere serving, or delivering, a communication.  It could not demand payment of unlawful “poundage” and “constable” fees, or threaten to auction off a car after seizure when it had no intention or authority to do so.

The case is Andrews v. South Coast Legal Services, Inc., 2008 U.S. Dist. LEXIS 69435 (D.Mass. 2008).

Section 303 (Mortgages and Trust Deeds) of the SCRA forbids non-judicial foreclosure on real property owned by a servicemember based on an obligation created before entering active military duty.

If an action in foreclosure is filed during or within 90 days after a servicemember’s period of military service AND the servicemember’s ability to pay the obligation was materially affected by his/her military service, then the court may 1) stay the proceedings for a period of time and/or 2) adjust the obligation to preserve the interests of all the parties (i.e. the mortgage holder and the servicemember).  Any foreclosure sale held during or within 90 days after the servicemember’s military service is NOT valid unless the court has issued an order allowing the foreclosure sale.

It is a criminal offense to knowingly violate this provision of the SCRA.

Section 302 (Protection Under Installment Contracts for Purchase or Lease) of the SCRA forbids self-help repossession if a servicemember made a payment under a purchase contract before entering in to active duty in the military.  Repossession may only be taken with a court order and the SCRA makes it a criminal offense to knowingly repossess property in violation of this rule.  If a court orders the repossession, it may order the creditor to return the servicemember’s payments.  The court may also stay repossession proceedings if it finds that the servicemember’s ability to comply with the contract is materially affected by military service.

This section of the SCRA applies to all contracts for the purchase or lease of real or personal property, including motor vehicles.

The SCRA, Section 201 - Protection of Servicemembers Against Default Judgments, applies to any civil action or proceeding in which the defendant does not make an appearance in the case.  Section 201 of the SCRA requires a plaintiff to file an affidavit with the court before entering judgment against the defendant.  This affidavit must state that either 1) the defendant is not in military service, 2) the defendant is in military service, or 3) the plaintiff cannot determine whether the defendant is in military service.

If the defendant in the action appears to be in military service, the court may not enter a judgment against that defendant unless the court appoints an attorney to represent the defendant.  The SCRA provides special rules for stays of the civil proceedings for a minimum period of 90 days if the court determines that 1) there may be a defense to the action and a defense cannot be presented without the presence of the defendant or 2) after due diligence, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists.

If it cannot be determined whether the defendant is in military service, the court, before entering judgment, may require the plaintiff to post a bond in an amount approved by the court.  If it is later found that the defendant was in military service, the bond is used to indemnify the defendant against any loss or damage that the defendant may have suffered as a result of the default judgment being entered.

The state attorney general may pursue the debt collector but this may be a case that falls under Section 1692d of the Fair Debt Collection Practices Act.  Section 1692d states “A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.”  Arguably this individual/company owner falls in to the definition of any person.  The protections of Section 1692d are not limited to consumer or debt.  They are open to any person and that may include employers, creditors, relatives, friends, and neighbors affected by violations connected with consumer transactions.