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Defendant’s Wrongful Use of Process

It is a tort to use the civil or criminal form of process to primarily seek a result other than that for which the form of process was intended. The conduct that encompasses the abuse of process is a defendant’s wrongful use of the process for an ulterior purpose and some willful act in the use of the process to accomplish that ulterior purpose.

For example, if a defendant obtains a judgment against a plaintiff for a debt, and the plaintiff subsequently pays the debt, the defendant is liable for abuse of process if he takes out an execution on the judgment.

Abuse of process does not involve the wrongful bringing of a suit, which is the tort of malicious prosecution. Rather, it involves the improper use of the process after the suit has properly begun. Abuse of process also does not cover situations in which a defendant has an incidental motive of spite or an ulterior purpose to bringing the action if the action is brought primarily for the purpose for which the form of process was intended. Thus, a person who prosecutes an accused based on the accused’s unlawful act is not abusing the process merely because he incidentally does not like the accused.

The usual case of abuse of process occurs with relation to extortion, whereby a person uses the process to put pressure upon another to compel him to pay a debt not related to the action.

The defendant will be liable to the plaintiff for any harm caused by the abuse of process.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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