Recent Developments on Article III Standing Under the Fair Debt Collection Practices Act

Introduction

This survey examines recent cases addressing whether plaintiffs asserting Fair Debt Collection Practices Act (“FDCPA”) claims have standing under Article III to proceed in federal court following the U.S. Supreme Court’s decision in TransUnion LLC v. Ramirez in 2021, which built upon the Court’s decision five years earlier in Spokeo, Inc. v. Robins. Since TransUnion, defendants have been increasingly successful when challenging FDCPA plaintiffs’ standing to sue in federal court. Not all circuit courts of appeal have weighed in yet, but among those that have, they generally have not hesitated to find standing wanting. District courts across the country, meanwhile, are somewhat less quick to dispose of cases for lack of standing, although many have done so.

In Spokeo, the Court confirmed that to satisfy the “injury-in-fact” component of Article III, federal court plaintiffs must prove that they “suffered an invasion of a legally protected interest that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” A “particularized” injury “affect[s] the plaintiff in a personal and individual way,” whereas a “concrete” injury is “‘real,’ and not ‘abstract.’” A “‘concrete’ injury . . . must actually exist. . . . Concreteness, therefore, is quite different from particularization.”

Spokeo grappled with whether an “intangible” harm could be an injury in fact, and explained that in answering that question in any given case, “both history and the judgment of Congress play important roles.” As to history, “it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” The judgment of Congress, meanwhile, was “also instructive and important” given that “Congress is well positioned to identify intangible harms that meet minimum Article III requirements.” The Court recognized that “intangible” injuries could sometimes be concrete, but stressed that just because Congress identified and elevated “intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize the person to sue to vindicate that right.”

In TransUnion, the Supreme Court picked up where it left off in Spokeo, focusing on whether an intangible harm could be concrete for purposes of Article III. It confirmed that concrete injuries include “traditional tangible harms, such as physical harms and monetary harms,” and that certain “intangible harms can also be concrete.” “Chief among” cognizable intangible harms “are injuries with a close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts. . . . Those include, for example, reputational harms, disclosure of private information, and intrusion upon seclusion,” as well as “harms specified by the Constitution itself.”

TransUnion further confirmed that courts must consider the views of Congress as part of the “concrete” harm analysis. Although the Court acknowledged that “Congress may ‘elevate to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law,’” it stressed that Congress cannot “‘simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is.’”

In other words, although Congress may afford a plaintiff “a cause of action (with statutory damages available) to sue over the defendant’s legal violation,” only one who has “suffered concrete harm” may sue in federal court. In contrast, “[a]n uninjured plaintiff . . . is, by definition, not seeking to remedy any harm to herself but instead is merely seeking to ensure a defendant’s” compliance with the law, which is “not grounds for Article III standing.” Ultimately, even if Congress has created “a statutory prohibition or obligation and a cause of action,” courts must scrutinize the pleadings and evidence and decide whether the plaintiff has suffered concrete harm within the meaning of Article III.

Against this backdrop, the TransUnion Court considered whether members of a certified class of individuals whose credit reports contained incorrect information had suffered a concrete injury simply because Congress had imposed certain statutory obligations requiring credit reporting agencies to use reasonable procedures to ensure accuracy in credit reporting that were not met and created a cause of action under the Fair Credit Reporting Act. As to those class members whose incorrect information was disclosed to third parties, the Court agreed that they had endured a harm bearing “a ‘close relationship’ to a harm traditionally recognized as providing a basis for a lawsuit in American courts—namely, the reputational harm associated with the tort of defamation.” They had therefore suffered a concrete injury.

As to those class members whose information was never disseminated, however, the Court found no standing. The TransUnion Court rejected the notion that “the mere existence” of incorrect information in their credit reports sufficed to establish a concrete injury. It found that an “inaccuracy in an internal credit file” that is not disclosed to a third party

causes no concrete harm. In cases such as these where allegedly inaccurate or misleading information sits in a company database, the plaintiffs’ harm is roughly the same, legally speaking, as if someone wrote a defamatory letter and then stored it in her desk drawer. A letter that is not sent does not harm anyone, no matter how insulting the letter is. So too here.

Perhaps anticipating this result, the plaintiffs argued that they faced a “risk of future harm,” namely, that they had experienced a concrete injury because they were “exposed . . . to a material risk that the [inaccurate] information would be disseminated in the future to third parties and thereby cause them harm.” The Court found the argument wanting, agreeing with TransUnion that “[i]f the risk of future harm does not materialize, then the individual cannot establish a concrete harm sufficient for standing.” Thus, speculative harm will not suffice.

As will be seen below, courts have closely scrutinized plaintiffs’ FDCPA claims since TransUnion to determine whether they have sufficiently demonstrated that alleged intangible harms are supported by history or the judgment of Congress, are not speculative, and have actually materialized such that those plaintiffs have suffered a concrete injury in fact within the meaning of Article III.

First Circuit

As of the date this survey was written, the First Circuit has not addressed Article III standing in the context of the FDCPA. Only one district court in the First Circuit has examined Article III standing since TransUnion was decided. In Espinosa v. Metcalf, a consumer alleged that the defendant violated the FDCPA when it wrongfully repossessed his son’s vehicle to satisfy a judgment against the consumer. In examining the consumer’s FDCPA claims, the court held, with little discussion, that the emotional harm alleged by the consumer because of the seizure of his son’s vehicle satisfied Article III standing.

Second Circuit

In the Second Circuit, Maddox v. Bank of N.Y. Mellon Trust Co. has become the foundation for many Article III standing cases. In Maddox, the plaintiffs alleged that the defendant violated New York’s mortgage satisfaction recording statutes by not timely cancelling their mortgage within thirty days of repayment. The Second Circuit initially affirmed the district court’s denial of the defendant’s motion for judgment on the pleadings, holding that a violation of a statute that was procedural in nature was sufficient to establish standing. On reconsideration, however, the Maddox court determined that the consumers did not suffer a concrete harm, stating “TransUnion established in suits for damages plaintiff cannot establish Article III standing by relying entirely on a statutory violation or risk of future harm: ‘No concrete harm: no standing.’” Because the consumers did not allege actual harm or any intangible harm, the court found that Article III standing did not exist.

Many district courts in the Second Circuit have addressed standing in the FDCPA context. Relying upon Maddox and TransUnion, district courts are examining Article III standing and the majority are finding that standing does not exist. Shortly after TransUnion was decided, a court in the Eastern District of New York issued a decision in In re FDCPA Mailing Vendor Cases that relied upon TransUnion’s narrowing view of Article III standing to dismiss six FDCPA cases based upon the debt collectors’ use of a third-party mail and print vendor. In those cases, the plaintiffs relied on the “mail vendor” theory that arose in Hunstein v. Preferred Collection & Management Services, Inc. whereby a debt collector violates the FDCPA’s prohibition against the communication of debtor information to third parties when it sends the debtor’s information to a third-party print and mail vendor that populates the data fields of a collection letter that is printed and mailed to the consumer. In the Mailing Vendor Cases, the consumers alleged that the debt collector employed an outside firm to print and mail letters to them and, in doing so, violated section 1692c(b) of the FDCPA. Tellingly, the court expressed its frustration with the number of FDCPA cases appearing on its docket before examining the intangible harms alleged by the consumers (the potential for future harm by the potential release of information by the debt collector’s mail vendor):

Legions of FDCPA cases that have little to do with the purposes of the statute have appeared on this Court's docket. “As my colleagues in the Eastern District of New York have observed [in confronting] lawyers [who] have attempted to apply [the FDCPA] in ways Congress never imagined or intended, ‘remedial laws can themselves be abused and perverted into money-making vehicles for individuals and lawyers.’”

The court then noted that “attempts to analogize the harms alleged to a traditional common law tort simply fail.” “[I]t would be difficult to suggest, using the ‘invasion of privacy’ analysis . . . that communication of purported non-payment of a relatively de minimis debt to a mailing vendor constitutes a ‘matter publicized . . . of a kind that . . . would be highly offensive to a reasonable person.’” It found that to the extent that consumers attempted “to characterize the [debt collection] notices as informational violations of the FDCPA, without alleging any harm, such efforts do not confer standing.” Concluding that the consumers had not sufficiently alleged a concrete and particularized injury-in-fact, the court dismissed each action. Subsequently, several other district courts have issued similar decisions in Hunstein copycat cases.

District courts in the Second Circuit have reviewed Article III standing in a variety of other FDCPA settings, finding that allegations of informational injury, the risk of future harm, as well as confusion and emotional distress are not enough to establish an injury-in-fact. When performing an analysis of intangible injuries in cases involving alleged violations of sections 1692e, 1692f, and 1692g(a) of the FDCPA, courts have held that such violations are most analogous to common law misrepresentation and, therefore, to establish injury, the consumer must establish both reliance and action to their detriment. The vast majority of these cases have concluded that no injury-in-fact existed and, thus, that there was no Article III standing. Article III standing, however, has been found to exist if the consumers could establish an actual injury in fact.

Third Circuit

As of the date this survey was written, the Third Circuit had not addressed Article III standing in the context of the FDCPA; however, it is likely to do so soon. District courts in the Third Circuit have taken divergent views of Article III standing. Some have maintained their pre-TransUnion stance that an informational injury is enough to create Article III standing despite the Supreme Court’s holding in TransUnion while others have taken a more restrictive view. In Ozturk v. Amsher Collection Services and Velez-Aguilar v. Sequium Asset Solutions, the courts found that an informational injury was enough to establish Article III standing. In reaching its conclusion that standing existed, the Ozturk court observed that courts in the district “routinely find that alleging that a debt collector has provided (and the debtor has subsequently consumed) false information concerning the collection of a debt is a ‘substantive, and not merely procedural, statutory right under the FDCPA’ that confers Article III standing.” Likewise, on a motion for reconsideration in Huber v. Simon’s Agency, Inc., the court determined that Article III standing existed where the consumer did not pay her bill because she did not know which amount to pay. The court held that the consumer “was not merely confused … she was also unable to take reasonable action with the benefit of accurate information” because of the debt collector’s misleading letter. In both Rodriguez v. Awar Holding, Inc. and Oh v. Collecto, Inc., on the other hand, the courts found that the consumer had not sufficiently alleged Article III standing. Both Rodriguez and Oh involved letters that allegedly contained false representations and violated sections 1692e and 1692f. In both cases, the consumer failed to allege they saw or read the letters at issue. Lack of reliance spelled defeat for those consumers. Other courts have similarly held that confusion is not sufficient to establish a concrete injury.

District courts likewise have diverged in their approach in mail vendor cases brought under section 1692c, with at least one court summarily determining that Article III standing was met and proceeding to the merits of the defendant’s motion for judgment on the pleadings. Courts that performed Article III standing analysis and concluded standing was lacking noted that the harm alleged most closely resembles a cause of action for public disclosure of private facts. Focusing on the disclosure element, courts have noted that the consumers failed to allege that their private facts were made public.

Fourth Circuit

As of the date this survey was written, the Fourth Circuit had not addressed Article III standing in the context of the FDCPA. Cases examining Article III standing in the Fourth Circuit since TransUnion are sparse. Two district courts have used the thinnest of damage allegations to conclude that Article III standing exists. In Westerman v. Constar Financial Services, the court denied a plaintiff's motion to remand where it was alleged that the debt collector violated sections 1692f and 1692g of the FDCPA by making contacts after being notified that the plaintiff was represented by counsel. The court reasoned that incurring attorney’s fees caused a pecuniary harm and, thus, an injury in fact. Similarly, another district court was persuaded that an injury in fact existed where the consumer mailed a dispute to the debt collector and incurred the cost of a stamp.

Other courts have not been so easily swayed. In Blaise v. Receivables Management Services, LLC, for instance, the court concluded that there was no injury-in-fact where allegedly deceptive credit reporting language was included in the validation notice and the consumer argued that he “was at risk of being subject to abusive debt collection practices simply by being deceived into thinking that by disputing the debt, he would forever be free of credit reporting from the debt collector on this particular debt.” For purposes of standing, the court assumed that the consumer had statutory standing, but even so, found that there was no Article III standing because the consumer failed to allege any resulting harm from the letter. While the complaint alleged an informational injury, it was devoid of any allegations regarding how the letter impacted the consumer’s behavior. Thus, the court concluded that a purported statutory violation unaccompanied by actual harm or substantial risk thereof was insufficient for purposes of Article III standing.

Fifth Circuit

In Perez v. McCreary, Veselka, Bragg & Allen, P.C., in an interlocutory appeal following the district court’s order certifying a class, the Fifth Circuit independently raised the question of Article III standing, determined that standing was lacking, vacated the district court’s order, and remanded with instructions to dismiss the case. In Perez, the plaintiff alleged that a form collection letter sent by the defendant failed to inform her that the unpaid utility bill it sought to collect was time-barred under state law. The plaintiff contended that the letter subjected her to three separate injuries: it exposed her to “a significant risk of ” injury because she could have paid a time-barred debt; it “misled and confused her about the enforceability of her debt”; and it forced her to seek legal counsel as to whether the debt was enforceable. On appeal, the plaintiff added a fourth theory, that the letter “was analogous to the tort of intrusion upon seclusion.”

Applying TransUnion, the Fifth Circuit rejected the argument “that the violation of her statutory rights under the FDCPA itself qualifies as a concrete injury.” It also rejected the argument that standing existed because the letter exposed her “to a risk that she might accidentally pay her time-barred debts,” concluding that this was too speculative because it was an unmaterialized risk rather than a concrete injury, and “TransUnion held that merely being subjected to a risk of future harm cannot support a suit for damages.” Joining “several of our sister circuits,” the Perez court found that the plaintiff ’s claim of confusion failed because as an intangible harm, it was not “similar ‘in kind’” to what the analogous common law claim of fraudulent misrepresentation requires, the tangible harm of pecuniary loss. The court was also not persuaded by the argument that plaintiff “wasted” time “consulting with her lawyer” without alleging that she paid anything since she offered no common law tort analogue for mere “lost time” that would “carry her burden to show that a time-based injury could sustain her claims.” On this point, the court held that the plaintiff had not met her burden of pointing to any analogous common-law basis for “the time-based injury she claims to have suffered,” but declined to “conclusively decide whether such injuries are closely related to traditional harms, permitting future parties to develop the question further.”

Finally, the Perez court concluded that, contrary to the holdings of other courts, the plaintiff ’s “receipt of an unwanted letter” was not akin to the tort of intrusion upon seclusion. Furthermore, the court observed that “Congress didn't elevate the receipt of a single, unwanted message to the status of a legally cognizable injury” in section 1692e of the FDCPA, the antifraud provision plaintiff alleged defendant violated, nor did a single letter constitute the type of harassment that is prohibited by section 1692d(5). Consequently, the court held that the plaintiff lacked Article III standing.

Sixth Circuit

Both before and after TransUnion, the Sixth Circuit has not hesitated to conclude that FDCPA plaintiffs lacked Article III standing. One month before TransUnion was decided, the Sixth Circuit held in Garland v. Orlans, PC that a consumer who claimed that he was confused whether a letter sent on law-firm letterhead was from an attorney and was anxious because of the letter lacked standing.

Two months after TransUnion, the Sixth Circuit decided Ward v. National Patient Account Services Solutions. In Ward, the consumer received two similar billing statements and two similar voicemail messages from NPAS, Inc., which had been hired by a medical provider to collect unpaid medical bills for treatment rendered to the consumer. The consumer sent a letter to unrelated entity NPAS Solutions, LLC, directing it to stop communicating with him. The consumer sued, alleging FDCPA violations based on the voicemail messages, claiming the defendant had failed to: identify itself as a debt collector, identify its true name in its messages (which caused him to become confused and send his letter to the wrong entity), and meaningfully identify itself. The district court granted summary judgment for the defendant, holding that it was not a “debt collector” and thus was not subject to the FDCPA.

On appeal, the Sixth Circuit raised the issue of standing sua sponte. The consumer argued first “that the violation of his procedural rights under the FDCPA alone constitutes a concrete injury,” and second, “that the confusion he suffered, the expense of counsel, and the phone call that he received from NPAS, Inc. qualif[ied] as independent concrete injuries.” The court rejected the argument that the defendant’s “failure to disclose its full identity in its voice messages resemble[d] a harm traditionally regarded as providing a basis for a lawsuit,” specifically, invasion of privacy, reasoning that “[f]ailing to receive full and complete information does not closely resemble intrusion upon seclusion.” Because the asserted procedural injuries lacked “a close relationship to traditional harms,” the court concluded that the consumer could not show “standing based upon the statutory violations alone.”

Moving to the consumer’s second argument, the court confirmed its earlier ruling in Garland that “confusion alone is not a concrete injury for Article III purposes.” Next, the court rejected the argument that “the economic expense of retaining counsel” because of the allegedly improper voicemail messages sufficed to establish standing because allowing “any plaintiff who hires counsel to affirmatively pursue a claim would nullify the limits created under Article III. . . . Ward cannot show concrete injury simply by pointing to the cost of hiring counsel.”

Seventh Circuit

Both before and after TransUnion, the Seventh Circuit has also not hesitated to find that FDCPA plaintiffs lack Article III standing in FDCPA cases. Post TransUnion, the Seventh Circuit examined Article III standing as a threshold issue in Wadsworth v. Kross, Lieberman & Stone, reaffirming its prior position on Article III standing. The Wadsworth court confirmed that a mere procedural violation of the FDCPA is not enough to establish standing; allegations of informational injury will not suffice without a proximately caused injury; and mere allegations of emotional distress, confusion, annoyance, and intimidation will not suffice to establish an injury-in-fact.

The Seventh Circuit has likewise held that a risk of future harm will not suffice to create an injury-in-fact in FDCPA cases. In Pierre v. Midland Credit Management, the defendant sent the consumer a letter seeking payment of a debt while disclosing that the debt was time-barred. On appeal, a Seventh Circuit panel vacated the award and remanded with instructions to dismiss for lack of subject matter jurisdiction because it determined, among other things, that “psychological states induced by a debt collector’s letter” are not enough to create Article III standing. The Pierre court took note that prior to TransUnion, “there was a hint that the mere ‘risk of harm’ could concretely injure plaintiffs seeking monetary damages.” The court concluded, however, that TransUnion had clarified that a risk of harm only qualifies as a concrete injury for claims that are forward-looking or involve injunctive relief.

When the Seventh Circuit declined to rehear Pierre en banc, some members of the court questioned whether it had gone too far in finding a lack of concrete injury. In the dissent, four judges raised concerns that the court’s recent opinions had “strayed far from the Supreme Court's more nuanced guidance on the power of Congress to authorize standing for statutory violations,” failed to give the judgment of Congress the due respect that the Supreme Court in Spokeo and TransUnion require, and overlooked close historic parallels in both the common law and constitutional law for remedies for intangible harms.

Eighth Circuit

The Eighth Circuit has issued one opinion addressing Article III standing in an FDCPA action since TransUnion was decided, Ojogwu v. Rodenburg Law Firm. There, a consumer asserted that a law firm violated section 1692c(a)(2) of the FDCPA when it mailed garnishment papers that the firm had served on the consumer’s bank, the garnishee, directly to the consumer instead of to his attorney. The firm argued that state law required it to directly serve the consumer with the garnishment papers. The district court concluded that the state law was preempted by the FDCPA and granted judgment in favor of the consumer.

The Eighth Circuit never reached the merits of the case, concluding that the consumer lacked Article III standing, as he suffered “no tangible injury, such as physical or monetary harm.” The consumer argued he suffered “intangible injury—‘actual damages in the form of fear of answering the telephone, nervousness, restlessness, irritability, amongst other negative emotions,’” but the court was not persuaded, finding that the receipt of the garnishment documents “did not cause [him] to act to his detriment or fail to protect his interests.” Indeed, he “promptly turned the documents over to his attorney.” Notably, the Ojogwu court found that “the direct mailing at issue served the intended purpose of benefitting” the debtor.

Ninth Circuit

The Ninth Circuit has not yet applied TransUnion in a published opinion. In Fleming v. Provest California LLC, a consumer who had been sued by the defendant subsequently filed a lawsuit in state court, alleging that the defendant violated the FDCPA by engaging in “sewer service” when it sued the consumer. On a motion to remand the case to state court after removal to federal court, the plaintiff argued that the defendant committed a “bare procedural violation” of the FDCPA and thus did not allege a concrete harm sufficient to support Article III standing in federal court. Sitting by designation, Ninth Circuit Judge Lucy Koh applied the Ninth Circuit’s “Article III framework, in light of TransUnion” and declined to remand.

Judge Koh observed that, following Spokeo:

[T]he Ninth Circuit outlined a two-part test to determine whether a violation of a statutory right constitutes concrete harm: “(1) whether the statutory provisions at issue were established to protect the plaintiff's concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged in this case actually harm, or present a material risk of harm to, such interests.”

In the case of an alleged intangible harm, the court first examines “history and legislative judgment.” “If the statute codifies a substantive right, then the analysis stops at the first step because every violation of the statute is a concrete harm.” If, however, the statute does not codify a substantive right, then the court “proceeds to step two.”

Judge Koh opined that “TransUnion appears to impact both steps of the Ninth Circuit [concrete harm] framework,” but ultimately did not address TransUnion’s impact and concluded that the consumer had pled a concrete injury and alleged a violation that presented “more than a material risk of harm” sufficient to satisfy TransUnion’s “stricter . . . standing requirements.” As to the first step, the court found no “close relationship between the harm protected by the FDCPA and the harms that traditionally provide a basis for a lawsuit.” Based on a uniform line of authority, though, the court concluded that Congress “sought to protect individuals’ concrete interest in being free from abusive debt collection practices, which includes the practice of sewer service, when passing the FDCPA.”

Next, the court turned to “the Ninth Circuit framework’s step two, in light of TransUnion’s apparent rejection that the mere risk of material harm in a damages suit is insufficient to show a concrete injury in fact,” and considered whether the consumer’s “sewer service allegations present a material risk of harm that has materialized, actually harm [his] interests under the FDCPA, or whether [he] suffered an independent concrete injury flowing from the material risk of harm.” Filing a fraudulent proof of service, the court determined, “presented a material risk” to a consumer’s ability to defend against the collection lawsuit, not to mention an increased risk of entry of a default judgment. Here, that “risk materialized and affected [plaintiff] personally,” by virtue of the fact that he obtained counsel and incurred legal costs when he learned of the default judgment against him. Thus, the consumer met “TransUnion’s more stringent requirement that the risk of harm materialized.” Consequently, the court concluded that the complaint sufficiently alleged a “‘concrete’ injury in fact” under “the Ninth Circuit's two-step framework and TransUnion.”

In less thoroughly reasoned decisions, other district courts within the Ninth Circuit have sometimes found standing wanting and sometimes not. For instance, in Sengel v. Concord Service Corp., the consumers alleged that they were misled and confused by a collection letter sent to them that failed to identify the current creditor, in violation of the FDCPA. The court found that they lacked standing because they “failed to explain how they relied upon the allegedly confusing” letter, “that is, took or forwent action because of the” letter “to their detriment.”

On the other hand, in Moldasheva v. Hunter Warfield, the court held that the consumer had Article III standing to sue under sections 1692c and 1692d of the FDCPA based on receiving excessive phone calls, concluding that the right of privacy had “long been regarded ‘as providing a basis for a lawsuit in English or American courts.’” The court, however, concluded that the consumer lacked standing to sue also under sections 1692e and 1692f based on the calls, concluding that her testimony that she “found them ‘annoying,’ and that she was ‘frustrated,’ ‘unhappy,’ and ‘upset’ when Defendant called” was not sufficient to establish a concrete injury, given that she was never confused by the calls and never detrimentally relied on anything said during the calls.

Tenth Circuit

In Lupia v. Medicredit, Inc., the Tenth Circuit held that a consumer had demonstrated Article III standing based on having received an unwanted telephone call and voicemail message after having sent a written cease-and-desist request to the defendant. Both history and the judgment of Congress led the court to conclude that the consumer had endured a sufficiently concrete intangible harm because of being contacted by the debt collector after it received her cease-and-desist letter.

The Lupia court focused on the historical question, observing that “[a]t common law, courts readily recognized a concrete injury arising from the tort of intrusion upon seclusion,” which TransUnion had cited “as a harm ‘traditionally recognized as providing a basis for [a] lawsuit[] in American courts.’” Explaining that the tort imposed liability on those who hounded someone to pay a debt by, for example, “making repeated telephone calls,” the court determined that the consumer had “suffered a similar harm when [the debt collector] made an unwanted call and left her a voicemail about a debt, despite her having sent written notice disputing the debt and requesting that it cease telephone communications. Thus, Ms. Lupia suffered an injury bearing a “‘close relationship’ to the tort of intrusion upon seclusion.” The court emphasized that there need only be a “close relationship” in kind, not degree, between the alleged harm and harm traditionally or historically recognized as providing a basis for suit. Thus, it was of no consequence that the consumer received only one call following her request to cease communications: “Though a single phone call may not intrude to the degree required at common law, that phone call poses the same kind of harm recognized at common law—an unwanted intrusion into a plaintiff's peace and quiet.”

As for Congress’ judgment, the Lupia court noted that Congress had recognized “abusive debt-collection practices may intrude on another’s privacy interest,” while simultaneously acknowledging that Congress could not automatically create an injury simply by passing a law. Ultimately, the court did not grapple with this question because the consumer’s claims “have roots in long-standing common-law tradition.”

Eleventh Circuit

The Eleventh Circuit reconsidered Article III standing in the context of the FDCPA in its en banc decision in Hunstein v. Preferred Collection & Management Services, Inc. In Hunstein, the consumer alleged that the debt collector’s use of a third-party mail vendor to print and mail letters violated section 1692c(b) of the FDCPA because the consumer’s debt and the underlying debt (his son’s “sensitive medical information”) was transmitted to the mail vendor. The consumer contended that the transmittal of that information violated section 1692c(b) because the mail vendor was not a permissible third party. Focusing on the concreteness requirement and seeking a comparative tort, the Eleventh Circuit compared the harm alleged (a disclosure to a private party) to the tort of public disclosure. In doing so, it read TransUnion as adding to the standing analysis that “when an element ‘essential to liability’ at common law is missing from an alleged harm, the common-law comparator is not closely related to that harm.” The court then noted that the tort of public disclosure requires publicity, which, in turn, requires that a matter be made public. Noting that the element was missing from Hunstein’s claim, the court held that standing did not exist. In doing so, the Eleventh Circuit has signaled a narrow reading of standing which requires an element-by-element comparison to a comparative tort.

Likewise, district courts in the Eleventh Circuit that have considered Article III standing in FDCPA cases have generally take a narrow view of standing. Where there has been a lack of tangible injury, for instance, the courts have analogized certain letter violations to the tort of negligent misrepresentation and found that informational harm cannot exist without related adverse effects.

D.C. Circuit

The D.C. Circuit has not addressed standing in an FDCPA case since its pre-TransUnion opinion in Frank v. Autovest, LLC. In a post-TransUnion district court case, Magruder v. Capital One, N.A., the court issued an order to show cause why a consumer’s action asserting claims under the FDCPA should not be dismissed for lack of Article III standing. The consumer alleged that the defendant’s action “caused [him] to incur economic damages and emotional/mental distress damages, including . . . out-of-pocket expenses, fear, embarrassment, humiliation, frustration, anger, headaches, sleeplessness, and severe emotional and mental distress.” The court spotted two potential problems with the consumer’s allegations:

The first problem is one of fact: Magruder's claims of tangible harm—economic damages, loss of credit, and the like—are largely devoid of supporting factual allegations. The amended complaint does not identify a single expense that Magruder incurred, a single dollar that he lost, or a single credit opportunity that he was denied.

* * *

The second problem is one of law: Magruder's remaining allegations focus on emotional injury, yet free-standing “emotional harm, no matter how deeply felt, cannot suffice for injury-in-fact for standing purposes.”

As to the first problem, the court stated that “Magruder's allegations of tangible injury are thin by any measure—he claims to have suffered economic loss, for instance, but neglects to explain how, when, where, or in what degree.” Nonetheless, the court concluded that “that is (barely) enough” at the pleading stage, relying on Frank.

As to the second problem, the Magruder court determined that the consumer’s allegations of emotional distress, based on allegations that the defendant falsely represented it had obtained a judgment against plaintiff, satisfied the Article III injury-in-fact requirement when considering history and Congress’s judgment. The court observed that “[t]he attendant mental distress that Magruder allegedly suffered was, on this theory of the case, caused by a series of statutory violations at the heart of Congress’s scheme, namely, the prohibition against debt collectors mischaracterizing the ‘legal status of any debt’ and then disseminating false information about that debt.” As to history, the court analogized the plaintiff ’s FDCPA claims to common-law claims for malicious prosecution, abuse of process, and wrongful use of civil actions.

In Benjamin v. Rosenberg & Associates, LLC, the consumer asserted an FDCPA claim arising from a home foreclosure and alleged that the defendant’s FDCPA violations

caused her “to endure damages including out-of-pocket costs, legal fees defending the illegal foreclosure, fear of losing the [p]roperty, worry about where her loved ones will live, anxiety about being kicked out and becoming homeless, very heavy stress, severe headaches and stomach aches, sleepless nights, eating disorders, excessive worry, and other mental and emotional distress.”

The Benjamin court relied on its recent decision in Magruder in concluding that the consumer had standing to pursue her claims based on the defendant’s efforts to collect a debt she maintained that she did not owe. As to two of the consumer’s claims, regarding the allegedly improper use of various names in attempting to collect and improperly communicating directly with her rather than her attorney, the court found that she lacked standing because she failed to show how this caused her any tangible or intangible harm, and because there was no “common law analog for the ‘injury’ [she] allege[d].”

Conclusion

TransUnion has narrowed the access to federal courts in FDCPA litigation even though the statute itself expressly contemplates federal court jurisdiction for all violations of the statute. The developing jurisprudence suggests that, at the outset and at each stage of the litigation, constitutional standing will be scrutinized. As discussed above, litigants can expect Article III standing to be challenged through a variety of procedural vehicles. The impact of this narrowing access is likely to create a flood of state court FDCPA litigation from litigants who are denied access to the federal courts for their claims.