The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANGELA BARNES, ) CASE NO. 1:19CV1483
)
Plaintiff, ) SENIOR JUDGE
) CHRISTOPHER A. BOYKO
vs. )
) OPINION AND ORDER
MIDLAND CREDIT MANAGEMENT, )
)
Defendant. )
CHRISTOPHER A. BOYKO, SR. J.:
This matter comes before the Court upon the Motion (ECF DKT #31) of Defendant
Midland Credit Management, Inc. for Summary Judgment. For the following reasons, the
Motion is granted.
I. FACTUAL BACKGROUND
On June 27, 2019, Plaintiff Angela Barnes filed the instant Complaint on behalf of
herself and all similarly situated consumers for alleged violations of the Fair Debt Collection
Practices Act (“FDCPA”). Plaintiff alleges that Defendant Midland Credit Management, Inc.
sent out misleading and deceptive letters in an attempt to collect time-barred consumer debts.
This putative class action is based on Defendant’s June 5, 2019 form collection letter
to Plaintiff (the “Letter”). Plaintiff alleges that Defendant’s Letter sought to collect a debt
from Plaintiff after the statute of limitations to sue on that debt had already expired. The
Letter offered Plaintiff several different “discount” proposals, including proposals requiring
that Plaintiff make multiple payments towards the debt. Further, the Letter recited:
“Because of the age of your debt, we will not sue you for it. If you do not pay the debt, we
may continue to report it to the credit reporting agencies as unpaid.” The Letter did not,
however, advise Plaintiff that if she agreed to one of the settlement proposals, she would
remove the statute of limitations bar preventing Defendant from suing her to collect the debt.
In addition, Defendant failed to warn Plaintiff that if she agreed to a partial payment then
Defendant could sue her for the entire amount. The Complaint alleges that Defendant misled
Plaintiff regarding the character and legal status of the debt. Defendant purportedly sent
nearly identical letters to members of the putative class.
Defendant moves for summary judgment, arguing that Plaintiff has not suffered an
actual injury sufficient to confer standing for her lawsuit and that the language in Defendant’s
collection letter, as a matter of law, does not violate the FDCPA.
Plaintiff opposes Defendant’s Motion, contending that Defendant framed its dunning
letters on time-barred debts as providing benefits and discounts to consumers while
concealing the pitfalls of these purported benefits. Moreover, Plaintiff’s receipt of
Defendant’s misleading Letter is sufficient on its own to confer standing without the need to
show any additional harm. Nevertheless, Plaintiff was harmed, misled and confused by the
Letter; and thus, has standing to pursue her FDCPA claim.
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II. LAW AND ANALYSIS
Standard of Review
Summary judgment shall be granted only if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” See Fed.R.Civ.P. 56(a). The burden is on the moving party to conclusively show no
genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Lansing Dairy. Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). The moving party must
either point to “particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials” or show “that the materials cited do not establish
the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” See Fed.R.Civ.P. 56(c)(1)(A), (B). A court
considering a motion for summary judgment must view the facts and all inferences in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). Once the movant presents evidence to meet its burden, the
nonmoving party may not rest on its pleadings, but must come forward with some significant
probative evidence to support its claim. Celotex, 477 U.S. at 324; Lansing Dairy, 39 F.3d at
1347.
This Court does not have the responsibility to search the record sua sponte for genuine
issues of material fact. Betkerur v. Aultman Hospital Ass 'n., 78 F.3d 1079, 1087 (6th Cir.
1996); Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404-06 (6th Cir. 1992). The
burden falls upon the nonmoving party to “designate specific facts or evidence in dispute,”
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); and if the nonmoving party
fails to make the necessary showing on an element upon which it has the burden of proof, the
moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. Whether summary
judgment is appropriate depends upon “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Amway Distributors Benefits Ass 'n v. Northfield Ins. Co., 323
F.3d 386, 390 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 251-52).
Article III Standing
To sue in federal court, a plaintiff must have standing under Article III of the
Constitution, which “limits the judicial power to resolving actual ‘Cases’ and
‘Controversies.’” Buchholz v. Meyer Njus Tanick, PA, 946 F.3d 855, 860 (6th Cir. 2020).
Standing is an “essential and unchanging part of the case-or-controversy requirement
of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A plaintiff must
show three things to demonstrate standing: 1) an injury in fact that is concrete and
particularized, as well as actual or imminent; 2) a causal relationship between the injury and
the complained-of conduct; and 3) a likelihood that the injury can be redressed by a decision
in the plaintiff’s favor. See Vermont Agency of Natural Res. v. United States ex rel. Stevens,
529 U.S. 765, 771 (2000); N.E. Fla. Chapter of the Assoc. Gen. Contractors of Am. v. City of
Jacksonville, Fla., 508 U.S. 656, 663-64 (1993).
For an injury to be particularized, it must “affect the plaintiff in a personal and
individual way.” Spokeo v. Robbins, 136 S.Ct. 1540, 1548 (2016) (quotation marks and
citation omitted). To be concrete, the injury must be real and not abstract. Id. However, the
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injury need not be physical. Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 679 (6th Cir.
1994). Even where the injury is non-physical, though, it must still personally affect the
plaintiff. Valley Forge Christian Coll. v. Americans United for Separation of Church &
State, Inc., 454 U.S. 464, 485 (1982).
The plaintiff bears the burden of alleging sufficient facts to demonstrate standing.
Warth v. Seldin, 422 U.S. 490, 518 (1975). “Threshold individual standing is a prerequisite
for all actions, including class actions.” Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410,
423 (6th Cir. 1998).
Alleging a bare procedural violation of a federal statute is not enough. Spokeo, 136
S.Ct. at 1550. As the Sixth Circuit recently noted:
One might think that a clear statutory directive to open the doors to court
would be enough for standing. Not so. Because standing is a constitutional
requirement, the fact that a statute purports to create a cause of action does not
in isolation create standing. A plaintiff asserting a procedural claim (like an
FDCPA violation) cannot bring a claim unless she has suffered a concrete
injury of some kind. Garland v. Orlans, PC., et al., 999 F.3d 432, 436 (6th
Cir. 2021).
“Article III standing requires a concrete injury even in the context of a statutory
violation.” Spokeo, 136 S.Ct. at 1549. “If a claimant has not suffered a genuine harm or risk
of harm, a federal court has no business entertaining his lawsuit.” Huff v. TeleCheck Services,
Inc., 923 F.3d 458, 465 (6th Cir. 2019).
Fair Debt Collection Practices Act (FDCPA)
The FDCPA was enacted to “eliminate abusive debt collection practices by debt
collectors.” 15 U.S.C. § 1692(e). A debt collector may not use any false, deceptive, or
misleading representation or means in connection with the collection of any debt. Id. This
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provision provides an illustrative (non-exhaustive) list of violations, including prohibiting a
false representation of “the character, amount, or legal status of any debt.” 15 U.S.C.
§ 1692e(2)(A). To violate § 1692e, a statement must be “materially false or misleading, that
is, the statement must be technically false, and one which would tend to mislead or confuse
the reasonable unsophisticated consumer.” Newton v. Portfolio Recovery Assocs., LLC, No.
2:12-CV-698, 2014 WL 340414, at *6 (S.D. Ohio Jan. 30, 2014).
The Sixth Circuit has adopted the “least sophisticated consumer test” to analyze
claims under the FDCPA. See Hartman v. Great Seneca Fin. Corp., 569 F.3d 606, 611–12
(6th Cir. 2009) (quoting Barany-Snyder v. Weiner, 539 F.3d 327, 332–33 (6th Cir. 2008)).
This standard aims to protect “the gullible as well as the shrewd” while still preventing
“liability for bizarre or idiosyncratic interpretations of collection notices by preserving a
quotient of reasonableness and presuming a basic level of understanding and willingness to
read with care.” Hartman, 569 F.3d at 611–12 (quoting Barany-Snyder, 539 F.3d at 332–33).
To show a violation of the FDCPA under 15 U.S.C. § 1692e, a plaintiff must satisfy
the following elements: (1) he is a “consumer” within the meaning of 15 U.S.C. § 1692a(3);
(2) the debt arose “out of transactions which are ‘primarily for personal, family or household
purposes’”; (3) the defendant meets the FDCPA definition of a “debt collector”; and (4) the
defendant violated the prohibitions set forth in 15 U.S.C. § 1692e. See Bauman v. Bank of
America, N.A., 808 F.3d 1097, 1100 (6th Cir. 2015) (quoting Wallace v. Washington Mutual
Bank, F.A., 683 F.3d 323, 326 (6th Cir. 2012)).
The FDCPA does not place “an affirmative duty on a debt collector to disclose to the
consumer the applicability of the statue of limitations.” Newton, No. 2:12-CV-698, 2014 WL
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340414, at *10. The Sixth Circuit has held that there is “nothing wrong with informing
debtors that a debt remains unpaid” even if the debt is time-barred. Buchanan v. Northland
Grp., Inc., 776 F.3d 393, 397 (6th Cir. 2015).
The majority of courts considering the issue “have held that when the expiration of the
statute of limitations does not invalidate a debt, but merely renders it unenforceable, the
FDCPA permits a debt collector to seek voluntary repayment of the time-barred debt so long
as the debt collector does not initiate or threaten legal action in connection with its debt
collection efforts.” Scheiner v. Portfolio Recovery Assocs., LLC, No. CV 12-518-JGW, 2013
WL 12103069, at *7 (S.D. Ohio Nov. 5, 2013) (internal citations omitted).
Plaintiff insists that the receipt of Defendant’s Letter, which omits the potential
consequences of making a payment on an over-age debt, deprived her of the substantive right
to receive truthful non-deceptive information and alone conferred Article III standing to
pursue her claim. Following the guidance of the Supreme Court in Spokeo and the Sixth
Circuit in Garland, the Court is not persuaded that a bare procedural violation of a federal
statute is enough. The question before the Court, then, is whether Defendant’s claimed
violation of 15 U.S.C. § 1692e resulted in harm to Plaintiff which is sufficiently concrete for
Article III standing purposes.
In her Deposition (ECF DKT #30), Plaintiff testified about the June 5, 2019 Letter
from Defendant. Her reaction was that she was “irritated.” (ECF DKT #30 at 34; 59). She
felt that she was being “hustled.” (ECF DKT #30 at 49; 59). She was “concerned” whether
she owed the debt and whether Defendant thought she was stupid. (ECF DKT #30 at 52).
Plaintiff was “annoyed” that the Letter congratulated her and invited her to “restart the
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[statute of limitations] clock.” (ECF DKT #30 at 54). She did not believe what the Letter
said since the terms could change if the debt were sold. (ECF DKT #30 at 56). Had she not
known to ask questions and had she not known the law, Defendant’s conduct “would have
harmed her,” “harmed her credit” and “gotten her sued.” (ECF DKT #30 at 36). Plaintiff
knew for a long time that starting payments on an old debt can “restart the clock” for
reporting the debt and for being sued. (ECF DKT #30 at 48-49). The Letter seemed
“wonky.” (ECF DKT #30 at 67). Plaintiff was “irritated” that she had become a “target,”
particularly as a woman of color. (ECF DKT #30 at 69).
As for the closing statement in the Letter that due to the age of the debt Midland
would not sue, Plaintiff testified that it “produces fear and anxiety.” (ECF DKT #30 at 58).
However, not for her because she understands the law; but for others who do not. (Id.). To
Plaintiff, it is “open knowledge,” but not to the masses like her parents. (ECF DKT #30 at
48). Plaintiff wondered how older people like her parents would be affected if they believed
the “copy” in this Letter. (Id.). Plaintiff believes she is speaking on behalf of those who did
not know they could be impacted negatively. According to Plaintiff, the Midland Letter is
misleading and intended to produce anxiety and spread misinformation. (ECF DKT #30 at
74).
The Court finds that irritation, concern, feeling targeted or hustled are generalized
emotional harms that do not create standing. Bare allegations of confusion and anxiety do not
qualify as injuries in fact. Garland, 999 F.3d at 440. “Article III standing requires a concrete
injury even in the context of a statutory violation.” Thole v. U.S. Bank N.A., 140 S. Ct. 1615,
1620–21 (2020) (quoting Spokeo, 136 S.Ct. at 1549); see also Hagy v. Demers & Adams, 882
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F.3d 616, 623 (6th Cir. 2018) (“That’s just what we take Spokeo to mean when it said that
‘Congress cannot erase Article III’s standing requirement.’” (quoting Spokeo, 136 S. Ct. at
1547–48)). Moreover, confusion, fear and anxiety hypothetically produced in third persons
are not the particularized, personal injuries required under Article III.
Since Spokeo, a plaintiff claiming a statutory violation must do more and must show a
material risk of real harm to a concrete interest, not merely a “marginal increase” in the risk
of harm. McCloud v. Save-A-Lot Knoxville, LLC, 388 F.Supp.3d 954, 968 (E.D.Tenn. 2019).
(Emphasis added).
Plaintiff asserts that Defendant violated the FDCPA because the Letter poses a
material risk of harm. Plaintiff contends that Midland’s policy of refraining from filing suit
on an over-age debt could change at any time or could change with the sale of the debt to
another collection agency. Defendant’s representative, Bernadette Canez, testified that
Midland’s policy could conceivably change but only on a “go-forward basis.” (ECF DKT
#33-4 at 6-8). “Even if the policy changed, we would not go backwards for Ms. Barnes or
any other consumer that had already received that treatment and change the treatment. It
would be for anybody on a go-forward basis as of the date of the change.” (Id.). Ms. Canez
agreed, hypothetically, that another entity purchasing debts from Defendant could alter the
policy and sue on debts outside the statute of limitations; but she would have no direct
knowledge of that. (ECF DKT #33-4 at 8).
Plaintiff did not accept any of the “discount proposals” in Defendant’s Letter and did
not make any payments. After June 2019, Plaintiff received no further written or telephonic
communications from Defendant. The debt is no longer on her credit report. (ECF DKT #30
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at 71-72). The Letter did not threaten suit; in fact, it clearly stated that Defendant would not
sue Plaintiff because of the age of the debt. Whether or not Defendant or another collection
agency would change that policy in the future is speculative at best. If Plaintiff is claiming a
statutory violation, she must do more. She must show a material risk of real harm to a
concrete interest, not simply a hypothetical “marginal increase” in the risk of harm.
McCloud, 388 F.Supp.3d at 968.
Plaintiff Angela Barnes has not suffered any actual or imminent injury nor concrete
and particularized harm or material risk of harm as the result of the June 5, 2019 Letter.
Plaintiff lacks Article III standing to pursue her FDCPA lawsuit against Defendant Midland
Credit Management, Inc. both on her own behalf and as a representative of a putative class.
III. CONCLUSION
For these reasons, the Motion (ECF DKT #31) of Defendant Midland Credit
Management, Inc. for Summary Judgment is granted.
IT IS SO ORDERED.
DATE: July 12, 2021
s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
Senior United States District Judge
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