CARTMELL v. CREDIT CONTROL, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

WILLIAM CARTMELL, :

:

Plaintiff, :

:

v. : No. 5:19-cv-1626

:

CREDIT CONTROL, LLC, :

:

Defendant. :

__________________________________________

O P I N I O N

Defendant’s Motion to Dismiss, ECF No. 28—Denied

Joseph F. Leeson, Jr. January 10, 2020

United States District Judge

I. INTRODUCTION

This is an action brought under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692

et seq. (“FDCPA”), in which Plaintiff William Cartmell contends that Defendant Credit Control,

LLC’s attempt to collect a debt violated several provisions of that statute. As with many FDCPA

cases, this case rests on the content of Credit Control’s collection letter (“the Letter”), which

offered Cartmell three “payment options” for repayment of the debt. Significantly, the Letter

failed to notify Cartmell that repayment of any part of the debt—which at the time the Letter was

sent was beyond the statute of limitations and therefore not judicially recoverable—could revive

the debt and subject him to liability. Cartmell contends this omission constituted a violation of

the FDCPA’s prohibition on unfair and deceptive debt-collection practices.

There are currently four motions pending before the Court, each with opposition: Credit

Control’s motion to dismiss the Amended Complaint for lack of subject matter jurisdiction based

on Cartmell’s failure to establish standing, Cartmell’s motion for class certification, and both

parties’ cross-motions for summary judgment. Because “[t]he requirement that jurisdiction be

established [is] a threshold matter” that “‘spring[s] from the nature and limits of the judicial

power of the United States’ and is ‘inflexible and without exception,’” Steel Co. v. Citizens for a

Better Env't, 523 U.S. 83, 94-95 (1998) (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S.

379, 382 (1884)), Credit Control’s motion to dismiss for lack of jurisdiction must be resolved

before the motions for either class certification or summary judgment can be addressed.1

Having reviewed both parties’ arguments, the Court concludes that Cartmell has

established standing sufficient to invoke the Court’s subject matter jurisdiction. Consequently,

for the reasons set forth below, Credit Control’s motion to dismiss is denied.

II. BACKGROUND

A. Facts alleged in the Amended Complaint

The following are the relevant facts asserted in the Amended Complaint. Significantly,

these facts—namely, the existence, date, and content of the Letter, as well as the nature and

timeliness of the debt—are not in dispute.

Prior to April 23, 2018, Cartmell incurred a credit card debt to Credit One Bank, which

was subsequently sold or transferred to LVNV Funding, LLC. Amended Complaint (“Am.

Compl.”), ECF No. 14, ¶¶ 14-15, 17. On or about April 23, 2018, Credit Control, LLC, a debt

collector, caused to be delivered to Cartmell a collection letter in an attempt to collect on the

debt. Id. ¶ 20. As of April 23, 2018, more than six years had elapsed since the last payment or

activity on the LVNH Funding debt. Id. ¶ 24. The Letter offered Cartmell three “options” to pay

the time-barred debt, while also stating, “[t]he law limits how long you can be sued on a debt.

1 The Court will rule separately on the remaining motions at a future date should their

resolution remain necessary.

Because of the age of your debt, we will not sue you for it.” Id. ¶¶ 23, 25. However—and at the

heart of the dispute in this case—the Letter failed to inform Cartmell that should he choose one

of the payment options and make a payment, such action might revive the statute of limitations

for debt-collection purposes, which could expose him to future liability on the debt. Id. ¶ 26.

Based on this omission, Cartmell asserts causes of action for violations of (1) 15 U.S.C. § 1692e,

which prohibits the use of false, deceptive, or misleading representations or means in connection

with the collection of any debt,2 as well as (2) 15 U.S.C. §1692f, which prohibits the use of any

unfair or unconscionable means to collect any debt. See id. ¶¶ 35-45.

B. Procedural history

The initial Complaint in this action was filed on or about April 15, 2019. See ECF No. 1.

Counsel appeared before the Court for a Rule 16 initial conference on August 6, 2019, at which

time a discovery schedule was put in place. See ECF Nos. 7, 9. On August 13, 2019, the parties

filed a stipulation allowing Cartmell to file an Amended Complaint, see ECF Nos. 13-14, which

was accepted for filing and remains the operative pleading in the case.3

In October 2019, the Court received correspondence from counsel indicating the

existence of a potential discovery dispute. After receipt of this correspondence, on October 31,

2019, the Court extended the expert discovery deadline and scheduled a telephone conference,

which was held on November 4, 2019. See ECF No. 18. At the conference, the Court issued

several directives intended to resolve the dispute.4 See ECF No. 21.

2 Section 1692e is “the provision of the [FDCPA] dealing with communications from debt

collectors to debtors.” Jensen v. Pressler & Pressler, 791 F.3d 413, 419 (3d Cir. 2015).

3 The Amended Complaint appears to have been filed for the purpose of converting this

action from a single plaintiff action to a putative class action.

4 The underlying dispute concerned the production of paper discovery by Credit Control

for the purposes of generating a list of potential class members. Nothing further as to any

On December 4, 2019, the previously-set deadline for the filing of dispositive motions,

the parties filed cross-motions for summary judgment, see ECF Nos. 27, 30, in addition to a

motion for class certification filed by Cartmell, see ECF No. 29, and the instant motion to

dismiss for lack of subject matter jurisdiction by Credit Control, see ECF No. 28.

III. DISCUSSION

A. Legal Standard and Applicable Law

1. Federal Rule of Civil Procedure 12(b)(1)

Under Federal Rule of Civil Procedure 12(b)(1), “a court must grant a motion

to dismiss if it lacks subject-matter jurisdiction to hear a claim.” In re Schering Plough Corp.

Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012); Lenell v. Advanced

Min. Tech., Inc., No. 14-CV-01924, 2014 WL 7008609, at *1 (E.D. Pa. Dec. 11, 2014) (“At

issue in a Rule 12(b)(1) motion is the court’s ‘very power to hear the case.’” (quoting Petruska v.

Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006))). “A challenge to subject matter jurisdiction

under Rule 12(b)(1) may be either a facial or a factual attack. The former challenges subject

matter jurisdiction without disputing the facts alleged in the complaint, and it requires the court

to ‘consider the allegations of the complaint as true.’” Davis v. Wells Fargo, 824 F.3d 333, 346

(3d Cir. 2016) (quoting Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006)). “The

latter, a factual challenge, attacks the factual allegations underlying the complaint’s assertion

of jurisdiction, either through the filing of an answer or ‘otherwise present[ing] competing

facts.’” Davis, 824 F.3d at 346 (quoting Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358

(3d Cir. 2014)). When a movant presents a factual challenge to jurisdiction, the burden is on the

discovery issues was filed or otherwise brought to the Court’s intention following this telephone

conference.

plaintiff to show the presence of jurisdiction, and the trial court “may independently evaluate the

evidence regarding disputes over jurisdictional facts, rather than assuming that the plaintiff's

allegations are true.” Lenell, 2014 WL 7008609, at *2 (quoting CNA v. United States, 535 F.3d

132, 140 (3d Cir. 2008), as amended (Sept. 29, 2008)).

The initial question, then, is whether Credit Control’s challenge to jurisdiction is facial or

factual, the answer to which will in turn dictate the scope of what the Court may consider in

resolving the challenge—the allegations alone if the challenge is facial, or evidence beyond the

pleadings if the challenge is factual. See In re Schering Plough Corp., 678 F.3d at 243. Credit

Control contends that evidence outside the pleadings negates subject matter jurisdiction.

According to Credit Control, Cartmell’s deposition testimony establishes that he “understood

that the debt was too old for him to be sued on it and he never intended to make a payment in

response to Credit Control’s letter. Therefore, Cartmell suffered no injury and was not at risk of

suffering any harm.”5 Credit Control’s Moving Memorandum (“Credit Control Mem.”), ECF

No. 28, at 5. Cartmell responds by arguing, in essence, that because Credit Control violated a

substantive right conveyed by the FDCPA—the right to be free from false, deceptive, or

misleading representations in debt collection—as opposed to a mere procedural right, the

violation in and of itself is sufficient to satisfy the injury-in-fact requirement of Article III. See,

e.g., Cartmell’s Opposition Memorandum (“Cartmell Opp’n.”), ECF No. 34, at 6-9.

Although the key facts alleged in the operative pleading are not contested—Credit

Control does not dispute the nature of the debt or the content of the Letter, or that the Letter was

5 Rule 12(b)(1) is the proper vehicle for Credit Control’s motion. See In re Schering

Plough Corp., 678 F.3d at 243 (“A motion to dismiss for want of standing is . . . properly

brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter.” (quoting

Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007))).

sent to Cartmell by Credit Control in an attempt to collect on the debt—because Credit Control

asserts facts beyond the pleadings are dispositive as to jurisdiction, Credit Control’s motion is

properly considered a factual attack on subject matter jurisdiction. As a result, the Court is free

to weigh evidence beyond the pleadings in its analysis. 6 See CNA, 535 F.3d at 140, 145.

With an understanding of the nature and contours of Credit Control’s challenge to

jurisdiction, the Court briefly reviews principles of Article III standing generally before turning

to a review of standing principles in the context of the FDCPA specifically.

2. Article III standing generally

Article III, Section 2 of the United States Constitution limits the jurisdiction of federal

courts to actual “Cases” and “Controversies.” U.S. CONST. art. III, § 2. As the Supreme Court

has stated, “the core component of standing is an essential and unchanging part of the case-or-

controversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)

(citing Allen v. Wright, 468 U.S. 737, 751 (1984)); Davis, 824 F.3d at 346 (“Standing is

a jurisdictional matter. ‘Absent Article III standing, a federal court does not have subject

matter jurisdiction to address a plaintiff's claims, and they must be dismissed.’” (quoting

Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006))). Over the years,

federal jurisprudence has

established that the irreducible constitutional minimum of standing contains three

elements. First, the plaintiff must have suffered an “injury in fact”—an invasion of

a legally protected interest which is (a) concrete and particularized, and (b) actual

or imminent, not conjectural or hypothetical. Second, there must be a causal

connection between the injury and the conduct complained of—the injury has to be

fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e]

result [of] the independent action of some third party not before the court. Third,

6 It is worth noting that Cartmell’s position does not rely on any facts beyond the

pleadings, and, as discussed at length below, it is Cartmell’s position that prevails. As a result,

while the Court’s analysis is conducted through the lens of a “factual” challenge to jurisdiction,

Credit Control’s additional “facts” are, in the end, immaterial.

it must be “likely,” as opposed to merely “speculative,” that the injury will be

redressed by a favorable decision.

Lujan, 504 U.S. at 560-61 (internal quotations and citations omitted). Since these elements are

not mere pleading requirements but rather jurisdictional prerequisites, “each element must be

supported in the same way as any other matter on which the plaintiff bears the burden of proof,

i.e., with the manner and degree of evidence required at the successive stages of the litigation.”

Id. at 561.

The Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), as

revised (May 24, 2016), a case brought under the Fair Credit Reporting Act, bears heavily on the

instant analysis for what the Court said regarding the ability to claim an intangible injury as the

basis for standing—the very issue at the heart of Credit Control’s motion. As the Third Circuit

recently observed, the Supreme Court in Spokeo “highlighted that there are two elements that

must be established to prove an injury in fact—concreteness and particularization,” however, the

Court “rejected the argument that an injury must be ‘tangible’ in order to be ‘concrete.’” In re

Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 637 (3d Cir. 2017) (citing

Spokeo, 136 S. Ct. at 1545, 1549). The Court in Spokeo “explained that ‘both history and the

judgment of Congress play important roles’ in determining whether ‘an intangible injury

constitutes injury in fact.’” In re Horizon, 846 F.3d at 637 (quoting Spokeo, 136 S. Ct. at 1549).

Thus, Spokeo indicates that an intangible harm can satisfy the injury-in-fact requirement of

Article III if (1) “‘an alleged intangible harm’ is closely related ‘to a harm that has traditionally

been regarded as providing a basis for a lawsuit in English or American Courts,’” In re Horizon,

846 F.3d at 637 (quoting Spokeo, 136 S. Ct. at 1549), or (2) an alleged intangible harm has been

elevated by Congress “to the status of [a] legally cognizable injur[y],” Spokeo, 136 S. Ct. at 1549

(quoting Lujan, 504 U.S. at 578).

Where a plaintiff claims standing based on a congressionally-elevated intangible harm—

the second method identified above—a court must “ask[ ] whether Congress has expressed an

intent to make an injury redressable.” In re Horizon, 846 F.3d at 637. Importantly,

“congressional power to elevate intangible harms into concrete injuries is not without limits. A

‘bare procedural violation, divorced from any concrete harm,’ is not enough.”7 Id. (quoting

Spokeo, 136 S. Ct. at 1549). On the other hand, “the violation of a procedural right granted by

statute can be sufficient in some circumstances to constitute injury in fact. In other words, a

plaintiff in such a case need not allege any additional harm beyond the one Congress has

identified.” Spokeo, 136 S. Ct. at 1549 (emphasis in original). In such circumstances, “a

procedural right protects a concrete interest,” and “a violation of that right may create a sufficient

‘risk of real harm’ to the underlying interest to ‘satisfy the requirement of concreteness.’” Kamal

v. J. Crew Grp., Inc., 918 F.3d 102, 111 (3d Cir. 2019) (quoting Spokeo, 136 S. Ct. at 1549).8

3. Standing, the FDCPA, and recent developments in case law

The post-Spokeo case law addressing standing based on intangible harms is extensive.

Although the Court has come across no case that is precisely on point9—that is, where (i) an

7 The Supreme Court in Summers v. Earth Island Institute, 555 U.S. 488 (2009) explained

that “[d]eprivation of a procedural right without some concrete interest that is affected by the

deprivation—a procedural right in vacuo—is insufficient to create Article III standing. Only a

person who has been accorded a procedural right to protect his concrete interests can assert that

right without meeting all the normal standards for redressability and immediacy.” Id. at 496

(quotation omitted) (emphasis in original).

8 Importantly, Spokeo does not redefine the injury-in-fact requirement of standing; rather,

“it reemphasizes that Congress ‘has the power to define injuries’” that “were previously

inadequate in law.” In re Horizon, 846 F.3d at 638 (quoting Spokeo, 136 S. Ct. at 1549).

9 Although Cartmell claims Pierre v. Midland Credit Mgmt., Inc., No. 16 C 2895, 2019

WL 4059154 (N.D. Ill. Aug. 28, 2019) “involves exactly identical facts” as the facts of the

instant case, Cartmell Opp’n. at 19 (emphasis in original), the Court respectfully disagrees that

the facts are identical. One distinction is that Pierre testified to her emotional distress at

receiving the collection letter at issue and no such testimony exists for Cartmell. See, e.g.,.

Pierre, 2019 WL 4059154, at *4-*5. The facts are otherwise very similar.

FDCPA plaintiff claims a violation of the statute’s prohibition on unfair and deceptive debt

collection practices and (ii) the defendant points to affirmative evidence of the absence of intent

to pay the debt to negate standing—a survey of decisions, both from within and without this

Circuit, is necessary.

In Balon v. Enhanced Recovery Co., Inc., 264 F. Supp. 3d 597 (M.D. Pa. 2017), a debt

collector sent a collection letter to the debtor-plaintiff in an attempt to collect a $798.67 debt. Id.

at 601. The collection letter stated, in part, that “any indebtedness of $600.00 or more, which is

discharged as a result of a settlement, may be reported to the IRS as taxable income pursuant to

the Internal Revenue Code 6050 (P) and related federal law.” Id. The offer to settle was for

$638.94, such that “[t]he amount of savings if the offer was accepted would be $159.73” Id.

The district court observed that, while the Third Circuit had not, as of the date of the decision,

addressed whether a mere procedural violation of the FDCPA can give rise to a concrete injury,10

post-Spokeo, “a number of district courts in the Third Circuit have addressed that question.” Id.

at 608. “In fact,” it stated, “[s]ince Spokeo was decided, the overwhelming majority of courts

that have faced Article III standing challenges in FDCPA cases . . . have determined that a

violation of the FDCPA produces a ‘concrete injury.’” Id. (quotation marks omitted) (collecting

cases).11 The district court concurred with those courts that “[i]n enacting FDCPA, Congress

elevated certain abusive debt collection practices to the status of viable federal causes of action,”

including the very conduct prohibited by 15 U.S.C. § 1692e. Id. at 610 (quoting Bock v. Pressler

10 The Third Circuit addressed this issue in Kamal v. J. Crew Grp., Inc., 918 F.3d 102 (3d

Cir. 2019), discussed infra.

11 See also Sullivan v. Allied Interstate, LLC, No. CV 16-203, 2016 WL 7187507, at *5

(W.D. Pa. Oct. 18, 2016) (“Since Spokeo was decided, the overwhelming majority of courts that

have faced Article III standing challenges in FDCPA cases, including this Court, have

determined that a violation of the FDCPA produces a ‘concrete injury.’”), report and

recommendation adopted, No. CV 16-203, 2016 WL 7189859 (W.D. Pa. Dec. 9, 2016).

& Pressler, LLP, 254 F. Supp. 3d 724, 733 (D.N.J. 2017)). The district court moreover observed

that “[t]he right to truthful information” in the context of 15 U.S.C. § 1692e “is a substantive

right.” Balon, 264 F. Supp. 3d at 610 (quoting Bock, 254 F. Supp. 3d at 733). Having

previously determined that the debtor-plaintiff adequately pleaded a violation of 15 U.S.C. §

1692e,12 the district court concluded that the debtor-plaintiff’s “receipt of a deceptive

communication used to collect or attempt to collect a debt establishes that Plaintiff suffered a

sufficiently ‘concrete’ and ‘particularized’ injury for purposes of Article III standing.” Balon,

264 F. Supp. 3d at 610.

In Bock v. Pressler & Pressler, LLP, 254 F. Supp. 3d 724 (D.N.J. 2017), a case involving

the deceptive implication that an attorney was meaningfully involved in the preparation of a

collection complaint, the district court reached the same conclusion as the court in Balon. As in

Balon, court in Bock observed that “[i]n enacting FDCPA, Congress elevated certain abusive

debt collection practices to the status of viable federal causes of action,” including certain false

representations, which in and of themselves violate a “substantive right” and “create[ ] a

particularized and concrete injury.” Id. at 736. Under such circumstances, a plaintiff “need not

establish any ‘additional harm’ to surpass the standing threshold of concrete injury.” Id. (quoting

Spokeo, 136 S. Ct. at 1549).

In another case from the District of New Jersey, Thomas v. John A. Youderian Jr., LLC,

232 F. Supp. 3d 656 (D.N.J. 2017), the court reached a similar conclusion. In that case, the

debtor-plaintiff received a collection letter stating that payment of his debt by credit card would

12 See Balon v. Enhanced Recovery Co., Inc., 190 F. Supp. 3d 385, 392 (M.D. Pa. 2016)

(“[W]hile the challenged language may not be false in all respects, it certainly is not completely

true. Specifically, accepting the well pleaded facts and taking every inference in Plaintiff's favor,

the settlement of Plaintiffs debt could not possibly have been reportable under the relevant

exceptions.”) (quotations and citations omitted).

incur a $3.00 convenience fee, which he claimed was not lawful and therefore deceptive and

misleading. The district court found that “recent cases trend in favor of finding concrete injury

under the FDCPA where the amount or validity of the debt has been misstated. That injury, as

held in the cited cases, is one recognized by Section 1692e and its subsections, which protect

consumers from false, deceptive, and misleading representations.” Id. at 699 (footnote omitted).

The court further observed that “such cases fit easily within the Spokeo rationale” because “[t]he

right not to be given false information about the true amount owed is rooted in an interest

traditionally recognized at law. Congress, in enacting the FDCPA, could give content to that

interest and elevate particular violations of it to the status of a viable federal cause of action.” Id.

In Medina v. Allianceone Receivables Mgmt., Inc., No. CV 16-4664, 2017 WL 220328

(E.D. Pa. Jan. 19, 2017), a case relied on heavily by the court in Balon v. Enhanced Recovery

Co., Inc., the at-issue language in the collection letter stated, “[o]ur client Department Store

National Bank will report forgiveness of debt as required by IRS regulation.” Id. at *2. The

defendant, however, “concede[d] that it would not have to notify the IRS of any debt

forgiveness.” Id. As to the debtor-plaintiff’s standing to sue, which the defendant challenged,

the court stated as follows:

The FDCPA is designed to protect the consumer from the inherent harm caused

when a debt collector, in seeking to collect a debt, is not straight with the consumer

but instead makes a false or deceptive statement to achieve its purpose. The

deceptive declaration in the letter about a requirement to report the consumer’s

resolution of the debt to the IRS creates a particularized and concrete injury, at the

very least unnecessary fear and anxiety on the part of the consumer. While the harm

may be intangible, it involves a de facto injury nonetheless. The FDCPA was

enacted to provide redress for such a result. See In re Nichelodeon Consumer

Privacy Litig., 827 F.3d 262, 273-74 (3d Cir. 2016). Defendant’s argument to the

contrary would gut the salutary purpose of the FDCPA. Plaintiff has standing to

bring this action.

Medina, 2017 WL 220328, at *1.

Similarly, in Abraham v. Ocwen Loan Servicing, LLC, 321 F.R.D. 125 (E.D. Pa. 2017),

another 2017 decision from this district, the court found the parties had standing under the

FDCPA to assert claims based on allegedly misleading loan modification agreements. This

conclusion is notable because, beyond the plaintiffs’ failure to identify a tangible harm, the at-

issue modification agreements conveyed potential benefits to the plaintiffs. On this point the

court stated as follows:

Numerous courts have applying Spokeo found a sufficient “injury in fact” to

support a FDCPA claim from allegations that a plaintiff suffered an “informational

injury” because the character of a debt had been misrepresented.

* * *

We find that the [plaintiffs] have standing to pursue their FDCPA claim. As the

case law makes clear, it is sufficient under Spokeo if the FDCPA claim asserts that

the character of a debt has been misrepresented since that is the kind of injury the

FDCPA was intended to guard against, and no additional harm need be alleged.

Ocwen’s assertion that the [plaintiffs] possibly benefited from their loan

modification does not negate their having a concrete informational injury from the

allegedly deceptive balloon disclosure.

Id. at 166-68 (collecting cases).

More recently, in St. Pierre v. Retrieval-Masters Creditors Bureau, 898 F.3d 351 (3d Cir.

2018), the debtor-plaintiff alleged the defendant violated the FDCPA when it disclosed his

debtor account number through a transparent window on an envelope sent in the mail. The Third

Circuit noted that “unauthorized dissemination of personal information . . . causes an injury in

and of itself.” Id. at 357 (quoting In re Horizon, 846 F.3d at 639). The court concluded that the

visibility of the account number therefore “‘implicate[d] a core concern animating the FDCPA—

the invasion of privacy’—and thus [wa]s closely related to” a traditional harm.13 St. Pierre, 898

F.3d at 357-58 (quoting Douglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014)).

Several decisions from outside of this Circuit are consistent with the trend of the above

cases. Very soon after the decision in Spokeo was issued, the Eleventh Circuit decided Church v.

Accretive Health, Inc., 654 F. App’x 990 (11th Cir. 2016), a decision cited by the district court in

Abraham v. Ocwen Loan Servicing, LLC. In Church, a collection letter allegedly failed to

include certain disclosures, and the debtor-plaintiff did not claim any injury beyond being “very

angry” and “cr[ying] a lot.” Id. at 991. The Eleventh Circuit analogized the debtor-plaintiff’s

standing to the standing of a tester-plaintiff bringing suit under the Fair Housing Act. It noted

that such a tester-plaintiff was found to have standing in Havens Realty Corp. v. Coleman, 455

U.S. 363, 373 (1982), notwithstanding that the tester-plaintiff “did not intend to rent an

apartment, and was merely posing as a renter to collect evidence of unlawful steering practices.”

Church, 654 F. App’x. at 994. The Eleventh Circuit concluded that,

[j]ust as the tester-plaintiff had alleged injury to her statutorily-created right to

truthful housing information, so too has Church alleged injury to her statutorily-

created right to information pursuant to the FDCPA. The FDCPA creates a private

right of action, which Church seeks to enforce. . . . through the FDCPA, Congress

has created a new right—the right to receive the required disclosures in

communications governed by the FDCPA—and a new injury—not receiving such

disclosures.

* * *

Church has sufficiently alleged that she has sustained a concrete—i.e., “real”—

injury because she did not receive the allegedly required disclosures. The invasion

of Church’s right to receive the disclosures is not hypothetical or uncertain; Church

did not receive information to which she alleges she was entitled. While this injury

may not have resulted in tangible economic or physical harm that courts often

expect, the Supreme Court has made clear an injury need not be tangible to be

concrete.

13 The Court recognizes that St. Pierre is distinct from the other cases examined here in that

the interest at issue—privacy—is distinct from the interest in receiving truthful information.

Id. at 993-94 (citing Spokeo, 136 S. Ct. at 1549).

In Papetti v. Rawlings Financial Services, 691 F. App’x 24 (2d Cir. 2017) (summary

order), the Second Circuit addressed whether receipt of an allegedly-deficient collection letter by

itself satisfies the injury-in-fact requirement. The defendant argued that the debtor-plaintiff “did

not suffer an injury in fact because he alleged only ‘procedural violations’ of the FDCPA” which

“cannot qualify as ‘concrete’ injuries following the Supreme Court's decision in Spokeo.” Id. at

25. After explaining that the defendant had misinterpreted Spokeo, the Second Circuit stated as

follows:

[T]here can be no dispute that Sections 1692e and g of the FDCPA protect an

individual’s concrete interests. The purpose of the FDCPA is, among other things,

to protect debtors from abusive debt collection practices by debt collectors. . . .

Section 1692e protects a consumer’s ability to fully avail himself of his legal rights

by prohibiting debt collectors from deceiving or misleading debtors in the course

of collecting a debt. Thus, the FDCPA violations alleged by Papetti, taken as true,

entail the concrete injury necessary for standing.

Id. at App’x at 26.14

In Macy v. GC Servs. Ltd. P'ship, 897 F.3d 747 (6th Cir. 2018), the Sixth Circuit

addressed the same question. After noting that, “[u]nsurprisingly, the parties present diverging

interpretations of Spokeo,” the court engaged in an exhaustive review of post-Spokeo cases from

around the country. Id. at 754-56. The court then observed that Spokeo “categorized statutory

violations as falling into two broad categories: (1) where the violation of a procedural right

granted by statute is sufficient in and of itself to constitute concrete injury in fact” because

Congress conferred the right to protect concrete interests and the violation presents a risk of

harm to those concrete interests, and “(2) where there is a ‘bare’ procedural violation that does

14 In the end, the court affirmed the district court’s grant of summary judgment in the

defendant’s favor on other grounds.

not meet this standard, in which case a plaintiff must allege ‘additional harm beyond the one

Congress has identified.’” Id. at 756 (quoting Spokeo, 136 S. Ct. at 1549). The court concluded

that the defendant’s alleged FDCPA violation was, by itself, sufficient to confer standing: “GC’s

letters present a risk of harm to the FDCPA’s goal of ensuring that consumers are free from

deceptive debt-collection practices because the letters provide misleading information about the

manner in which the consumer can exercise the consumer’s statutory right[s],” and, as such, the

plaintiffs need not have alleged any additional harm beyond the one Congress has identified. Id.

at 757.

In Pierre v. Midland Credit Mgmt., Inc., No. 16 C 2895, 2019 WL 4059154, at *3 (N.D.

Ill. Aug. 28, 2019), the district court found the existence of standing to challenge a collection

letter which was very similar to the Letter here: it offered payment “options” on a time-barred

debt and stated that because the debt was time-barred the collector would not sue to collect;

however, it did not state that payment could potentially revive the statute of limitations. The

court first distinguished Pierre from Casillas v. Madison Ave. Assocs., Inc., 926 F.3d 329, 332

(7th Cir. 2019), a Seventh Circuit decision (relied heavily on by Credit Control here) in which

the court found a defective collection letter did not by itself confer standing to sue. See Pierre,

2019 WL 4059154, at *3. The district court in Pierre observed that while Casillas concerned a

collection letter which had omitted the required notice that a consumer’s dispute of a debt must

be in writing, Pierre concerned “not an incomplete letter, but a deceptive letter.” Id. The court

explained that failure to comply with the “statutory disclosure requirement” at issue in Casillas

was distinct from the “information injury” suffered when a letter fails to relate “substantive

information,” the omission of which could be misleading or deceptive: “[t]he FDCPA violation

at issue here was not a mere failure to inform the recipients of the letter of required statutory

disclosures. Rather, it was substantive, as it deceptively sought to entice action by the

recipients.” Id. at *4. Lastly, the district court found unpersuasive the defendant’s argument that

the debtor-plaintiff’s deposition testimony negated jurisdiction; her testimony “was not a

concession” that “she was not mislead or confused by the letter—quite the opposite.” Id. at *5.

The court observed that she had even testified to experiencing “emotional distress” after

receiving the letter. Id. at *4.

The decisions reviewed up to this point have found receipt of allegedly violative

collection letters sufficient, without more, to confer standing. The final group of decisions worth

reviewing are those in which courts have found an FDCPA violation insufficient, by itself, to

confer standing.

In Benali v. AFNI, Inc., No. CV 15-3605, 2017 WL 39558 (D.N.J. Jan. 4, 2017), the

district court concluded that the debtor-plaintiff did not have standing to sue on a collection letter

that stated “[p]ayments made electronically . . . may be subject to a $4.95 processing fee.

Payment sent by mail are not subject to any processing fee.” Id. at *1. The court’s conclusion

rested on the fact that “the AT&T Mobility account referenced in the Collection Letter [was] not

Plaintiff's.” Id. Therefore, while the processing-fee language was a technical violation of the

FDCPA, “[m]erely receiving the Collection Letter, without more, [was] not sufficient to confer

Article III standing because, as Plaintiff unequivocally testified, the alleged ‘debt’ was not his,

and he knew it immediately upon receiving the Collection Letter.” Id. at *6. As such, it was

“undisputed that there was no risk that Plaintiff would pay the $4.95 processing fee.” Id. at *7.

In Pozzuolo v. Portfolio Recovery Assocs., LLC, 371 F. Supp. 3d 217 (E.D. Pa. 2019), a

recent case from this district, a collection letter violated the validation notice requirement of 15

U.S.C. § 1692g in advising the debtor-plaintiff “that he could dispute the debt by telephoning

[the defendant] even though only a written dispute suffices to trigger the debt collector’s

obligations under § 1692g(b) to cease collection and provide verification of the debt to the

consumer.” Id. at 219. Notwithstanding this technical violation of the FDCPA, the plaintiff

testified that “he merely skimmed the letter and had no intention” of disputing the debt, the court

concluded he lacked standing. Id. at 220. Key to why the absence of an intent to dispute the

debt negated standing was the court’s observation that the “letter to Pozzuolo constituted a

procedural violation of the FDCPA.” Id. at 224.

Finally, in Kamal v. J. Crew Grp., Inc., 918 F.3d 102 (3d Cir. 2019), a case brought

under the Fair and Accurate Credit Transactions Act rather than the FDCPA, but noteworthy

nonetheless, the Third Circuit explained that, up to the present, it had had “no occasion to

consider” whether a purely procedural violation of a statute can alone confer standing. Id. at

112. This was because in past cases, “the underlying harm contemplated by Congress had

already materialized or failed to materialize.” Id. In Kamal, the court was “now presented with

a case that require[d] [it] to consider the full reach of congressional power to elevate a procedural

violation into an injury in fact.” Id. On this point, the court concluded that, like several other

circuits, it understood Spokeo “to instruct that an alleged procedural violation . . . manifest[s]

concrete injury if the violation actually harms or presents a material risk of harm to the

underlying concrete interest. If the violation does not present a material risk of harm to that

underlying interest, however, a plaintiff fails to demonstrate concrete injury.” Id. at 112-13.

B. Application to the facts of this case

The Court must now take the principles set forth in the above decisions and apply them to

Credit Control’s challenge to jurisdiction. As previously summarized, Credit Control contends

that Cartmell’s deposition testimony negates jurisdiction. Specifically, Credit Control argues

that Cartmell made multiple statements in his deposition establishing that “he did not intend to

make a payment on the [debt], understood that the legal statute of limitations had run on the

[debt], didn’t feel threatened by the Letter, wasn’t sued on the debt, and wasn’t concerned about

being sued on the debt.”15 Credit Control Mem. at 3. Cartmell in response argues that the

weight of case law makes clear that the violation of a substantive right conveyed by statute—like

the right to receive truthful information conveyed by the FDCPA—is sufficient in itself to confer

standing without any further showing. See Cartmell Opp’n. at 6-14. Assuming without deciding

that the at-issue omission of the Letter here—i.e., the Letter’s failure to inform Cartmell that

making any payment on his debt, as the Letter invited, could revive the statute of limitations—

constituted a deceptive or misleading representation in violation of 15 U.S.C. § 1692e, the Court

must conclude that Cartmell’s receipt of the Letter is, in itself, sufficient to confer standing upon

him to sue Credit Control for violation of the FDCPA. He need make no further showing.

This conclusion is mandated by the nature of the alleged violation and the right of which

Cartmell is being deprived as a result. As the above cases make clear, there is a significant

difference between the violation of a statutorily-conferred procedural right which is disconnected

from some concrete interest—“a procedural right in vacuo”—and the violation of a statutorily-

conferred right which is intended to protect a concrete interest. Summers v. Earth Island

Institute, 555 U.S. 488, 496 (2009). The former “is insufficient to create Article III standing.

Only a person who has been accorded a procedural right to protect his concrete interests can

assert that right without meeting all the normal standards for redressability and immediacy.” Id.

15 Cartmell was working with a credit repair agency who was advising him as to which

debts to pay and which debts not to pay. Cartmell testified that he only filed the instant action

after an attorney from the credit repair agency told him he should pursue litigation with respect

to the Letter.

As several of the examined cases explain, an otherwise procedural statutory right is, when

intended by Congress to protect a clear, concrete interest, properly characterized as a

“substantive right.” In the context of the FDCPA, the right conferred by 15 U.S.C. § 1692e’s

prohibition on false, deceptive, or misleading representations is “[t]he right to truthful

information,” which, centered as it is on a concrete interest, “is a substantive right.” Balon v.

Enhanced Recovery Co., Inc., 264 F. Supp. 3d 597, 610 (M.D. Pa. 2017) (quoting Bock v.

Pressler & Pressler, LLP, 254 F. Supp. 3d 724, 733 (D.N.J. 2017)).

The Court finds this characterization of the right conferred by Section 1692e—a

“substantive right” to truthful or non-misleading information in the debt-collection process—to

be appropriate and consistent with the vast weight of the authorities the Court has examined.

Indeed, there is little disagreement in the case law as to what “interests” Congress was

attempting to protect in enacting the FDCPA, or whether those interests are sufficiently

“concrete” to constitute a substantive right—the deprivation of which creates a de facto

informational injury. 16 See, e.g., Medina v. Allianceone Receivables Mgmt., Inc., No. CV 16-

4664, 2017 WL 220328, at *1 (E.D. Pa. Jan. 19, 2017) (explaining that although the harm caused

by a deceptive communication “may be intangible, it involves a de facto injury nonetheless[; t]he

FDCPA was enacted to provide redress for such a result”); Thomas v. John A. Youderian Jr.,

LLC, 232 F. Supp. 3d 656, 669 (D.N.J. 2017) (“The right not to be given false information about

the true amount owed is rooted in an interest traditionally recognized at law. Congress, in

16 As the court characterized it in Abraham v. Ocwen Loan Servicing, LLC, deprivation of

the right conferred by Section 1692e constitutes an “informational injury.” 321 F.R.D. 125, 168

(E.D. Pa. 2017) (“As the case law makes clear, it is sufficient under Spokeo if the FDCPA claim

asserts that the character of a debt has been misrepresented since that is the kind of injury the

FDCPA was intended to guard against, and no additional harm need be alleged. Ocwen’s

assertion that the Caves possibly benefited from their loan modification does not negate their

having a concrete informational injury from the allegedly deceptive balloon disclosure.”).

enacting the FDCPA, could give content to that interest and elevate particular violations of it to

the status of a viable federal cause of action.”); Balon, 264 F. Supp. 3d at 610 (explaining that

through the FDCPA, “Congress elevated certain abusive debt collection practices to the status of

viable federal causes of action,” including the conduct prohibited by 15 U.S.C. § 1692e); Papetti

v. Rawlings Financial Services, 691 F. App’x 24 (2d Cir. 2017) (summary order) (“[T]here can

be no dispute that Sections 1692e and g of the FDCPA protect an individual’s concrete interests.

The purpose of the FDCPA is, among other things, to protect debtors from abusive debt

collection practices by debt collectors. . . . Section 1692e protects a consumer’s ability to fully

avail himself of his legal rights by prohibiting debt collectors from deceiving or misleading

debtors in the course of collecting a debt.”); Church v. Accretive Health, Inc., 654 F. App’x 990,

993 (11th Cir. 2016) (“The FDCPA creates a private right of action, which Church seeks to

enforce. . . . [T]hrough the FDCPA, Congress has created a new right—the right to receive the

required disclosures in communications governed by the FDCPA—and a new injury—not

receiving such disclosures.”).

Therefore, because protecting against the harm resulting from deceptive or misleading

communications was a primary goal of the FDCPA, a violation of Section 1692e’s prohibition on

false, deceptive, or misleading communications deprives a debtor of his or her substantive right

to truthful information. A debtor who receives a deceptive or misleading communication

accordingly “need not establish any ‘additional harm’ to surpass the standing threshold of

concrete injury.” Bock, 254 F. Supp. 3d at 736 (quoting Spokeo, 136 S. Ct. at 1549); Abraham,

321 F.R.D. at 168 (“[I]t is sufficient under Spokeo if the FDCPA claim asserts that the character

of a debt has been misrepresented since that is the kind of injury the FDCPA was intended to

guard against, and no additional harm need be alleged.”). To require more would be to deprive

debtor-plaintiffs of a remedy Congress clearly intended to confer. See Balon, 264 F. Supp. 3d at

610. In this way, Cartmell’s receipt of Credit Control’s collection letter subjected Cartmell to a

de facto concrete injury—the deprivation of his substantive right to truthful information.

While this conclusion is consistent with Spokeo and the many decisions that have applied

it, it is also consistent with how the Supreme Court has addressed the standing of “tester-

plaintiffs.” Indeed, the “tester-standing” analogy is particularly insightful here. As noted

previously, tester-standing in the Fair Housing Act context was addressed by the Supreme Court

in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). The tester-plaintiff in Havens Realty

Corp.—an African American “tester” who, in “testing” for violations of the Fair Housing Act,

applied to rent apartments with no intent of actually renting—alleged only an informational

injury: receipt of false information that there were no apartments available to rent when, in fact,

there were apartments available to white applicants. The Supreme Court explained that the Fair

Housing Act “establishes an enforceable right to truthful information concerning the availability

of housing” and a “tester who has been the object of a misrepresentation made unlawful under

[the Fair Housing Act] has suffered injury in precisely the form the statute was intended to guard

against, and therefore has standing to maintain a claim for damages under the Act’s provisions.”

Id. at 373-74. In Church v. Accretive Health, Inc., 654 F. App’x 990 (11th Cir. 2016), the

Eleventh Circuit applied the logic of Havens Realty Corp. to the FDCPA, explaining that, “[j]ust

as the tester-plaintiff had alleged injury to her statutorily-created right to truthful housing

information [in Havens Realty Corp.], so too has Church alleged injury to her statutorily-created

right to information pursuant to the FDCPA.” Church, 654 F. App’x at 994. The Court agrees

with the Eleventh Circuit’s analysis; the type of injury the Fair Housing Act and the FDCPA

were enacted to remedy—and the concomitant private right of action they create—are

particularly analogous.

The several cases examined above in which courts have determined FDCPA plaintiffs

lacked standing further support the Court’s conclusion that Cartmell has established it here. In

Pozzuolo v. Portfolio Recovery Assocs., LLC, 371 F. Supp. 3d 217 (E.D. Pa. 2019), the

defendant’s collection letter gave the debtor-plaintiff two options for disputing his debt—orally

and in writing—without informing him that only a written dispute triggers the debt collector’s

statutory obligations to cease collection attempts. Similarly, as the district court in Pierre v.

Midland Credit Mgmt., Inc., No. 16 C 2895, 2019 WL 4059154 (N.D. Ill. Aug. 28, 2019)

observed, the Seventh Circuit’s decision in Casillas v. Madison Ave. Assocs., Inc., 926 F.3d 329

(7th Cir. 2019)—the lynchpin of Credit Control’s argument17—concerned a failure to comply

with the “statutory disclosure requirement” regarding disputing a debt. Pierre, 2019 WL

4059154, at *4. As the district court in Pierre explained, the FDCPA violation at issue in

Casillas was distinct from the “information injury” suffered when a letter fails to relate

“substantive information,” the omission of which could be misleading or deceptive. Id. Finally,

in Benali v. AFNI, Inc., No. CV 15-3605, 2017 WL 39558 (D.N.J. Jan. 4, 2017), the district court

concluded that where no harm beyond receipt of a collection letter was alleged, and the letter

stated that “[p]ayments made electronically . . . may be subject to a $4.95 processing fee[;

p]ayment sent by mail are not subject to any processing fee,” the debtor-plaintiff did not have

standing to sue. Id. at *1.

17 See Credit Control Mem. at 8-9.

In Pozzuolo, Casillas, and Benali, the manner in which the collection letter violated the

FDCPA was key to the finding that the plaintiff did not have standing to sue. As these cases

illustrate, where a collection letter violates the FDCPA in a manner that can be characterized as

“incomplete” or “erroneous” rather than misleading or deceptive—that is, where the letter

includes incomplete or inaccurate information but does not attempt to persuade or dissuade in a

deceptive manner—receipt of the letter will not by itself constitute an “informational injury”

sufficient to confer standing. This distinction is but one embodiment of the distinction between

“procedural” and “substantive” statutory rights discussed at length. The district court in Pierre

described this distinction well: “[t]he FDCPA violation at issue here was not a mere failure to

inform the recipients of the letter of required statutory disclosures. Rather, it was substantive, as

it deceptively sought to entice action by the recipients.” 2019 WL 4059154, at *4. Framing the

procedural vs. substantive distinction in terms of incomplete vs. deceptive communications in

this manner further helps to illustrate why, assuming, as the Court does, that Credit Control’s

collection letter was a “deceptive” communication under Section 1692e, its receipt alone is

sufficient to confer standing.

The final issue that must be (briefly) addressed is the affirmative evidence Credit Control

puts forwards: Cartmell’s testimony that he understood the debt was beyond the statute of

limitations, and that he never intended to pay it. Put simply, it is of no moment that Cartmell did

not intend to pay the debt. Congress conferred upon him a substantive right to receive truthful,

non-deceptive information, which Credit Control violated when it sent, and Cartmell received,

the Letter in this case. Cartmell’s receipt of the letter was itself the informational harm the

FDCPA was enacted to prevent. Abraham, 321 F.R.D. at 168 (“[I]t is sufficient under Spokeo if

the FDCPA claim asserts that the character of a debt has been misrepresented since that is the

kind of injury the FDCPA was intended to guard against, and no additional harm need be

alleged.”). 18

IV. CONCLUSION

For the foregoing reasons, Cartmell has alleged facts sufficient to establish his standing to

sue, and Credit Control’s motion to dismiss is denied. Considering this determination, and in

light of the three remaining motions in this case, the Court will be scheduling this matter for a

telephone conference to discuss with counsel how the case should proceed.19 The date and time

of that conference will be set forth in a subsequent Order.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.__________

JOSEPH F. LEESON, JR.

United States District Court

18 The court’s analysis in Abraham further illustrates that what Cartmell intended to do or

not do with the information contained in the Letter is irrelevant. It is precisely because access to

truthful information is the concrete interest protected by the statute (rather than what action is

taken on that information), that the court in Abraham determined the plaintiffs had standing to

sue even though they received or likely received benefits as a result of their receipt of the

violative communication. See id. (“Ocwen’s assertion that the [plaintiffs] possibly benefited

from their loan modification does not negate their having a concrete informational injury from

the allegedly deceptive balloon disclosure.”).

19 It is unclear whether either side wishes to engage in class discovery if (1) Cartmell

wishes to move forward with his motion for class certification and (2) the Court grants the

motion. Although the fact discovery deadline has passed, the Court recognizes that were the

class certification motion to be granted, the parties would likely be entitled to some class

discovery. The Court also wishes to hear from counsel as to how they anticipate the pending

motions for summary judgment being affected by potential class discovery.