# Vazzano v. Receivable Management Services, LLC

> District Court, N.D. Texas · August 12, 2022

URL: https://www.frixlaw.com/law-library/cases/10451761

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** August 12, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10451761

## How later opinions describe it (automated extraction)

- holding that “stress and confusion,” “frustration,” and worry were insufficient for standing
- holding that debt collector’s letter violated § 1692c(c) after plaintiff stated that “I dispute this debt and refuse to pay”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
APRILE VAZZANO, §
§
Plaintiff, §
§ Civil Action No. 3:21-CV-0825-D
VS. §
§
RECEIVABLE MANAGEMENT §
SERVICES, LLC, and RLI §
INSURANCE COMPANY, §
§
Defendants. §
MEMORANDUM OPINION
AND ORDER
In this action by plaintiff Aprile Vazzano (“Vazzano”) asserting claims for violations
of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), and the
Texas Debt Collection Practices Act, Tex. Fin. Code Ann. §§ 392.001-.404 (West 2016)
(“TDCPA”), Vazzano moves for partial summary judgment on her § 1692c(c) claim, and
defendant Receivable Management Services, LLC (“RMS”) cross-moves for summary
judgment on all of Vazzano’s claims. For the reasons that follow, the court grants Vazzano’s
motion for partial summary judgment and denies RMS’s motion for summary judgment.
I
Vazzano purchased an automobile insurance policy (the “Original Policy”) from
Progressive Advanced Insurance Company (“Progressive”).1 The policy period for the
1Because both sides move for summary judgment, the court will recount the evidence
that is undisputed, and, when it is necessary to set out evidence that is contested, will do so
favorably to the side who is the summary judgment nonmovant in the context of that
Original Policy ended on November 21, 2019. Vazzano made timely payments on the policy.
At the end of the policy period, Progressive gave Vazzano the option to renew her
policy. The new policy period would run from November 21, 2019 to May 21, 2020 (the

“Renewal Policy”). To renew, Vazzano could pay in installments, with the first installment
due on November 21, 2019 for $142.86.2 Vazzano could also call or go online to renew. If
she did not renew, her policy with Progressive would end on November 21, 2019.
Although Vazzano contends she did not renew her policy, Progressive thought that
she had,3 so it sought the sum of $183.28 from Vazzano. When she did not pay this amount,

Progressive transferred the debt to defendant RMS for collection.
On February 15, 2020 RMS sent Vazzano a debt collection letter (the “February
letter”), which stated that it was an “attempt to collect a debt.” P. App. (ECF No. 47) at 4.
RMS offered Vazzano ways to pay the debt. It stated that Vazzano had 30 days to dispute

the validity of the debt, and, if she did, that RMS would obtain verification of the debt and

evidence. See, e.g., GoForIt Entm’t, LLC v. DigiMedia.com L.P., 750 F.Supp.2d 712, 718
n.4 (N.D. Tex. 2010) (Fitzwater, C.J.) (quoting AMX Corp. v. Pilote Films, 2007 WL
1695120, at *1 n.2 (N.D. Tex. June 5, 2007) (Fitzwater, J.)).
2This number later changed. Progressive sent a second letter, entitled “Renewal
Reminder,” on November 5, 2019. This letter stated that the cost of the initial installment
for renewal was $152.86.
3A Progressive employee stated that Vazzano paid Progressive $152.86 on November
29, 2019, which was the first installment of the Renewal Policy. Progressive also sent a
cancellation letter on January 2, stating that the Renewal Policy was canceled due to a lack
of a second installment payment. Vazzano disputes paying Progressive and notes that
Progressive sent her a cancellation letter on November 29, 2019 that said “you no longer
have insurance with us, effective November 29, 2019 . . . .” P. App. (ECF No. 47) at 18.
- 2 -
send a copy of the verification.
On March 5, 2020 Vazzano sent a letter, by certified mail, return receipt requested,
to RMS stating the following:

Re: Reference No. [redacted in original] 9400 (Progressive Insurance)
To whom this may concern,
This letter is in response to the collection notice I received from
your agency in regard to the above referenced matter.
Please be advised that alleged debt is hereby being disputed,
your client is fully aware that no such funds are owed to them,
thus I refuse to pay.
I have been in direct contact with your client concerning this
issue and expect it to be fully resolved within the next few
weeks. Formal notice is hereby given to you that all further
communication shall be in writing only so that no facts are
misconstrued.
Respectfully,
Aprile Vazzano
Id. at 7. RMS received the letter.4 Nevertheless, on November 19, 2020 RMS sent Vazzano
another letter regarding the debt (the “November letter”). The November letter stated that
there was “[e]nclosed . . . a copy of the information [Vazzano] requested regarding the debt,”
and it offered ways to pay off the debt.5 Id. at 12. The letter also stated at the bottom that
4Vazzano mentions debt-collection phone calls that she received. It appears that these
calls were received before Vazzano sent her letter to RMS.
5The parties characterize the November letter differently. Vazzano appears to regard
it as a letter seeking payment of the debt, while RMS describes it as a “verification letter.”
- 3 -
“[w]e are a debt collector attempting to collect a debt . . . .” Id.
Vazzano filed this lawsuit against RMS alone. After the court granted judgment on
the pleadings in RMS’s favor, Vazzano filed an amended complaint adding RLI Insurance

Company as a defendant. After discovery, the parties now move for summary judgment.
Vazzano moves for partial summary judgment on her § 1692c(c) claim,6 while RMS moves
for summary judgment on all of Vazzano’s claims. Vazzano also objects to the declaration
of Sharon B. Waddell (the “Waddell Declaration”), which RMS has filed in support of its
motion for summary judgment.7 The court is deciding the motions on the briefs.

II
When a party moves for summary judgment on claims on which the opposing party
will bear the burden of proof at trial, the moving party can meet its summary judgment
obligation by pointing the court to the absence of admissible evidence to support the

nonmovant’s claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the
moving party does so, the nonmovant must go beyond its pleadings and designate specific
facts showing there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine if the evidence
is such that a reasonable jury could return a verdict in the nonmovant’s favor. Anderson v.

6Vazzano does not move for judgment on the damages portion of her claim, which she
contends should be decided by a jury.
7The court overrules this objection as moot because, assuming arguendo that the court
can consider the Waddell Declaration (which is favorable to RMS), the court grants Vazzano
the judgment she seeks, infra § IV(B), and denies RMS’s motion for summary judgment.
- 4 -
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant’s failure to produce proof
as to any essential element of a claim renders all other facts immaterial. See TruGreen
Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.).

Summary judgment is mandatory if the nonmovant fails to meet this burden. Little, 37 F.3d
at 1076.
To be entitled to summary judgment on a claim or defense on which the moving party
will bear the burden of proof at trial, the movant “must establish ‘beyond peradventure all

of the essential elements of the claim or defense.’” Bank One, Tex., N.A. v. Prudential
Ins.Co. of Am., 878 F. Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v.
Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). This means that the movant must
demonstrate that there are no genuine and material fact disputes and that it is entitled to
summary judgment as a matter of law. See Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409,

412 (5th Cir. 2003). “The court has noted that the ‘beyond peradventure’ standard is
‘heavy.’” Carolina Cas. Ins. Co. v. Sowell, 603 F.Supp.2d 914, 923-24 (N.D. Tex. 2009)
(Fitzwater, C.J.) (quoting Cont’l Cas. Co. v. St. Paul Fire & Marine Ins. Co., 2007 WL
2403656, at *10 (N.D. Tex. Aug. 23, 2007) (Fitzwater, J.)).
III

The court first addresses whether Vazzano has standing.8

8The court must address RMS’s jurisdictional challenge to constitutional standing
before moving to the merits. See Servicios Azucareros de Venezuela, C.A. v. John Deere
Thibodeaux, Inc., 702 F.3d 794, 799 (5th Cir. 2012).
- 5 -
A
The standing doctrine addresses the question of who may properly bring suit in federal
court, and “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). It “involves both
constitutional limitations on federal-court jurisdiction and prudential limitations on its
exercise.” Warth v. Seldin, 422 U.S. 490, 498 (1975). To establish standing, a plaintiff must
meet both constitutional and prudential requirements. See, e.g., Procter & Gamble Co. v.

Amway Corp., 242 F.3d 539, 560 (5th Cir. 2001), abrogated on other grounds by Lexmark
Intern., Inc. v. Static Control Components, Inc., 572 U.S. 118, 134 (2014). RMS contends
that Vazzano lacks constitutional standing, which requires that she establish that she “(1)
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo,

Inc. v. Robins, 578 U.S. 330, 338 (2016) (citing Defs. of Wildlife, 504 U.S. at 560). “The
plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these
elements.” Id. (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990)).
B
RMS contends that Vazzano lacks standing because she cannot show an injury in fact,

an essential element of standing. RMS maintains that, after TransUnion LLC v. Ramirez, ___
U.S. ___, 141 S. Ct. 2190 (2021), Vazzano cannot simply point to a violation of the FDCPA
to establish standing. And it maintains that she has not shown that she has otherwise suffered
a concrete injury: in particular, she has not introduced evidence that she suffered mental
- 6 -
anguish damages. RMS contends that the conclusory statements regarding mental anguish
to which she testified at her deposition are insufficient to satisfy her burden of proof at this
stage of the litigation. RMS also posits that, contrary to Vazzano’s contention, intrusion

upon seclusion is not a common-law analogue to § 1692c(c) and therefore is not a basis for
standing.
Vazzano responds that a violation of the FDCPA is sufficient of itself to confer
standing, and, even if it is not, she has provided evidence of mental anguish. For example,

she testified in her deposition that she has suffered panic attacks, an elevated heart rate, loss
of sleep, and diarrhea, and she has also suffered interrupted sleep, some memory lapses, and
lack of concentration. Alternatively, Vazzano contends that she also suffered an intangible
harm of intrusion upon her seclusion: the November letter violated her privacy, and she felt
harassed by it.

C
The court must decide whether a reasonable jury could find that Vazzano suffered an
injury-in-fact (the first element of standing).9
1
“To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion

of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent,

9The parties do not dispute the other elements of standing.
- 7 -
not conjectural or hypothetical.’”10 Spokeo, 578 U.S. at 339 (quoting Defs. of Wildlife, 504
U.S. at 560).11 “A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.” Id. at
340. Thus while an injury need not be tangible, it cannot be merely abstract or hypothetical.

Id. at 339-41; TransUnion LLC, 141 S. Ct. at 2204. “[T]he violation of a procedural right
granted by statute can be sufficient in some circumstances to constitute injury in fact.”
Spokeo, 578 U.S. at 342. “But deprivation of a procedural right without some concrete
interest that is affected by the deprivation . . . is insufficient to create Article III standing.”

Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009); see also Spokeo, 578 U.S. at 341
(“[Plaintiff] could not, for example, allege a bare procedural violation, divorced from any
concrete harm, and satisfy the injury-in-fact requirement of Article III.”).
In other words, to have suffered a “concrete” harm, Vazzano must identify a physical
harm, monetary harm, or intangible harm (like a reputational harm) with “a close historical

or common-law analogue for the[] asserted injury.” TransUnion LLC, 141 S. Ct. at 2204.

10“[W]hen [standing is] challenged by a motion for summary judgment, . . . evidence
is required, including affidavits and other facts. If such evidence is presented, whether
controverted or not, it is accepted as true and survives summary judgment; if the evidence
is controverted, standing must be supported adequately by the evidence adduced at trial.”
Cadle Co. v. Neubauer, 562 F.3d 369, 371 (5th Cir. 2009) (internal citation and quotation
marks omitted) (quoting Defs. of Wildlife, 504 U.S. at 561).
11The parties do not dispute the “particularized” portion of the injury-in-fact inquiry.
While the plaintiff is required to show a “particularized” injury, there is no dispute here that
Vazzano’s receipt of the letter affected her in a personal and individualized way. See
Ojogwu v. Rodenburg Law Firm, 26 F.4th 457, 462 (8th Cir. 2022) (“Rodenburg directly
mailed documents to consumer debtor Ojogwu. Thus, the alleged FDCPA violation was
particularized, affecting him in a ‘personal and individual way.’” (quoting Defs. of Wildlife,
504 U.S. at 560 n.1)).
- 8 -
The “most obvious” injuries are physical and monetary harms. Id. But Article III also
recognizes intangible harms, such as “reputational harms, disclosure of private information,
and intrusion upon seclusion.” Id. Furthermore, in identifying a common law analogue for

certain injuries, it is not necessary that an injury that is an “exact duplicate.” But this is not
an “open-ended invitation for federal courts to loosen Article III . . . .” Id. The court must
respect Congress’ views, which are “instructive,” Spokeo, 578 U.S. at 341, but Congress
may not “simply enact an injury into existence . . . .” TransUnion LLC, 141 S. Ct. at 2205
(quotation omitted). An “injury in law is not an injury in fact.” Id.12

2
Vazzano first points to harm she suffered in the form of emotional distress and mental

12The court need not address Vazzano’s contention that the statutory violation itself
confers standing because Vazzano has standing on another ground. But the court notes that,
before the Supreme Court decided TransUnion in 2021, “[c]ourts across the country,
including in the Fifth Circuit, . . . ‘considered whether a violation of the FDCPA itself
confers standing on a plaintiff, and they . . . answered that question in the affirmative.’”
Smith v. Moss L. Firm, P.C., 2020 WL 584617, at *4 (N.D. Tex. Feb. 6, 2020) (Fitzwater,
J.) (quotation omitted). After TransUnion was decided, however, the weight of authority has
shifted. See Ojogwu, 26 F.4th at 461-63; Maddox v. Bank of N.Y. Mellon Tr. Co., 19 F.4th
58, 64 (2d Cir. 2021); Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 462 (7th Cir. 2020)
(Barrett, J.) (holding that standing “depends on whether the unwanted texts from AT&T
caused [the plaintiff] concrete harm or were merely a technical violation of the statute”), cert.
denied, 141 S. Ct. 2552 (2021); see also Lupia v. Medicredit, Inc., 8 F.4th 1184, 1192 (10th
Cir. 2021); Brown v. Shapiro & Kreisman, LLC, 2021 WL 5155673, at *1 (S.D. Tex. July
22, 2021) (“Plaintiff has neither alleged nor argued that Defendant’s technical statutory
violations confused or harmed her in any way.”); Dionisio v. S. Fin. Sys., Inc., 2022 WL
2825829, at *4 (S.D. Miss. May 25, 2022). But see Almon v. Conduent Bus. Servs., LLC,
2022 WL 902992, at *17-18 (W.D. Tex. Mar. 25, 2022) (“Even if Plaintiffs were required
to show an injury beyond these violations of the EFTA and Regulation E . . . .”); Perez v.
McCreary, Veselka, Bragg & Allen, P.C., 2021 WL 3639801, at *3 (W.D. Tex. Aug. 17,
2021).
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anguish. The parties devote the majority of their briefing to this issue. The court begins by
noting that TransUnion left open the questions now before this court: whether emotional
damages suffice for standing and, if they do, what type of emotional damages count.

TransUnion states that a “physical or monetary injury” or “intangible harm[]” such as
“reputational harms, disclosure of private information, and intrusion upon seclusion” suffices
for standing. See TransUnion LLC, 141 S.Ct. at 2204. And in a footnote, TransUnion
discusses “emotional . . . harm,” which it says may suffice for standing, potentially by

analogy to the tort of intentional infliction of emotion distress, but on which it explicitly
takes no position. Id. at 2211 n.7 (“We take no position on whether or how such an
emotional or psychological harm could suffice for Article III purposes—for example, by
analogy to the tort of intentional infliction of emotional distress.”).
With TransUnion leaving the question open, precedent seems to offer insights:

courts—especially in this circuit—have consistently held that evidence of emotional harm
suffices for constitutional standing. See Rideau v. Keller Indep. Sch. Dist., 819 F.3d 155,
169 (5th Cir. 2016) (suggesting that “emotional harm satisfies the ‘injury in fact’ requirement
of constitutional standing”); Mayfield v. LTD Fin. Servs., L.P., 2021 WL 4481089, at *4
(S.D. Tex. Sept. 30, 2021) (collecting cases). Courts have found standing based on evidence

of “anxiety[] and worry,” Smith v. Moss Law Firm, P.C., 2020 WL 584617, at *6 (N.D. Tex.
Feb. 6, 2020) (Fitzwater, J.) (“Smith has at least produced evidence that would enable a
reasonable jury to find that he had to deal with a lawsuit that improperly named him as a
party, ‘with its attendant legal costs, anxiety, and worry’” (citation omitted)), and “emotional
- 10 -
stress” and feeling “upset,” Kranz v. Midland Credit Management, Inc., 2020 WL 3899223,
at *6 (W.D. Tex. July 10, 2020), among others.13 In particular, in the context of the FDCPA,
courts have found emotional harm sufficient for Article III standing. Palmer v. Online Info.

Servs., Inc., 2020 WL 7658063, at *5 (E.D. Tex. Nov. 9, 2020) (“Although the Fifth Circuit
has not spoken on the issue, other courts have found that emotional distress constitutes an
injury in fact under the FCRA and the FDCPA.”), rec. adopted, 2020 WL 7388963 (E.D.
Tex. Dec. 16, 2020).

But much of this case law is pre-TransUnion, and post-TransUnion, some courts have
questioned whether specific types of emotional harm (like confusion, frustration, stress, etc.)
suffice for standing purposes. See Pierre v. Midland Credit Mgmt., Inc., 29 F.4th 934, 939
(7th Cir. 2022); Laufer v. Arpan LLC, 29 F.4th 1268, 1272 (11th Cir. 2022) (holding that
“frustration and humiliation” were not sufficiently similar analogues to intentional or

negligent infliction of emotional distress); Pennell v. Glob. Tr. Mgmt., LLC, 990 F.3d 1041,
1045 (7th Cir. 2021) (holding that “stress and confusion,” “frustration,” and worry were
insufficient for standing); Adler v. Penn Credit Corp., 2022 WL 744031, at *9 (S.D.N.Y.
Mar. 11, 2022). Dissenting judges and lower courts have noted tension in the case law—with
some outright noting a circuit split on this issue. See Pierre, 29 F.4th at 953, 955 (Hamilton,

J., dissenting) (lamenting that the Seventh Circuit has rejected harms such as “anxiety, stress,
13See also Ben-Davies v. Blibaum & Assocs., P.A., 695 Fed. Appx. 674, 676-77 (4th
Cir. 2017) (per curiam) (holding that “emotional distress, anger, and frustration” were
sufficient to establish an injury in fact); Edeh v. Midland Credit Mgmt., Inc., 748 F.Supp.2d
1030, 1041 (D. Minn. 2010).
- 11 -
mental anguish and emotional distress” as a basis for Article III standing and noting a circuit
split on this issue); Pharms v. Nat’l Credit Sys., Inc., 2022 WL 2346623, at *5 (S.D. Ga. June
29, 2022) (citing Huff v. Telecheck Servs., Inc., 923 F.3d 458, 463 (6th Cir. 2019))

(discussing tension in case law) .14 This court notes, however, that this split does not appear
to be on whether emotional harm can qualify at all but whether certain types of emotional
harms—such as stress and confusion, which are seen as relatively insignificant—have a
suitable common law analogue. E.g., Laufer, 29 F.4th at 1272-73 (applying the TransUnion

analysis and concluding that “frustration and humiliation” did not have a “close relationship”
to intentional or negligent infliction of emotional distress).
The court need not resolve this tension today, however, because Vazzano offers an
alternate theory for standing of which there is an easier analysis. Vazzano contends that she
has provided evidence that she felt harassed by the unwanted November letter. This type of

harm, she contends, is similar to an intrusion upon seclusion harm recognized at common law
and is therefore sufficient to confer standing.
This theory has merit. TransUnion explicitly recognized the harms protected by the
intrusion upon seclusion tort as an “intangible harm.” TransUnion LLC, 141 S.Ct. at 2204.
Indeed, “[a]t common law, courts readily recognized a concrete injury arising from the tort

of intrusion upon seclusion—a tort protecting against defendants who intrude into the private
14Some courts have other interpretations of the state of the law as well. E.g., C.C. v.
Med-Data Inc., 2022 WL 970862, at *8 n.4 (D. Kan. Mar. 31, 2022) (“TransUnion
contemplates that allegations of emotional distress plus a risk of future harm may suffice to
confer standing.”).
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solitude of another.” Lupia, 8 F.4th at 1191 (citing Restatement (Second) of Torts
§ 652A(2)(a) (1977)). The question under TransUnion therefore is whether a reasonable jury
could find that the type of harm Vazzano allegedly suffered (receiving an unwanted letter)

has a “close relationship” to the type of harm protected by the common law tort of intrusion
upon seclusion (protecting against intrusion into private solitude). See TransUnion LLC, 141
S.Ct. at 2204.
Post-TransUnion, courts have answered this question “Yes.” Courts have held that

receiving an unwanted letter or unwanted phone call has a “close relationship” to the harm
posed by an intrusive invasion of privacy. Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 462
(7th Cir. 2020) (Barrett, J.) (“The harm posed by unwanted text messages is analogous to that
type of intrusive invasion of privacy.”); Lupia, 9 F.4th at 1191 (“Lupia suffered a similar
harm [to intrusion upon seclusion] when Medicredit 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.”); Chapman v. Nat’l Health Plans &
Benefits Agency, LLC, ___ F.Supp.3d ___, 2022 WL 3130225, at *5 (E.D. Mich. Aug. 4,
2022); Carter v. Capital Link Mgmt. LLC, 2022 WL 2705250, at *8 n.9 (N.D. Ala. July 12,
2022); Cross v. State Farm Mut. Auto. Ins. Co., 2022 WL 193016, at *7 (W.D. Ark. Jan. 20,

2022); see also Cranor v. 5 Star Nutrition, L.L.C., 998 F.3d 686, 690 (5th Cir. 2021)
(suggesting in another context that unwanted messages present privacy harms); Glasser v.
Hilton Grand Vacations Co., 948 F.3d 1301, 1306 (11th Cir. 2020); St. Pierre v.

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Retrieval-Masters Creditors Bureau, Inc., 898 F.3d 351, 357-58 (3d Cir. 2018).15 In sum,
a reasonable jury could find that Vazzano suffered a harm—invasion of privacy and
harassment by receiving an unwanted letter—with a “close relationship” to the tort of

intrusion upon seclusion, which protected against similar harms at common law.16
RMS responds that the tort of intrusion upon seclusion did not recognize de minimis
intrusions—such as telephoning the plaintiff two or three times. While this may be so,
TransUnion made clear that Congress has the power to “elevate to the status of legally

cognizable injuries concrete, de facto injuries that were previously inadequate in law.”
TransUnion, 141 S.Ct. at 2205 (quoting Spokeo, 578 U.S. at 341). In other words, as then-
Judge Barrett wrote for the Seventh Circuit in Gadelhak (which was cited in TransUnion),
a slight injury, which of itself may not be enough under the common law—but is the same
type of harm recognized at common law—is sufficient for Article III purposes:

The Eleventh Circuit treated the injury in its case as abstract
partly because common law courts generally require a much
more substantial imposition—typically, many calls—to support
liability for intrusion upon seclusion. But when Spokeo instructs
us to analogize to harms recognized by the common law, we are
meant to look for a “close relationship” in kind, not degree. In
other words, while the common law offers guidance, it does not
stake out the limits of Congress’s power to identify harms
deserving a remedy. Congress’s power is greater than that: it
15The court must also consider the “judgment of Congress” in determining standing.
Spokeo, 578 U.S. at 340. And “[i]n enacting the FDCPA, Congress recognized that abusive
debt-collection practices may intrude on another’s privacy interests.” Lupia, 8 F.4th at 1192.
16This is so despite the fact that RMS only sent one letter to Vazzano. See Lupia, 9
F.4th at 1191.
- 14 -
may “elevat[e] to the status of legally cognizable injuries
concrete, de facto injuries that were previously inadequate in
law.” A few unwanted automated text messages may be too
minor an annoyance to be actionable at common law. But such
texts nevertheless pose the same kind of harm that common law
courts recognize—a concrete harm that Congress has chosen to
make legally cognizable.
Gadelhak, 950 F.3d at 462 (emphasis and alteration in original) (citations omitted); see also
Lupia, 8 F.4th at 1192 (“[T]hough 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.”); Cross, 2022 WL 193016, at *5
(“[The court] is meant to look for whether the harm alleged bears a close relationship to the
kind of harm redressed by common law torts, not the degree or severity.”).
Accordingly, the court holds that a reasonable jury could find that Vazzano suffered
an injury-in-fact, which satisfies the requirement that she has constitutional and prudential
standing.
IV
The court next considers Vazzano’s motion for partial summary judgment on her
§ 1692c(c) claim and RMS’s cross-motion for summary judgment on the same claim.
A

Vazzano posits that she gave RMS written notice of her refusal to pay a debt. This
written notice, Vazzano contends, triggered protections under § 1692c(c), and nothing in her
letter authorized RMS’s subsequent November letter. Vazzano maintains that the November
letter did not fall into any of the exceptions to the no-contact requirement of § 1692c(c). And
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she contends that it is clear that the November letter was seeking to collect a debt because
it described ways for Vazzano to pay.
RMS responds that Vazzano’s written notice did not contain “an unequivocal demand

to cease all communications.” D. Mot. (ECF No. 49) at 13 (emphasis in original). Rather
it was a “dispute letter,” id., sent “in accordance with § 1692g(b).” Id. at 14. RMS posits that
its November letter was a direct response to Vazzano’s written notice, which included a
dispute of the debt. According to RMS, if the court were to hold otherwise—i.e., that RMS

could not send a verification letter—then RMS could not continue collecting the debt at all
and would have been in a “frozen state.” Id. at 16.17
B
Section 1692c(c) provides that “[i]f a consumer notifies a debt collector in writing that
the consumer refuses to pay a debt . . . the debt collector shall not communicate further with

the consumer with respect to such debt” except in limited circumstances not applicable
here.18 In Vazzano’s letter to RMS, she stated that she “refuse[d] to pay” the debt. P. App.

17RMS does not contend that the November letter fell within any of the permitted
exceptions in § 1692c(c).
18The parties do not dispute the other elements of Vazzano’s FDCPA claim. “[T]o
prevail on an FDCPA claim, [Vazzano] must prove the following: (1) [s]he has been the
object of collection activity arising from a consumer debt; (2) the defendant is a debt
collector defined by the FDCPA; and (3) the defendant has engaged in an act or omission
prohibited by the FDCPA.” Hunsinger v. SKO Brenner Am., Inc., 2013 WL 3949023, at *2
(N.D. Tex. Aug. 1, 2013) (Fitzwater, C.J.) (first alteration in original) (quotation omitted).
The court holds that Vazzano has provided sufficient evidence to satisfy the first two
elements: that she was the object of debt collection activity, and RMS is a debt collector as
defined by the FDCPA.
- 16 -
(ECF No. 47) at 7. According to Vazzano, she was protected under § 1692c(c) from further
communications by RMS. See § 1692c(c).
RMS disagrees. It contends that Vazzano’s letter had no “unqualified” refusal to pay

or “unequivocal demand to cease all communications.” D. Mot. (ECF No. 49) at 13
(emphasis in original).19 These arguments fail.
First, RMS does not specify what an “unqualified” refusal is—and it is hard to see
how much more clear Vazzano could have been beyond saying that she “refuse[d] to pay.”

P. App. (ECF No. 47) at 7; see Cruz v. Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir.
2012) (holding that debt collector’s letter violated § 1692c(c) after plaintiff stated that “I
dispute this debt and refuse to pay”); Bishop v. I.C. Sys., Inc., 713 F.Supp.2d 1361, 1367-68
(M.D. Fla. 2010); Flores v. Collection Consultants of Cal., 2015 WL 4254032, at *5 (C.D.
Cal. Mar. 20, 2015) (“Plaintiff’s letter clearly stated ‘I will not pay this debt.’ It was not

ambiguous on its face.” (citation omitted)). And, second, § 1692c(c) does not require a
statement that Vazzano wanted to cease communications. See § 1692c(c) (permitting refusal-
to-pay language to trigger protection from further communication).
In the alternative, RMS also contends with some force that, even if §1692c(c) was

19To support its argument, RMS plucks language from this court’s prior memorandum
opinion and order, Vazzano v. Receivable Management Services, LLC (Vazzano I), 2021 WL
3742618 (N.D. Tex. Aug. 24, 2021) (Fitzwater, J.), where the court stated that the “March
5, 2020 letter contains no request that RMS stop contacting Vazzano.” Id. at *2. But the
court’s statement was in response to Vazzano’s contention (contained in an earlier complaint
with different allegations) that she demanded that RMS stop contacting her. See id.
Vazzano’s current theory relies on the “refuse to pay” language in her letter.
- 17 -
triggered, RMS did not violate § 1692c(c) with its November letter. It contends that
Vazzano’s statement in her letter (that she disputed the debt) permitted RMS to send
verification of Vazzano’s debt to her pursuant to § 1692g(b)—because if it could not do so,

it would be in a “frozen state.”
This argument proceeds as follows: § 1692g(b) provides that “[i]f the consumer
notifies the debt collector . . . that the debt, or any portion thereof, is disputed . . . the debt
collector shall cease collection of the debt . . . until the debt collector obtains verification of

the debt . . . .” Here, Vazzano stated in the March 5, 2020 letter: “[p]lease be advised that
alleged debt is hereby being disputed, your client is fully aware that no such funds are owed
to them, thus I refuse to pay.” P. App. (ECF No. 47) at 7. So, RMS argues, until RMS sent
Vazzano a verification of the debt, it could not continue collection of the debt (i.e., it could
not sue for the debt). But there is a problem: under § 1692c(c), RMS was precluded from

communicating with Vazzano because she had stated that she “refuse[d] to pay” the debt.
Id. RMS therefore found itself in a bind: it could not collect the debt until it sent Vazzano
verification, but it also could not send the verification.
Other courts have recognized this potential predicament. E.g., Marino v. Hoganwillig,
PLLC, 910 F.Supp.2d 492, 496 (W.D.N.Y. 2012) (“To hold [that the debt collector could not

send a verification of the debt] would force HoganWillig into a frozen state where it could
not seek to collect the debt because compliance with Section 1692g(b) would violate Section
1692c(c).”). And in response, some have identified an implicit waiver (despite § 1692c(c))
that allows the debt collector to “respond” to the debtor’s dispute of the debt with verification
- 18 -
of the debt. See Recker v. Cent. Collection Bureau, Inc., 2005 WL 2654222, at *4 (S.D. Ind.
Oct. 17, 2005) (“Because verification is a statutorily required activity in order to resume
collection activities, verification activities could be communications allowed implicitly under

exception 1692c(c)(3).”).20
Because RMS’s arguments fail either way, the court will assume arguendo, as it did
in Vazzano v. Receivable Management Services, LLC (Vazzano II), 2021 U.S. Dist. LEXIS
217502 (N.D. Tex. Nov. 10, 2021) (Fitzwater, J.), that the FDCPA permits a debtor to waive

protections under § 1692c(c), id. at *6, and will assume arguendo that a debtor’s statement
that the “alleged debt is hereby being disputed” is an implicit waiver of § 1692c(c), allowing
the debt collector to send verification of the debt. But even if RMS was permitted to send
Vazzano a verification of the debt, a reasonable jury could find that the November letter went
beyond that.

Some illustrations show why. A verification letter including one sentence offering
to discuss payment options does not exceed simply verifying the debt. For example, in Duby
v. Shermeta, Adams & Von Allmen, P.C., 2012 WL 6705413 (E.D. Mich. Dec. 26, 2012), the

20Not all courts agree there is true tension here. See Schultz v. Sw. Credit Sys., LP,
2017 WL 11457912, at *10 (N.D. Iowa Oct. 13, 2017) (stating that debt collector could
comply with both § 1692c(c) and § 1692g(b) by “(1) completely cutting off communications
and abandoning collection of the debt; (2) sending the verification pursuant to § 1692g
without an accompanying demand for payment, as discussed above; or (3) sending the
verification pursuant to § 1692g while making a communication permissible under
§ 1692c(c)(1)-(c)(3)” (citations omitted)); Crumel v. Kross, Lieberman & Stone, Inc., 2015
WL 1565432, at *5-6 (E.D.N.C. Apr. 8, 2015) (same). This court takes no position on this
issue at this time.
- 19 -
plaintiff conceded that the debt collector could send a verification letter, but argued that one
sentence in the cover letter that accompanied the verification, which offered “to discuss a
payment plan or settlement of this matter,” went beyond verification of the debt. Id. at *3.

The Duby court, however, held that the letter did not violate § 1692c(c) because the letter
was merely for verification purposes. Id. at *5.21
On the other hand, a letter containing a demand for payment and a statement that it
is seeking to collect the debt exceeds simply verifying the debt. In Schultz v. Southwest

Credit System, LP, 2017 WL 11457912 (N.D. Iowa Oct. 13, 2017), the plaintiff sent a letter
stating that he disputed the debt and refused to pay. Id. at *3. The letter also requested
validation. Id. The debt collector responded with a letter stating “[p]lease remit the balance
in full to our office upon receipt of this letter” and “[t]his is an attempt to collect a debt by
a debt collector.” Id. The court held that whatever waiver was permitted by the plaintiff’s

dispute of the debt was exceeded by the request for payment and statement that the debt
collector was attempting to collect a debt. Id. at *9-10 (“[T]he inclusion of the request to
‘remit the balance in full’ to SWC, alongside the warning that the May 13, 2015 Letter was
‘an attempt to collect a debt by a debt collector,’ outstripped the waiver that SWC
received.”).22

21See also Abbott v. Second Round Sub, LLC, 2017 WL 4296270, at *2 (W.D.N.Y.
Sept. 28, 2017) (“[T]his Court can discern no language in Second Round’s February 2017
Letter that seeks to collect on the debt or otherwise violates § 1692c(c).”); Flores, 2015 WL
4254032, at *7.
22See also Marino, 910 F.Supp.2d at 497.
- 20 -
Here, the November letter contained the debt verification, offered ways for Vazzano
to pay her debt (by mail or phone), and stated that “[w]e are a debt collector attempting to
collect a debt and any information obtained will be used for that purpose.” P. App. (ECF No.

47) at 12. It was also sent nearly six months after Vazzano disputed the debt. This letter falls
somewhere in between the letters in Schultz and Duby. This case is similar to Schultz in at
least one way—in both cases the debt collector sent a letter stating “[t]his is an attempt to
collect a debt by a debt collector.” Schultz, 2017 WL 11457912, at *3. RMS’s letter,
however, does not contain the demand for payment “remit the balance in full” that was

present in Schultz. Id. at *9. But what it does contain—a discussion of ways to pay,
requirements for what to do with the payment—goes beyond a simple offer “to discuss a
payment plan or settlement of this matter,” as in Duby. See Duby, 2012 WL 6705413, at *3.
Nevertheless, the court can conclude that RMS’s letter violated § 1692c(c) as a matter
of law, with no need to submit a fact question to the jury to resolve.23 If RMS is correct that

Vazzano’s dispute of the debt was an implicit waiver authorizing RMS to send verification
of the debt, RMS went beyond the waiver. As discussed in Vazzano II, courts that have
recognized waiver in the context of the FDCPA have held that the waiver is narrowly
construed to the information requested. Vazzano II, 2021 U.S. Dist. Lexis 217502 at *9 n.11

23Although the letter’s infractions “occurred only once and amounts to nothing more
than one sentence of an otherwise-permissible communication, the court recognizes that the
‘FDCPA is a strict liability statute and a consumer has only to prove one violation in order
to trigger liability.’” Crumel, 2015 WL 1565432, at *6 (quoting Bradshaw v. Hilco
Receivables, LLC, 765 F.Supp.2d 719, 725 (D. Md. 2011)).
- 21 -
(“[C]ourts limit the waiver to the information requested.”) (collecting cases); Crumel, 2015
WL 1565432, at *5 (“[P]laintiff’s request for verification constituted a waiver of his cease
communication directive, but only with respect to the verification information.”). And here,

RMS plainly included more than verification of the debt in the November letter: “verification
of a debt involves nothing more than the debt collector confirming in writing that the amount
being demanded is what the creditor is claiming is owed . . . .” Chaudhry v. Gallerizzo, 174
F.3d 394, 406 (4th Cir. 1999). So even if RMS was permitted to contact Vazzano with a
verification, the inclusion of payment options, procedures for how to pay, requirements for

the payment, and a statement of “[w]e are . . . attempting to collect a debt” plainly went
beyond any waiver Vazzano gave to receive verification of the debt.24
Accordingly, the court holds that Vazzano has met her heavy burden to show that no
genuine issues of material fact exist, and that she is entitled to partial summary judgment
establishing her § 1692c(c) claim.

V
The court next considers RMS’s motion for summary judgment on Vazzano’s § 1692f
claim.
A
RMS maintains that Vazzano cannot prove one element of her § 1692f(1) claim: that

24Moreover, the November letter contained similar information as RMS’s February
letter, which is undisputedly a debt collection letter. Compare P. App. (ECF No. 47) at 4,
with id. at 12; see D. Mot. (ECF No. 49) at 2 (conceding that RMS sent a “collection letter”
to Vazzano in February).
- 22 -
the debt claimed by RMS was invalid. RMS contends that it has provided evidence that
Vazzano did owe a valid debt. Vazzano responds that there is a fact issue on this question
because she has provided evidence that she did not owe the debt.

B
The court concludes that there is a fact issue that precludes summary judgement on
Vazzano’s § 1692f claim. Section 1692f provides that a debt collector violates the FDCPA
if it collects or attempts to collect any amount of money “unless such amount is expressly
authorized by the agreement creating the debt or permitted by law.” RMS contends that it

provided evidence that the amount it sought to collect was expressly authorized by the
agreement between Progressive and Vazzano for an insurance policy. Indeed, RMS has
adduced evidence from a Progressive employee that Vazzano paid the first installment and
failed to pay the second—thereby incurring the relevant debt. Vazzano, however, has also
produced evidence she did not pay the first installment. First, she stated as much in her

deposition. And, second, she has provided evidence of a cancellation letter that Progressive
sent Vazzano on November 29, 2019, stating that “you no longer have insurance with us,
effective November 29, 2019 . . . .” P. App. (ECF No. 47) at 18.
Accordingly, because there is evidence both that Vazzano paid, and did not pay, the
initial installment for the Renewal Policy (which would have triggered the obligation to pay

further installments), there is a genuine issue of material fact that precludes the entry of

- 23 -
summary judgment. See Anderson, 477 U.S. at 248.25 The court therefore denies RMS’s
motion for summary judgment on Vazzano’s § 1692f claim.
VI

Finally, the court turns to RMS’s motion for summary judgment on Vazzano’s
TDCPA claims.
A
RMS contends that it is entitled to summary judgment on Vazzano’s TDCPA claims
because she has not shown actual damages. Vazzano responds that she has provided

evidence of mental anguish damages.
B
“[T]he FDCPA and TDCPA are isomorphic (that is, they share the same general
structure but are identified by different names) . . . .” Fiddick v. Bay Area Credit Serv., LLC,
2019 WL 1858824, at *4 (S.D. Tex. Apr. 25, 2019). “The conduct prohibited under the

[TDCPA] is coextensive with that prohibited under the FDCPA, at least insofar as the same
actions that are unlawful under the FDCPA are also unlawful under the [TDCPA].” Ortiz
v. Enhanced Recovery Co., 2019 WL 2410081, at *6 (N.D. Tex. June 6, 2019) (Fitzwater,
J.) (alterations in original) (internal quotation marks and citation omitted). When neither

25“When this court denies rather than grants summary judgment, it typically does not
set out in detail the evidence that creates a genuine issue of material fact.” Valcho v. Dall.
Cnty. Hosp. Dist., 658 F.Supp.2d 802, 812 n.8 (N.D. Tex. 2009) (Fitzwater, C.J.) (citing
Swicegood v. Med. Protective Co., 2003 WL 22234928, at *17 n.25 (N.D. Tex. Sept. 19,
2003) (Fitzwater, J.)).
- 24 -
party offers any authority for interpreting the TDCPA provisions at issue, the court will rule
consistently on the same grounds for the TDCPA as it does for the FDCPA. Id.26
RMS contends that, under the TDCPA, Vazzano must show actual damages and the
record establishes there were no damages.27 The court denies RMS’s motion for summary

judgment. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) (“[M]ental anguish
damages will survive a legal sufficiency challenge when the plaintiffs have introduced direct
evidence of the nature, duration, and severity of their mental anguish . . . .”).28 Vazzano has
presented evidence that she suffered from panic attacks, stress, anxiety, and an elevated heart

rate. She has also produced evidence that she has suffered disruptions of her sleep and
needed prescription medication to control her blood pressure. She has also offered proof that
she suffered disruption in sleep “almost nightly” and suffered her other symptoms
sporadically since November 2020. The court therefore holds that a reasonable jury could
find that Vazzano suffered actual damages due to mental anguish. See Anderson v. Durant,

550 S.W.3d 605, 620 (Tex. 2018) (determining plaintiff had shown mental anguish damages
26To the extent RMS argues that it should be awarded summary judgment on
Vazzano’s TDCPA claim for the same reasons that entitle it to summary judgment on
Vazzano’s FDCPA claim, this argument fails because the court has rejected RMS’s
arguments for summary judgement on Vazzano’s FDCPA claims. See supra § V.
27Because it is not in dispute, the court assumes arguendo that a plaintiff under the
TDCPA or FDCPA must show actual damages.
28The court notes that Vazzano’s deposition is at times somewhat unclear regarding
the extent to which some of her emotional distress is attributable to the November letter
rather than to other causes But, as discussed, “the Court cannot hold that no reasonable jury
could award [Vazzano] damages for emotional distress. Any such damages are likely to be
very small . . . .” Edeh, 748 F.Supp.2d at 1042.
- 25 -
where plaintiff had trouble sleeping, anxiety, worry, lack of focus, and otherwise was
disrupted in his life); Reyelts v. Cross, 968 F.Supp.2d 835, 846-47 (N.D. Tex. 2013)
(Cureton, J.) (determining that plaintiff had demonstrated mental anguish damages when she
showed, inter alia, that she felt devastated and afraid, had trouble sleeping, had stomach pain,
increased medication, and had less money for son’s wedding), aff'd, 566 Fed. Appx. 316 (Sth
Cir. 2014).”
* * *

Accordingly, for the reasons explained, the court grants Vazzano’s motion for partial
summary judgment and denies RMS’s motion for summary judgment.”
SO ORDERED.
August 12, 2022.

SIDNEN A. lth sk
SENIOR JUDGE

” As noted, see supra note 25, “[w]hen this court denies rather than grants summary
judgment, it typically does not set out in detail the evidence that creates a genuine issue of
material fact.” Valcho, 658 F.Supp.2d at 812 n.8 (citing Swicegood, 2003 WL 22234928, at
n.25).
*°The court overrules Vazzano’s objection to the Waddell Declaration as moot.
- 26 -

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10451761. Public record. Not legal advice.