HOWARD v. LVNV FUNDING, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TRAVIS HOWARD and VANESSA

HOWARD, individually and on behalf of all

3:19-CV-00093-CCW

others similarly situated

Plaintiffs,

v.

LVNV FUNDING, LLC, RESURGENT

CAPITAL SERVICES, LP,

Defendants.

OPINION AND ORDER

This case has been pending since June 2019 and was reassigned from the Honorable Kim

R. Gibson to the undersigned in April 2025. ECF Nos. 1, 119. In March 2023, Judge Gibson

certified the case as a class action pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of

Civil Procedure, ECF No. 109, and then approved a plan for providing notice to the class members,

ECF No. 113. Plaintiffs’ counsel subsequently submitted a status report indicating that notice had

been provided to the class. ECF No. 114. However, the status report also raised the issue of

whether the Court could retain jurisdiction over this case in light of the United States Court of

Appeals for the Third Circuit’s decision on Article III standing in Huber v. Simon’s Agency, Inc.,

84 F.4th 132 (3d Cir. 2023), which was decided after Judge Gibson certified the class in this case.

Id. Plaintiffs requested that the Court set a briefing schedule on the issue of their standing. Id.

Judge Gibson did so, ECF No. 115, and the parties fully briefed the issue, but Judge Gibson had

not issued a decision as of the time the case was reassigned. ECF Nos. 116, 117, 118.

After the case was reassigned, the Court directed the parties to file a joint status report

regarding proposed next steps in the case. ECF No. 121. In their status report, the parties advised

that “the Court should resolve the standing issue before further steps are taken.” ECF No. 124 at

2. Having considered the parties’ briefing on the issue of Plaintiffs’ standing and for the reasons

discussed below, the Court concludes that named Plaintiffs Travis Howard and Vanessa Howard

have not alleged an injury-in-fact sufficient to vest them with Article III standing. Accordingly,

the Court will DISMISS this case WITHOUT PREJUDICE.

I. Factual Background

This case involves claims for alleged violations of the Fair Debt Collections Practices Act

(“FDCPA”), 15 U.S.C. §§ 1692 et seq., and arises from a proof of claim (“POC”) filed by

Defendants LVNV Funding, LLC (“LVNV”) and Resurgent Capital Services, LP, (“Resurgent”)

in the Howards’ Chapter 13 bankruptcy case. ECF No. 97 ¶¶ 11–13, 45–49. The POC listed

$309.36 as the amount of a debt owed by the Howards to Credit One Bank. Id. ¶¶ 14–15.

According to the POC, the debt consisted entirely of principal and did not include any interest or

fees. Id. ¶¶ 16–18. But according to the Howards, the POC was false, misleading, and/or deceptive

because the reported amount of the debt actually included fees and interest, and therefore the POC

overstated the debt’s principal. See id. ¶¶ 21–23. The Howards allege that “by falsely stating no

interest or fees were included in a proof of claim,” LVNV and Resurgent violated 15 U.S.C.

§ 1692e and “denied Plaintiffs and the class members information Congress deemed material for

purposes of bankruptcy proceedings, needlessly increased the burden and expense of Plaintiffs and

the class members’ bankruptcies, and created an undue burden for the court system.” Id. ¶¶ 31,

33, 48.

The certified Rule 23 class consists of:

All individuals who filed for bankruptcy in Pennsylvania, had Defendants file a

proof of claim between June 6, 2018, to December 31, 2018, and had Defendants

represent in the claim that the debt underlying the claim was composed entirely of

principal, even though Defendants held an account statement, data string, or other

document that showed the debt included interest and/or fees, in addition to

principal.

ECF No. 109 at 20.

II. Legal Standard

The standing doctrine, in Article III, section 2 of the Constitution, limits the judicial power

of the United States to “Cases” and “Controversies.” Susan B. Anthony List v. Driehaus, 573 U.S.

149, 157 (2014). Thus, federal courts may “resolve only ‘a real controversy with real impact on

real persons.’” TransUnion, 594 U.S. at 424 (quoting Am. Legion v. Am. Humanist Assn., 588

U.S. 29, 87 (2019)). A “real controversy” exists where the plaintiff (1) has suffered an “injury in

fact,” (2) that is “fairly traceable” to the defendant’s challenged conduct, and (3) is “likely to be

redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). If

any of these elements is missing, then there is no case or controversy, and the court lacks

jurisdiction over the matter. Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560–62 (1992). “The party

invoking federal jurisdiction bears the burden of establishing [Article III standing].” Id. at 561.

And they must do so “with the manner and degree of evidence required at the successive stages of

the litigation.” Id.

“[F]ederal courts have an [independent] obligation to assure [them]selves of litigants’

standing under Article III,” and to raise the issue sua sponte if necessary. Wayne Land & Min.

Grp., LLC v. Delaware River Basin Comm’n, 959 F.3d 569, 574 (3d Cir. 2020) (quotation omitted).

In the context of a class action case, “the class’s standing turns on the named plaintiffs’ standing.”

Lewis v. Gov’t Emps. Ins. Co., 98 F.4th 452, 459 (3d Cir. 2024). Where the named plaintiff lacks

standing, the case must be dismissed. See id. at 461.

Injury-in-fact is the “first and foremost of standing’s three elements.” Spokeo, 578 U.S. at

338 (cleaned up). To satisfy this element, “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, not conjectural or hypothetical.’” Id. at 339 (quoting Lujan, 504 U.S. at 560). An injury

is “particularized” if it “affect[s] the plaintiff in a personal and individual way.” Id. (quoting Lujan,

504 U.S. at 560 n.1). And an injury is “concrete” if it is “real, and not abstract.” Id. at 340 (internal

quotation marks omitted). Importantly, a plaintiff does not “automatically satisf[y] the injury-in-

fact requirement whenever a statute grants [him] a statutory right and purports to authorize [him]

to sue to vindicate that right.” Id. at 341. Rather, “[o]nly those plaintiffs who have been concretely

harmed by a defendant’s statutory violation may sue that private defendant over that violation in

federal court.” TransUnion, 594 U.S. at 414.

Both tangible and intangible injuries may support standing. On the one hand, “traditional

tangible harms”—e.g., monetary loss, physical injury—“readily qualify as concrete injuries under

Article III.” TransUnion, 594 U.S. at 425. On the other, intangible harms qualify only in certain

circumstances. See id. One way is if the intangible harm bears a “close relationship to harms

traditionally recognized as providing a basis for lawsuits in American courts.” Id. Thus, a plaintiff

may establish standing by identifying “a close historical or common-law analogue for their

asserted injury,” though they need not point to “an exact duplicate.” Id. A plaintiff may also

establish standing by asserting an “informational” harm, that is, by alleging that they “‘failed to

receive . . . information’ to which [they were] legally entitled.” Kelly v. RealPage Inc., 47 F.4th

202, 211 (3d Cir. 2022) (quoting TransUnion, 594 U.S. at 441). But to assert a cognizable

informational harm, a plaintiff must allege that the failure to receive information resulted in

“adverse effects or other downstream consequences, and such consequences have a nexus to the

interest Congress sought to protect” in creating a right to the information. Id. at 214 (cleaned up).

III. Discussion

In their briefing on standing, the Howards assert two theories of how they suffered an

injury-in-fact. First, they argue that they have standing under the United States Supreme Court’s

decision in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), because they suffered an injury

“in precisely the form the [FDCPA] was intended to guard against.” ECF No. 116 at 3 (citing

Havens, 455 U.S. at 373–74). Second, they argue that they have standing because the POC

misrepresented the principal amount of their debt, thereby inflicting a cognizable informational

harm by “frustrat[ing] [their] ability to make informed decisions.” Id. at 5. LVNV and Resurgent

respond that the Howards do not have standing under Havens but concede that “if the balance

listed in the POC was not comprised solely of principal,” then the Howards “have standing at this

stage of the litigation for their alleged ‘informational harm.’” ECF No. 117 at 3–4. Thus, LVNV

and Resurgent essentially take the position that whether the Howards have suffered an

informational harm is intertwined with the merits of their claims. Id. For the reasons discussed

below, the Court concludes that neither of the Howards’ theories of injury-in-fact is sufficient to

convey standing.

A. The Court Declines to Extend Havens to the Instant Case

The Howards first argue that the United States Supreme Court’s decision in Havens

conclusively establishes their standing. ECF No. 116 at 3–4; ECF No. 118 at 1–2. In Havens, the

Supreme Court considered whether a “tester” plaintiff had standing to assert a claim for a violation

of § 804(d) of the federal Fair Housing Act (“FHA”). 455 U.S. at 373–74. That statute makes it

“unlawful for an individual or firm . . . [t]o represent to any person because of race, color, religion,

sex, or national origin that any dwelling is not available for inspection, sale, or rental when such

dwelling is in fact so available.” Id. at 373 (quoting 42 U.S.C. § 3604(d)). The plaintiff in Havens,

who was African American, alleged that the defendant violated the FHA by falsely telling her “on

four different occasions that apartments were not available . . . while informing white testers that

apartments were available.” Id. at 374. The Supreme Court held that the plaintiff had standing to

sue for a violation of the FHA, even though she “may have approached the [defendant] fully

expecting that [she] would receive false information, and without any intention of buying or

renting a home.” Id. As the Supreme Court explained, because the plaintiff had been “the object

of a misrepresentation made unlawful under [the FHA],” she had “suffered injury in precisely the

form the statute was intended to guard against, and therefore ha[d] standing to maintain a claim.”

Id. at 373–74.

The Howards argue that the same logic underlying Havens supports their standing because

“a debtor ‘who has been the object of a misrepresentation made unlawful under [the FDCPA] has

suffered injury in precisely the form the [FDCPA] was intended to guard against.” ECF No. 113

at 3 (quoting Havens, 455 U.S. at 373–74). LVNV and Resurgence respond that this theory of

standing fails because it is in tension with more recent decisions from the Supreme Court and the

Third Circuit. ECF No. 117 at 3–4. Ultimately, however, the Court need not resolve any such

tension because Havens is distinguishable from the instant case and the Court will not extend its

holding beyond its context.

Havens was a case brought under the FHA, not the FDCPA, and involved the type of false

statement the FHA specifically made unlawful—a representation to the plaintiff, on account of her

race, that housing was unavailable when in fact it was available. Havens, 455 U.S. at 373–74.

While the Third Circuit has not spoken on Havens’ applicability to FDCPA cases, other Circuits

have distinguished Havens and declined to extend it to the FDCPA context. For example, in

rejecting the same theory of standing pressed by the Howards here, the Eleventh Circuit Court of

Appeals correctly observed that “the [FHA] does not seek to vindicate some amorphous interest

in receiving [truthful] information. Instead, it protects the weighty interest in not being subjected

to racial discrimination, which can inflict a concrete injury on anyone who ‘personally’

experiences it.” Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 1005 (11th Cir. 2020)

(declining to apply Havens to a FDCPA case); see also Casillas v. Madison Ave. Assocs., Inc.,

926 F.3d 329, 338 (7th Cir. 2019) (Barrett, J.) (declining to apply Havens to a FDCPA case for the

same reason as Trichell); TransUnion, 594 U.S. 413 at 426–27, 441–42 (citing Trichell and

Casillas with approval). In other words, the injury suffered by the tester plaintiff in Havens “is

obviously neither the harm [the Howards] claim[] nor the one that the [FDCPA] protects against,”

Casillas, 926 F.3d at 338, because—unlike the Howards—the plaintiff in Havens was not just

given false information, but suffered a concrete injury in the form of racial discrimination

prohibited by the FHA.1 Thus, contrary to the Howards’ contention, it is not clear that Havens

“has direct application in this case.” ECF No. 118 at 1 (quoting Agostini v. Felton, 521 U.S. 203,

237 (1997)).

The Howards attempt to distinguish Trichell and Casillas by arguing that, unlike in this

case, the defendants in Trichell and Casillas did not “provide[] false and inaccurate information”

to plaintiffs, and therefore the plaintiffs’ injuries in those cases “were not the types of injuries the

FDCPA was intended to guard against.” ECF No. 116 at 4. This argument is unconvincing. The

FDCPA was enacted to guard against many kinds of “abusive debt collection practices by debt

1 The Howards argue that the distinctions drawn between the FHA and FDCPA in Trichell and Casillas are

“immaterial” because “Havens clearly stated that the tester plaintiff had standing because he suffered injury in

precisely the form the FHA ‘was intended to guard against,’” not because the FHA was an anti-discrimination statute.

ECF No. 116 at 4 (quoting Havens, 455 U.S. at 373–74). But this ignores that the Havens court recognized that the

FHA was intended to guard against “discriminatory [mis]representations,” Havens, 455 U.S. at 374, which is not what

“the [FDCPA] protects against,” Casillas, 926 F.3d at 338.

collectors,” 15 U.S.C. § 1692(e), and accordingly renders debt collectors liable for “fail[ing] to

comply with any provision of” the FDCPA, 15 U.S.C. § 1692k(a) (emphasis added), including the

provisions at issue in Trichell and Casillas. It would make little sense for the FDCPA to create

liability for the violations alleged in Trichell and Casillas if it was not intended to guard against

injuries caused by those violations.

In sum, the Howards have not established that Havens dictates the outcome in this case.

And the Supreme Court itself has recently cautioned, albeit on the separate issue of organizational

standing, that “Havens was an unusual case” and it “has been careful not to extend the Havens

holding beyond its context.” Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 396

(2024). The Court will follow that example here and declines to extend Havens beyond its context

to find that the Howards have Article III standing in this FDCPA case simply because the POC

allegedly omitted the amount of the Howards’ debt consisting of interest and fees.

B. The Howards Have Not Alleged a Plausible Informational Injury

Regardless of whether they have standing under Havens, the Howards assert that they have

suffered an informational injury sufficient to vest them with standing. Specifically, they argue that

by providing “false and inaccurate information about their debt, and by failing to provide reliable

and truthful information, Defendants subjected [them] to an unlawful collection practice and

necessarily frustrated [their] ability to make informed decisions.” ECF No. 116 at 5. Thus, the

Howards claim they have standing because they “were denied information they were entitled to

receive,” and “that denial has a direct nexus to the purpose of the FDCPA.” Id. For their part,

LVNV and Resurgence concede that if “the balance listed in the POC did not consist solely of

principal,” then the Howards have sufficiently alleged an informational injury. ECF No. 117 at 2.

In other words, LVNV and Resurgence contend that the Howards’ standing depends on whether

their claims have any merit at all, and if they do have merit, then the Howards also have standing.

Id. at 6. But this concession is premised on LVNV and Resurgence’s belief that “where the

defendant is legally required to provide certain information, its failure to do so, alone, confers

standing.” Id. at 4. That is incorrect. And applying the correct standard, the Court concludes that

the Howards have not alleged a cognizable informational injury.

“A plaintiff asserting informational injury must show ‘(1) the omission of information to

which [she] claim[s] entitlement, (2) adverse effects that flow from the omission, and (3) [a] nexus

to the concrete interest Congress intended to protect’ by requiring disclosure of the information.”

George v. Rushmore Serv. Ctr., LLC, 114 F.4th 226, 236 (3d Cir. 2024) (quoting Kelly, 47 F.4th

at 214). While the parties in this case focus on the first and third elements, the second element is

essential. Thus, in George the Third Circuit found no informational harm resulting from an

omission in a collection letter2 because “[n]othing in the complaint indicate[d] that [the plaintiff]

could not pay her debt as a result of the letter, that the omission caused downstream financial

consequences, or that [the plaintiff] suffered distress.” George, 114 F.4th at 236. In contrast, in

Kelly the Third Circuit found cognizable informational harms where the omission of information

in the plaintiffs’ credit reports3 rendered them unable to correct errors in those credit reports, which

in turn resulted in denial of plaintiffs’ housing applications and emotional distress, among other

consequences. Kelly, 47 F.4th at 214.

Here, even if the POC did omit the amount of the Howards’ debt that consisted of interest

and fees, the Howards have not identified any downstream consequence or adverse effect flowing

from that omission. Rather, the only “adverse effect” cited by the Howards is that “by failing to

2 The collection letter at issue in George allegedly omitted the identity of the creditor to whom the debt was owed.

George, 114 F.4th at 230.

3 In Kelly, the omitted information was the source material relied on in including erroneous disclosures in the plaintiffs’

credit reports. Kelly, 47 F.4th at 208, 214.

provide reliable and truthful information, [LVNV and Resurgence] . . . necessarily frustrated

Plaintiffs’ ability to make informed decisions.” ECF No. 116 at 5. But having their ability to

make informed decisions generically “frustrated” is not enough to give the Howards standing. If

it was, then Kelly’s second prong would have little purpose because every omission of required

information would be actionable. Cf. George, 114 F.4th at 236 n.12 (declining to infer adverse

effects that would vitiate Kelly’s second prong). Furthermore, the Second Amended Complaint

alleges no downstream consequence or adverse effect flowing from the alleged omission of

information in the POC. See generally ECF No. 97. Instead, it alleges simply that the Howards

were “denied [] the information necessary to evaluate Defendants’ proof of claim filings.” Id.

¶ 31. The only other allegation in the Second Amended Complaint that suggests a downstream

consequence to the Howards is that the omission in the POC “needlessly increased the burden and

expense of Plaintiffs and the class members’ bankruptcies.” Id. ¶ 33. But this allegation is

conclusory and fails to establish the Howards’ standing. See In re Johnson & Johnson Talcum

Powder Prods. Mktg., Sales Pracs. & Liab. Litig., 903 F.3d 278, 285 (3d Cir. 2018) (“[A] plaintiff

must do more than offer conclusory assertions of economic injury in order to establish standing.

She must allege facts that would permit a factfinder to value the purported injury at something

more than zero dollars without resorting to mere conjecture.”).

At bottom, the Howards argue that they “have standing simply because they allege that

they received false and inaccurate information.” ECF No. 118 at 3. That argument is incorrect

under the law of this Circuit. Accordingly, the Howards have failed to establish an informational

injury sufficient to convey Article III standing.4

4 Even if the Howards had asserted a “traditional injury” theory of harm, they would still lack standing because they

have only asserted the “mere receipt of a misleading statement.” George, 114 F.4th at 236–37.

IV. Conclusion

For all of the foregoing reasons, the Court concludes that the Howards lack standing and

therefore the Court lacks subject matter jurisdiction over this case. Accordingly, it is HEREBY

ORDERED that this case is DISMISSED WITHOUT PREJUDICE. See Potter v. Cozen &

O’Connor, 46 F.4th 148, 154 (3d Cir. 2022) (stating that Article III standing is jurisdictional);

Onyiuke v. New Jersey, 242 F. App’x 794, 797 (3d Cir. 2007) (citing In re Orthopedic “Bone

Screw” Prods. Liab. Litig., 132 F.3d 152, 155 (3d Cir. 1997) (“[A] dismissal of an action for lack

of subject matter jurisdiction is not a decision on the merits; therefore such a dismissal should be

without prejudice.”).

DATED this 29th day of May, 2025.

BY THE COURT:

/s/ Christy Criswell Wiegand

CHRISTY CRISWELL WIEGAND

United States District Judge

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