Thursday, January 23, 2020

FYI: 6th Cir Holds Consumer Lacks Standing to Assert 'Meaningful Involvement' Claim, Not Every Technical Violation is Redressable

The U.S. Court of Appeals for the Sixth Circuit recently affirmed a trial court's ruling that a consumer lacked standing to pursue a lawsuit alleging that collection notices sent by a law firm violated the FDCPA because no attorney with the firm conducted a meaningful review of his debts.

 

The court's opinion is available at:  Link to Opinion

 

The consumer received two collection letters that were printed on the law firm's letterhead and signed by one of the firm's attorneys. The consumer alleged that those letters were sent to him without any meaningful attorney review. In an effort to support this conclusion, the consumer asserted that the law firm sends so many letters that no attorney could possibly review all of them. He also alleged that the signatures on the two letters were identical and appeared to be "stock signatures."

 

'Meaningful Involvement' Claim Requires Standing

 

As you may recall, the FDCPA (15 U.S.C. § 1692e(3)) prohibits debt collectors from falsely representing or implying "that any individual is an attorney or that any communication is from an attorney." The statute itself makes no mention of "meaningful involvement" or "meaningful review." Instead, courts created the meaningful-involvement doctrine to evaluate claims asserted under § 1692e(3) with respect to communications that bear an attorney's name or signature, but that are (in the words of one court) "not 'from' the attorney in any meaningful sense of the word." Avila v. Rubin, 84 F.3d 222, 229 (7th Cir. 1996).

 

The trial court dismissed the consumer's case, finding that the consumer lacked standing and that he failed to state a claim under the FDCPA. On appeal, the Sixth Circuit limited its review to the issue of standing, and affirmed the trial court's dismissal.

 

A Bare Allegation of Anxiety is Insufficient to Allege an Injury in Fact

 

To pursue a case in federal court, a plaintiff must demonstrate that he has standing, and an essential element of standing is a showing that the plaintiff suffered an "injury in fact" as the result of the defendant's alleged conduct. In this case, the consumer alleged that he suffered an injury in fact because the firm's letters made him feel anxious and caused him to fear that the firm would sue him if he did not pay.

 

The Sixth Circuit held that although a plaintiff might sometimes recover damages for emotional distress in an FDCPA action, a bare allegation of anxiety is insufficient to allege an injury in fact.

The Court also found that the consumer's alleged anxiety was insufficient to confer standing because it was self-inflicted and thus not traceable to the law firm's alleged conduct. That is, the Court determined that any anxiety suffered by the consumer was the result of his decision not to pay his undisputed debts, rather than the content of the law firm's letters.

 

Consumer's Procedural Violation Claim Also Insufficient

 

The consumer also argued that the alleged violation of § 1692e(3) was sufficient, on its own, to confer standing. The Sixth Circuit agreed that a plaintiff need not allege any additional harm when alleging that the defendant has violated a procedural right that was created by Congress to protect a "concrete interest." However, while it is clear that Congress enacted the FDCPA to protect consumers from abusive debt-collection practices, the consumer could not show that the law firm's letters caused him any harm that the FDCPA was intended to prevent.

 

The Court distinguished the procedural violation alleged by the consumer from procedural violations found to be sufficient to confer standing in other cases, such as violations that subjected the consumer to attempts to collect debts that the consumer did not owe and violations that placed consumers at risk of waiving rights protected by the FDCPA.

 

Standing is Subjective, Not Every Technical Violation is Redressable

 

Not every technical violation of the FDCPA is redressable in federal court, and some cases are subject to dismissal due to the plaintiff's lack of standing. But the Supreme Court has noted that it is often difficult to determine when a plaintiff has sufficiently alleged an injury in fact resulting from the violation of a procedural right created by Congress.

 

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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Tuesday, January 21, 2020

FYI: CFPB Increases Maximum Amount of Civil Monetary Penalties

Effective January 15, 2020, the federal Consumer Financial Protection Bureau increased the maximum civil monetary penalty it can impose within its jurisdiction. The increases are required by federal law, which requires agencies to adjust for inflation each civil monetary penalty within an agency's jurisdiction by Jan. 15 of each year.

A copy of the announcement is available at:  Link to Announcement

The adjusted penalties are as follows:

Law

Penalty description

Penalty amounts established under 2019 final rule

New penalty amount

Consumer Financial Protection Act, 12 U.S.C. 5565(c)(2)(A)

Tier 1 penalty

$5,781

$5,883

Consumer Financial Protection Act, 12 U.S.C. 5565(c)(2)(B)

Tier 2 penalty

28,906

29,416

Consumer Financial Protection Act, 12 U.S.C. 5565(c)(2)(C)

Tier 3 penalty

1,156,242

1,176,638

Interstate Land Sales Full Disclosure Act, 15 U.S.C. 1717a(a)(2)

Per violation

2,014

2,050

Interstate Land Sales Full Disclosure Act, 15 U.S.C. 1717a(a)(2)

Annual cap

2,013,399

2,048,915

Real Estate Settlement Procedures Act, 12 U.S.C. 2609(d)(1)

Per failure

94

96

Real Estate Settlement Procedures Act, 12 U.S.C. 2609(d)(1)

Annual cap

189,427

192,768

Real Estate Settlement Procedures Act, 12 U.S.C. 2609(d)(2)(A)

Per failure, where intentional

190

193

SAFE Act, 12 U.S.C. 5113(d)(2)

Per violation

29,192

29,707

Truth in Lending Act, 15 U.S.C. 1639e(k)(1)

First violation

11,563

11,767

Truth in Lending Act, 15 U.S.C. 1639e(k)(2)

Subsequent violations

23,125

23,533

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

Alabama   |   California   |   Florida   |   Georgia   |   Illinois   |   Massachusetts   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Texas   |   Washington, DC

 

 

NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.


Our updates and webinar presentations are available on the internet, in searchable format, at:

 

Financial Services Law Updates

 

and

 

The Consumer Financial Services Blog

 

and

 

Webinars

 

and

 

California Finance Law Developments