United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
Faith Girdler (“Girdler”) asserts claims against
Defendant Convergent Outsourcing, Inc.
(“Convergent”) for violations of the Fair Debt
Collection Practices Act, 15 U.S.C. §§ 1692 et
seq. (“FDCPA”). D. 17. Girdler alleges that
Convergent used false, deceptive or misleading
representations or means by failing to identify itself as a
debt collector attempting to collect her debt in violation of
§ 1692e & (11) (Count I) and failed to provide her
the required written notice of her debt in violation of
§ 1692g(a) (Count II). Id. at 5-7. Convergent
has moved for summary judgment on all counts, D. 19, and
Girdler has opposed, D. 24. Convergent has also filed
supplemental authority regarding Article III standing. D. 27,
31, 33, 34. For the reasons stated below, the motion for
summary judgment is DENIED in part and ALLOWED in part.
Standard of Review
judgment must be granted where there is no genuine dispute of
any material fact and the undisputed facts demonstrate that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). The movant bears the burden of
demonstrating the absence of a genuine issue of material
fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir.
2000) (citations omitted); see Celotex v. Catrett
477 U.S. 317, 323 (1986). If the movant meets its burden, the
non-moving party may not rest on the allegations or denials
in its pleadings, Murray v. Warren Pumps, LLC, 821
F.3d 77, 83 (1st Cir. 2016) (citation omitted), but
“must, with respect to each issue on which she would
bear the burden of proof at trial, demonstrate that a trier
of fact could reasonably resolve that issue in her favor,
” Borges ex rel. S.M.B.W. v. Serrano-Isern,
605 F.3d 1, 5 (1st Cir. 2010) (citations omitted). The Court
views the record in the light most favorable to the
non-movant and draws reasonable inferences in their favor.
Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.
2009) (citation omitted).
Standing as to Count I
claims are based upon phone calls made by Convergent to
Girdler and a written notice that Girdler asserts she did not
receive. D. 17 at 3-4; D. 22-1, 22-2. Convergent argues that
Girdler lacks standing where she failed to follow the dispute
procedures prescribed by the FDCPA. D. 20 at 4. Convergent
also argues that Girdler lacks standing in light of recent
Supreme Court precedent because she has not suffered an
injury in fact. D. 27 at 2.
Convergent does not point to the section of the FDCPA that
contains the applicable dispute procedures, the cases it
relies upon, D. 20 at 4, discuss § 1692g. Among other
things, § 1692g requires a debt collector, within five
days after the initial communication-unless done so in that
communication-to notify the consumer in writing that unless
they dispute the validity of their debt thirty days after
receipt of the notice “the debt will be assumed to be
valid by the debt collector.” See §
1692g(a). Failure to dispute the debt is not an admission of
liability. § 1692g(c). In applying § 1692g,
however, courts have dismissed FDCPA suits based upon an
allegation that “the debt sought to be collected is not
valid” and where the consumer failed to follow the debt
validation dispute procedure prior to filing suit. See,
e.g., Bleich v. Revenue Maximization Grp.,
Inc., 233 F.Supp.2d 496, 500-01 (E.D.N.Y. 2002) and
cases cited. Although failure to dispute a debt permits
a debt collector to assume that the debt is valid, such
failure does not necessarily bar a plaintiff from bringing
suit under the FDCPA. See Hudson v. Babilonia, No.
14-cv-01646-MPS, 2016 WL 3264150, at *22 (D. Conn. June 14,
2016) (concluding that failure to contest a debt pursuant to
§ 1692g(b) does not bar a debtor from bringing FDCPA
claims and denying summary judgment in debt collector's
favor). Here, Girdler is not asserting claims regarding the
debt itself, but rather the practices Convergent used in
attempting to collect the debt. See § 1692e.
Accordingly, Girdler's failure to dispute the debt does
not otherwise bar her claims. See Hudson, 2016 WL
3264150, at *22.
also argues that Girdler lacks standing based upon the
Supreme Court's recent decision in Spokeo, Inc. v.
Robins, __ U.S. __, 136 S.Ct. 1540 (2016) because she
has not suffered a concrete harm to establish injury in fact,
D. 27 at 2-4-“the [f]irst and foremost of
standing's three elements, ” Spokeo, 136
S.Ct. at 1547 (alteration in original) (internal quotation
marks and citation omitted). Because the Court dismisses
Count II on other grounds, as discussed below, it will only
address injury in fact as to Count I for violations of §
establish injury in fact, a plaintiff must show that she
suffered ‘an invasion of a legally protected
interest' that is ‘concrete and particularized'
and ‘actual or imminent, not conjectural or
hypothetical.'” Id. at 1548 (citation
omitted). In Spokeo, an online people search engine
posted allegedly false information regarding an individual in
violation of certain provisions of the Fair Credit Reporting
Act “concerning the creation and use of consumer
reports.” See id. at 1544-45. The Ninth
Circuit reversed the district court's dismissal for lack
of standing and the Supreme Court vacated and remanded for
further development where the Ninth Circuit addressed the
“particularization” but not the
“concreteness” requirement to determine injury in
fact. See id. at 1544, 1550. As discussed in
Spokeo, “[t]o be ‘concrete, ' an
injury ‘must actually exist, ' that is, it must be
‘real, and not abstract.'” Strubel v.
Comenity Bank, 842 F.3d 181, 188 (2d Cir. 2016)
(internal quotation mark omitted) (quoting Spokeo,
136 S.Ct. at 1548). The Second Circuit, in concluding that
plaintiff had standing to bring certain claims for violations
of the Truth in Lending Act for failure to disclose
particular consumer rights, summarized the holding in
Spokeo: “we understand Spokeo, and
the cases cited therein, to instruct that an alleged
procedural violation can by itself manifest concrete injury
where Congress conferred the procedural right to protect a
plaintiff's concrete interests and where the procedural
violation presents a ‘risk of real harm' to that
concrete interest.” See id. at 190 (quoting
Spokeo, 136 S.Ct. at 1549). “But even where
Congress has accorded procedural rights to protect a concrete
interest, a plaintiff may fail to demonstrate concrete injury
where violation of the procedure at issue presents no
material risk of harm to that underlying interest.”
Id. (citing Spokeo, 136 S.Ct. at 1549).
upon the record before the Court, Girdler has met her burden
as to Count I “to proffer evidence sufficient to
manifest” a concrete and particularized injury. See
id. at 192 (citing Lujan v. Defs. of Wildlife,
504 U.S. 555, 561 (1992)). According to the FDCPA, a debt
collector must disclose in the initial communication with the
consumer that it is a debt collector “attempting to
collect a debt and that any information obtained will be used
for that purpose.” See Kagan v. Selene Fin.
L.P., No. 15-cv-5936-KMK, 2016 WL 5660255, at *7 &
n.7 (S.D.N.Y. Sept. 28, 2016) (quoting § 1692e(11)).
Debt collectors must also disclose in all subsequent
communications with the consumer that the communication is
from a debt collector. See id. This disclosure
requirement is contingent upon the debt collector
affirmatively identifying the debtor as the one being
contacted. See §§ 1692b(2), 1692c(b).
Here, a reasonable jury could find that, based upon the
uncontested transcripts of the applicable telephone calls, D.
22-1 at 2-3, Convergent used “false, deceptive, or
misleading representation[s] or means” in failing to
disclose to Girdler that it was a debt collector attempting
to collect a debt and that the information obtained would be
used for that purpose, see § 1692e. A jury
could find that Convergent first communicated with Girdler by
phone on June 23, 2015 and confirmed that they had indeed
contacted Girdler, but did not disclose that it was a debt
collector attempting to collect a debt or for what purpose
any information obtained during the call would be used.
See D. 22-1 at 2. Likewise, a jury could find that
during Convergent's June 25, 2015 phone call, it failed
to disclose that it was a debt collector and used improper
representations or means in describing the call as a
“courtesy call” prior to attempting to confirm
Girdler's address. See id. at 3.
purported conduct thus presents a risk of harm to
Girdler's concrete interest established by the FDCPA to
be free of “any false, deceptive, or misleading
representation or means in connection with the collection of
any debt.” § 1692e. That is, such a violation
harms Girdler's interest to be informed of the identity
of the debt collector and the purpose of the call so as to
allow her to make fair decisions regarding how to respond.
See Horowitz v. GC Servs. Ltd. P'ship, No.
14-cv-2512-MMA-RBB, 2016 WL 7188238, at *7 (S.D. Cal. Dec.
12, 2016) (citations omitted). As reasoned by the Eleventh
Circuit, “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 v. Accretive
Health, Inc., 654 F. App'x 990, 994 (11th Cir. 2016)
Church, the Eleventh Circuit, in affirming the
district court's ruling on summary judgment, concluded
that where a debt collector's written communication
failed to include the disclosures required by §§
1692e(11) and 1692g(a), Church established standing as she
had suffered “a concrete-i.e.,
‘real'-injury because she ...