Duchene v. Aargon Collection Agency, Inc.

Filing 22

ORDER denying 13 Defendant's Motion to Dismiss. Defendant shall file an answer to the complaint within fourteen (14) days of this Order. Signed by Judge James S. Moody, Jr. on 6/2/2017. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

DANIELLE DUCHENE,
Plaintiff,
v.

CASE NO: 8:17-cv-236-T-30AAS

AARGON COLLECTION AGENCY, INC.,
Defendant.
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ORDER
THIS CAUSE comes before the Court upon Defendant’s Motion to Dismiss (Dkt. 13)
and Plaintiff’s Response in Opposition (Dkt. 21). The Court, having reviewed the motion,
response, and being otherwise advised in the premises, concludes that the motion should be
denied.
BACKGROUND
Plaintiff Danielle Duchene filed the instant action against Defendant Aargon
Collection Agency, Inc. under the Fair Debt Collections Practices Act (“FDCPA”). Plaintiff
alleges that Defendant improperly reported a debt to a credit reporting agency. Plaintiff
disputed the debt directly with Defendant via a “dispute letter” on October 27, 2016.
Subsequently, Plaintiff reviewed her credit report and discovered that Defendant had rereported the debt in December 2016. When the debt was re-reported, Defendant failed to
indicate that the debt was “disputed by consumer” in violation of the FDCPA. Plaintiff
alleges that Defendant’s improper reporting of the disputed debt damaged Plaintiff and seeks

actual and statutory damages under the FDCPA. Defendant now moves to dismiss Plaintiff’s
complaint for lack of standing.
DISCUSSION
Defendant’s entire standing argument relies on the misguided belief that Plaintiff must
allege specific damages flowing from the FDCPA violation. The United States Supreme
Court and the Eleventh Circuit state otherwise. Specifically, to establish standing a plaintiff
“must have (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, 136 S. Ct. 1540, 1547 (2016). As the Eleventh Circuit recognized
in Church v. Accretive Health, Inc., 654 Fed.Appx. 990 (11th Cir. 2016), violation of
statutory rights is not a “hypothetical or uncertain” injury, but “one that Congress has
elevated to the status of a legally cognizable injury.” Id. at 995. In Church, the Eleventh
Circuit examined whether a plaintiff had standing to bring a claim under the FDCPA arising
from receipt of a letter advising her that she owed a debt, but not including certain
disclosures required under the FDCPA. The Eleventh Circuit found standing because the
invasion of “[the plaintiff’s] right to receive the disclosures is not hypothetical or uncertain;
[the plaintiff[ did not receive information to which she alleges she was entitled.” Id. at 99495.
More recently, the Eleventh Circuit reiterated that “the violation of a procedural right
granted by statute can be sufficient in some circumstances to constitute injury in fact” so that
“a plaintiff in such a case need not allege any additional harm beyond the one Congress has
identified.” Perry v. Cable News Network, Inc., 854 F.3d 1336, 1339-40 (11th Cir. 2017)
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(quoting Spokeo, 136 S. Ct. at 1549). In Perry, the plaintiff brought suit under the Video
Privacy Protection Act (“VPPA”)1 and did not allege any additional harm beyond the
statutory violation. The Eleventh Circuit found this sufficient to allege a concrete injury for
standing purposes because the structure and purpose of the VPPA provided actionable rights,
and a violation of the VPPA constituted a concrete harm. Id.
Based on this binding precedent, the Court concludes that Plaintiff’s complaint
establishes her standing. Plaintiff alleges a concrete and particularized injury in fact:
Plaintiff has statutorily-created rights under the FDCPA to dispute a debt and have that debt
properly reported to credit reporting agencies, so that Plaintiff’s credit is not adversely
impacted. It is axiomatic that an inaccurate credit rating poses a risk of harm because it may
influence other creditors or potential creditors to take an adverse action, such as declining
future credit. Accordingly, Defendant’s motion to dismiss is denied.2
It is therefore ORDERED AND ADJUDGED that:
1.

Defendant’s Motion to Dismiss (Dkt. 13) is DENIED.

1

The VPPA prohibits the wrongful disclosure by a video tape service provider of video
tape rental or sale records. It creates a cause of action for “[a]ny person aggrieved by any act of
a person in violation of this section.” 18 U.S.C. § 2710(c)(1).
2

Notably, the Court’s ruling is consistent with its prior rulings on the issue of standing in
the context of pure statutory violations. See, e.g., Dickens v. GC Services Limited Partnership,
Case No. 16-cv-803-T-30TGW, 2016 WL 3917530, at *2 (M.D. Fla. July 20, 2016) (Moody, J.)
(denying motion to dismiss FDCPA claim for lack of standing because “an alleged failure to
comply with a federal law,” as alleged in the plaintiff’s complaint, “may indeed be enough to
confer standing. Spokeo in no way stands for the proposition that it is not.”).
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2.

Defendant shall file an answer to the complaint within fourteen (14) days of
this Order.

DONE and ORDERED in Tampa, Florida on June 2, 2017.

Copies furnished to:
Counsel/Parties of Record

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