Aguirre v. Absolute Resolutions Corp. et al

Filing 93

MEMORANDUM Opinion and Order: Signed by the Honorable Rebecca R. Pallmeyer on 9/27/2017. Mailed notice. (etv, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CARMEN AGUIRRE, on behalf of plaintiff
and the class members described herein,

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Plaintiff,
V.
ABSOLUTE RESOLUTIONS CORP; and
BLATT, HASENMILLER, LEIBSKER &
MOORE LLC,
Defendants.

No. 15 C 11111
Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
Plaintiff Carmen Aguirre sued Defendants Absolute Resolutions Corp. (“ARC”) and Blatt,
Hasenmiller, Leibsker & Moore, LLC (“Blatt”), for violations of the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1692, et seq. (Plaintiff’s First Amended Complaint [29] (“Compl.”),
¶¶ 1–10.) This suit arises from a letter sent by the Defendants to Aguirre seeking repayment of
a delinquent credit card debt Aguirre originally owed to Capital One. Aguirre alleged that the
Defendants falsely misrepresented the nature of the debt and employed unfair and
unconscionable means to collect by inserting a sentence into the collection letter that
“threatened” to add interest and other fees to the sum owed. (Id. at ¶¶ 56–59.)
Defendants moved to dismiss the complaint for lack of standing. (Defendants’ Motion to
Dismiss under Rule 12(b)(1) for Lack of Standing [81] (“Defs.’ MTD”), 1.) The Defendants argue
that Aguirre did not suffer a real, concrete harm from the letter, and, even if she did, such harm
would not be fairly traceable to the Defendants but rather to Aguirre’s own mistaken beliefs
about the debt. (Id.) In so moving, Defendants rely primarily on the Supreme Court’s recent
decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), to argue that the harm Aguirre
claimed was not sufficiently “concrete” to create Article III standing. (Defendants’ Memorandum

1

in Support of their Motion to Dismiss under Rule 12(b)(1) for Lack of Standing [82] (“Defs.’
Opening Br.”), 11) (citing Spokeo, 136 S. Ct. at 1548).
For the reasons explained here, Defendants’ Motion to Dismiss is denied.
DISCUSSION
1.

Standard of Review
A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(1) challenges

the court’s subject-matter jurisdiction. Cases brought for violations of the FDCPA clearly “aris[e]
under” the laws of the United States, 28 U.S.C. § 1331, and the only question here is whether
Aguirre herself has standing to bring this suit. Standing ensures that courts hear only “actual
cases or controversies,” and limits the overall pool of litigants to those “seek[ing] redress for a
legal wrong.” Spokeo, 136 S. Ct. at 1547.
The plaintiff bears the burden of establishing that she has standing to sue. Diedrich v.
Ocwen Loan Servicing, LLC, 839 F.3d 583, 588 (7th Cir. 2016). Where a defendant brings a
facial challenge to a plaintiff’s standing, the district court presumes the truth of “all material
allegations of the complaint” and draws all reasonable inferences in the plaintiff’s favor.
Remijas v. Neiman Marcus Group, LLC, 795 F.3d 688, 691 (7th Cir. 2015). In this context, the
court “does not look beyond the allegations in the complaint.”

Apex Digital, Inc. v. Sears,

Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009). Where, however, the defendant challenges
the factual basis for standing based on other information, no presumption of truthfulness
attaches to the plaintiff’s complaint and the court “may properly look beyond the jurisdictional
allegations . . . and view whatever evidence has been submitted on the issue to determine
whether in fact subject matter jurisdiction exists.” Id. at 445 (internal quotations omitted).
2.

Rule (12)(b)(1) Motion to Dismiss
Plaintiff alleges numerous violations of 15 U.S.C. § 1692e (false or misleading

representations) and 15 U.S.C. § 1692f (unfair practices) based on an April 28, 2015 letter
seeking repayment of a delinquent Capital One credit card debt. (Letter from Blatt to Aguirre of
2

4/28/15, Ex. C to Compl. [29-1] (“Collection Letter”).) Defendant Blatt, a law firm, sent the letter,
identifying Defendant ARC as the “creditor,” Capital One as the “original creditor,” and $515.13
as the amount due. (Id.) Plaintiff’s grievances stem from one sentence in the collection letter,
which reads: “Because of interest, late charges, and other charges that may vary from day to
day, the amount due on the day you pay may be greater.” (Id.) Plaintiff claims that Defendants
were not authorized—and never intended—to add any such charges to her account, and that
the statement therefore amounts to an improper threat in violation of the FDCPA. (Compl.
¶¶ 55–59.) Although Blatt sent the letter, Aguirre claims that ARC is also liable, claiming it
“authorized, directed, and ratified every action taken by Blatt on its behalf . . . in connection with
efforts to collect the alleged debt.” (Id. at ¶ 46.)
In order 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.” Diedrich, 839 F.3d at 588 (quoting Spokeo, 136 S.
Ct. at 1547) (internal quotations omitted). Defendants assert that Plaintiff’s complaint fails on
the first two elements: that Plaintiff “did not suffer a real, concrete harm,” and that any harm she
did suffer is not fairly traceable to any misconduct on their part.

(Defs.’ Opening Br., 2.)

Defendants’ motion focuses on admissions in Plaintiff’s deposition, which they claim defeat her
assertion that she was actually intimidated by the alleged threats in the collection letter. (Id. at
5–9.) Defendants also note that Plaintiff is only seeking statutory damages under the FDCPA
and has not identified any actual loss. (Id. at 4.) Plaintiff responds that the FDCPA does not
require proof of “actual damages” in order to establish standing, and that her injuries arise from
violations of a statute granting her legally protected rights. (Plaintiff’s Response to Defendants’
Motion to Dismiss [84] (“Pl.’s Resp. Br.”), 5–6.)
A.

“Concrete Harm”

For the purposes of standing, a plaintiff has suffered an injury in fact when she can show
“an invasion of a legally protected interest which is (a) concrete and particularized, and (b)
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actual or imminent, not conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992). “A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.” Spokeo, 136 S. Ct.
at 1548. Concrete injuries, however, need not be tangible. Id. at 1549; see also Havens Realty
Corp. v. Coleman, 455 U.S. 363, 373–74 (1982). While potentially harder to identify, intangible
injuries may also give rise to standing. Spokeo, 136 S. Ct. at 1549–50 (citing FEC v. Akins, 524
U.S. 11, 20–25 (1998) and Public Citizen v. Dep’t of Justice, 491 U.S. 440, 449 (1989) for the
conclusion that not receiving statutorily-required disclosures of information can give rise to
standing). In effect, “though actual monetary harm is a sufficient condition to show concrete
harm, it is not a necessary condition.” Lane v. Bayview Loan Servicing, LLC, No. 15-C-10446,
2016 WL 3671467, at *3 (N.D. Ill. July 11, 2016) (“When a federal statute is violated, and
especially when Congress has created a cause of action for its violation, by definition Congress
has created a legally protected interest that it deems important enough for a lawsuit.”)
In determining whether a given intangible injury gives rise to standing, the Supreme
Court has pointed to historical practice and Congressional judgment as informative sources.
Spokeo, 136 S. Ct. at 1549. If an alleged intangible harm bears a close resemblance to a harm
traditionally regarded as conferring standing under common law, the harm is likely concrete. Id.
Congress’s judgment is also important, as it can create private causes of action via statute and
“elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were
previously inadequate in law.” Lujan, 504 U.S. at 578. Nevertheless, not all statutory violations
automatically confer standing. Plaintiffs alleging “bare procedural violations,” divorced from any
risk of real harm, do not have standing to sue. Spokeo, 136 S. Ct. at 1549.
This point is best illustrated by the facts of Spokeo. In that case, the plaintiff sued a
“consumer reporting website” under the Fair Credit Reporting Act for publishing inaccurate
personal information about him.

Id. at 1546.

The information, however, was arguably

complimentary of plaintiff’s personal and financial circumstances, and the Court found that the
Ninth Circuit had failed to address whether the inaccuracies “present[ed] any material risk of
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harm.” Id. at 1550. The lesson of Spokeo is not that intangible violations are not actionable, but
rather that courts must take care to identify whether the risks embodied in a plaintiff’s claims
reflect the harms sought to be addressed by a statutory cause of action. Other examples of
such harmless violations include: disclosure of an incorrect zip code, see id., failing to redact a
consumer’s credit card expiration date on a receipt issued to that consumer, Meyers v. Nicolet
Rest. of De Pere, LLC, 843 F.3d 724, 727 (7th Cir. 2016), or retaining a consumer’s personal
information without any evidence that the information was leaked, lost, or given away, Gubala v.
Time Warner Cable, Inc., 846 F.3d 909, 910 (7th Cir. 2017).
Looking to either historical or Congressional precedent, Plaintiff Aguirre has alleged a
concrete injury here.

Plaintiff claims that the letter contained threatening language which

Defendants could not, and did not, act upon in the attempt to collect on a debt. (Compl. ¶¶ 56,
58.) This allegation is well within the heartland of common law fraud. See RESTATEMENT
(FIRST) OF TORTS § 525 (AM. LAW . INST. 1938) (liability for fraudulent misrepresentations).
Similarly, Congress’s stated goal in enacting the FDCPA was to curb “the use of abusive,
deceptive, and unfair debt collection practices by many debt collectors.” 15 U.S.C. § 1692(a).
These are not the sorts of “bare procedural violations” the Supreme Court says do not support
standing under Article III. (Defs.’ Opening Br. 10–12) (quoting Spokeo, 136 S. Ct. at 1550).
Aguirre has alleged a concrete injury by claiming that the Defendants threatened and lied to
her—the precise harms the FDCPA was meant to remedy. As Judge Feinerman recently stated
in an FDCPA suit over a collection letter containing nearly identical language 1: “The value of
receiving truthful information about one's financial affairs—and the ill effects of receiving
misleading information—may be hard to quantify, especially where, as here, the plaintiff did not

1

The Haddad letter read: “As of the date of this letter, you owe $1,823.84 on the
above-referenced account. This may include other charges that apply to this account. In
addition, charges may continue to accrue on some or all of the balance due until the account is
satisfied. Thus, the amount due on the day you pay may be greater than the amount above.
Please contact us to obtain an exact payoff amount or for further information.” Haddad, 2017
WL 1550187, at *2 (emphasis in original).
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act upon the misinformation. But being lied to in violation of an anti-trickery statute like the
FDCPA is a concrete harm nevertheless.” Haddad v. Midland Funding, LLC, ___ F. Supp. 3d
___, No. 16-C-3942, 2017 WL 1550187, at *3 (N.D. Ill. May 1, 2017) (citing Havens Realty, 455
U.S. at 373–74).
Defendants nevertheless maintain that the invasion of a legally protected interest is
insufficient, by itself, to establish standing and that “[t]he concrete-harm requirement is focused
on something else: the consequence of the breach.” (Defendants’ Reply Brief in Support of
their Motion to Dismiss under Rule 12(b)(1) for Lack of Standing [85], (“Defs.’ Reply Br.”), 5)
(emphasis in original). This misstates the effect of Spokeo. As the Court there recognized,
“[t]he violation of a procedural right granted by statute can be sufficient in some circumstances
to constitute injury in fact. In other words, a plaintiff in such a case need not allege any
additional harm beyond the one Congress has identified.” Id. at 1549 (emphasis in original)
(citing Akins, 524 U.S. at 20–25). Spokeo does not indiscriminately sweep aside all the legal
rights created by Congress that confer standing where no injury would otherwise exist. Id. at
1553 (Thomas, J. concurring). 2 Furthermore, such a view would make little sense in the context
of the FDCPA, given that Congress made statutory damages available—a clear indication that it
did not view the lack of direct pecuniary harm as a disqualifier. See Philips v. Asset Acceptance
Corp., 736 F.3d 1076, 1083 (7th Cir. 2013) (“Proof of injury is not required when the only
damages sought are statutory.”)
In several FDCPA cases pre-dating Spokeo, the Seventh Circuit recognized standing to
challenge unlawful debt collection demands even without proof of additional harm. See Keele v.

2

Justice Thomas continues: “In a suit for the violation of a private right, courts
historically presumed that the plaintiff suffered a de facto injury merely from having his personal,
legal rights invaded. Thus, when one man placed his foot on another's property, the property
owner needed to show nothing more to establish a traditional case or controversy. Many
traditional remedies for private-rights causes of action—such as for trespass, infringement of
intellectual property, and unjust enrichment—are not contingent on a plaintiff's allegation of
damages beyond the violation of his private legal right.” Spokeo, 136 S. Ct. at 1551 (internal
citations omitted).
6

Wexler, 149 F.3d 589, 594 (7th Cir. 1998) (standing existed based “on the debt collector's
misconduct, not whether the debt is valid or . . . whether the consumer has paid an invalid
debt.”); Phillips, 736 F.3d at 1082–83 (standing existed where debt collectors had filed allegedly
unlawful suits against consumers, even though those consumers had not actually been served).
Spokeo does not disturb these holdings, as the vast majority of this court’s colleagues have
concluded. See, e.g., Pierre v. Midland Credit Mgmt., Inc., No. 16-C-2895, 2017 WL 1427070,
at *4 (N.D. Ill. April 21, 2017) (addressing Spokeo and finding an injury in fact where plaintiff
asserted an FDCPA claim against a collection agency that attempted to recover an unpaid, but
time-barred, debt). Over the last year and half, more than a dozen cases within this Circuit have
recognized the differences between the claims in Spokeo, Meyers, and Gubala, and those
alleged in FDCPA claims like those brought by Aguirre. In every instance, the courts have
concluded that plaintiffs claiming intangible injuries from allegedly predatory debt collection
practices do in fact have Article III standing to sue for statutory damages under the FDCPA. 3

3

See Lane v. Bayview Loan Servicing, LLC, No. 15-C-10446, 2016 WL 3671467,
at *4–5 (N.D. Ill. July 11, 2016) (Chang, J.); Quinn v. Specialized Loan Servicing, No. 16-C2021, 2016 WL 4264967, at *4–5 (N.D. Ill. Aug. 11, 2016) (Bucklo, J.); Bernal v. NRA Group,
LLC, 318 F.R.D. 64, 74 (N.D. Ill. 2016) (Feinerman, J.); Saenz v. Buckeye Check Cashing of Ill.,
No. 16-C-6052, 2016 WL 5080747, at *2 (N.D. Ill. Sept. 20, 2016) (Shah, J.); Hayes v.
Convergent Healthcare Recoveries, Inc., No. 14-C-1467, 2016 WL 5867818, at *4 (C.D. Ill. Oct.
7, 2016) (Shadid, C.J.); Everett v. Fin. Recovery Servs., Inc., No. 16-C-1806-JMS-MPB, 2016
WL 6948052, at *4 (S.D. Ind. Nov. 28, 2016) (Magnus-Stinson, C.J.); George v. Wright, Lerch &
Litow, LLP, No. 15-C-811-JMS-DML, 2016 WL 6963990, at *3 (S.D. Ind. Nov. 29, 2016)
(Magnus-Stinson, C.J.); Long v. Fenton & McGarvey Law Firm P.S.C., No. 15-C-1924-LJMDKL, 2016 WL 7179367, at *3 (S.D. Ind. Dec. 9, 2016) (McKinney, J.); Dunham v. Robert Crane
& Assocs., LLC, No. 16-C-2100-SEB-MPB, 2017 WL 1423957, at *2–4 (S.D. Ind. Apr. 19, 2017)
(Brookman, J.); Pierre v. Midland Credit Mgmt., Inc., No. 16-C-2895, 2017 WL 1427070, at *3
(N.D. Ill. Apr. 21, 2017) (Leinenweber, J.); Haddad v. Midland Funding, LLC, ___ F. Supp. 3d
___, No. 16-C-3942, 2017 WL 1550187, at *3 (N.D. Ill. May 1, 2017) (Feinerman, J.);
Pogorzelski v. Patenaude & Felix APC, No. 16-C-1330, 2017 WL 2539782, at *2–3 (E.D. Wis.
June 12, 2017) (Griesbach, C.J.); Stockman v. Credit Prot. Ass’n, LP, No. 16-C-8059, 2017 WL
2798403, at *2 (N.D. Ill. June 28, 2017) (Der-Yeghiayan, J.); Gonzales v. Credit Prot. Ass’n, LP,
No. 16-C-8683, 2017 WL 2798404, at *2 (N.D. Ill. June 28, 2017) (Der-Yeghiayan, J.);
Hernandez v. Midland Credit Mgmt., Inc., No. 15-CV-11179, 2017 WL 2985764, at *2 (N.D. Ill.
July 13, 2017) (Gottschall, J.); Wheeler v. Midland Funding, LLC, No. 15-C-11152, 2017 WL
3235683, at *5 (N.D. Ill. July 31, 2017) (Kendall, J.); Swike v. Med-1 Solutions, LLC, No. 17-C1503-JMS-MPB, 2017 WL 4099307, at *2–4 (S.D. Ind. Sept. 15, 2017) (Magnus-Stinson, C.J.);
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Perhaps recognizing the lack of support for their position from courts in this Circuit,
Defendants cite to several out-of-circuit decisions. (Defs.’ Reply Br. 9–11.) Several of those
cases are distinguishable. In one of them, for example, the plaintiff never had a debt to pay off
and instead brought a lawsuit based on someone else’s AT&T account. See Benali v. AFNI
Inc., No. 15-C-3605-BRM-DEA, 2017 WL 39558, at *1 (D.N.J. Jan. 4, 2017). In Jackson v.
Abendroth & Russell, P.C., 207 F. Supp. 3d 945 (S.D. Iowa 2016), the court held that violations
of FDCPA Section 1692g’s disclosure requirements did not confer standing on their own, but
“recognize[d] that violations of other FDCPA provisions may be sufficient on their own to
constitute an Article III injury in fact.” Id. at 961. But see Church v. Accretive Health, Inc., 654
Fed. Appx. 990, 994–95 (11th Cir. 2016) (holding that violations of Section 1692g do establish
an injury in fact). Notably, Jackson itself cites two cases from the Northern District of Illinois
which found injuries in fact stemming from violations of sections 1692e and 1692f—the basis for
Aguirre’s claims in this case—as prime examples of such provisions.

Id. (citing Quinn v.

Specialized Loan Servicing, No. 16-C-2021, 2016 WL 4264967, at *3–5 (N.D. Ill. Aug. 11,
2016); Bernal v. NRA Group, LLC, No. 16-C-1904, 2016 WL 4530321, at *4–5 (N.D. Ill. Aug. 30,
2016)).
Defendants have cited two cases in which the courts reached opposing conclusions over
section 1692e itself. See Provo v. Rady Children's Hosp.—San Diego, No. 15-C-81-JM-BGS,
2016 WL 4625556, at *2 (S.D. Cal. Sept. 6, 2016) (“[W]hile Plaintiffs allege that CMRE violated
the FDCPA and Rosenthal Act by sending the January 2, 2015, letter, nowhere in the
[complaint] do they plead any harm or material risk of harm that they suffered as a
consequence.”); May v. Consumer Adjustment Co., Inc., No. 4:14-C-166-HEA, 2017 WL
227964, at *4 (E.D. Mo. Jan. 19, 2017) (requiring an additional injury on top of a statutory
violation to create FDCPA standing). Neither case is binding upon this court, nor are they in line

Marquez v. Weinstein, Pinson & Riley, P.S., No. 14-C-739, 2017 WL 4164170, at *3 (N.D. Ill.
Sept. 20, 2017) (Tharp, J.).
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with Seventh Circuit precedent before and after Spokeo. See Janetos v. Fulton Friedman &
Gullace, LLP, 825 F.3d 317, 324 (7th Cir. 2016) (stating that statutory violations of FDCPA
sections 1692e and 1692g create standing); supra n. 3.
Finally, Defendants assert that portions of Aguirre’s deposition and answers to
interrogatories are inconsistent with her standing argument. Much of the material they cite,
however, relates to claims she has not made. Defendants admit as much in their motion,
stating that Aguirre’s “only purported harm, which she did not actually allege, is that she was
‘intimidated’ by the sentence.” (Defs.’ Opening Br. 1) (emphasis added). They proceed to
highlight Aguirre’s deposition statement that she was just “a little concerned” after receiving the
letter. (Id. at 5) (quoting Aguirre Dep., Ex. E to Defs.’ Opening Br. [82-5], 19:10–23.) They then
walk through her behavior after receiving the letter and argue that she did not act as a truly
“intimidated person” would. (Id. at 14) (citing Aguirre Dep. 23:5–26:9.) Indeed, Defendants
contend, Aguirre herself was not confused by the letter, citing to a hearing before Magistrate
Judge Kim wherein Aguirre’s counsel willingly ceded the point. (Id. at 4) (quoting Transcript of
Proceedings, Ex. C to Defs.’ Opening Br. [82-3], 10:3–20.) All of this evidence is relevant solely
to Defendants’ contention that, to establish standing under the FDCPA, plaintiff must allege a
tangible harm beyond the violation itself. The court has already rejected that contention.
For this reason, the court is not moved by Defendants’ continued focus on the
“undisputed facts” that the debt itself was valid, that Plaintiff did not pay it, and that no interest or
other fees were actually imposed. (Defs.’ Opening Br. 12.) These facts are accurate, but not
relevant to the injury Plaintiff alleged. (Pl.’s Resp. 12) (“Defendants caused Plaintiff an injuryin-fact when they violated her substantive rights to not be misled or deceived. . . . [T]hough
Plaintiff has not alleged actual damages, actual fear or induced payments, the statements
nevertheless posed a risk of misleading her and influencing her actions.”) For the reasons
stated above, and as other judges in this Circuit have concluded, Defendants’ insistence that an
additional showing is necessary is based on a misreading of Spokeo. Notably, FDCPA sections
9

1692e and 1692f both penalize the attempt to collect debts using “false or misleading
representations,” or “unfair or unconscionable means,” respectively. It makes little sense to
require tangible, financial harm to establish standing to sue under a statute that penalizes
attempted wrongs. Attempts are by definition not successful.
Aguirre’s complaint alleges that, by warning that “interest, late charges, and other
charges” may continue to accrue, the collection letter effectively misrepresented the alleged
debt.

(Compl. ¶¶ 25–36.) She states that Defendants had no power or intent to add such

charges, and the statement amounted to a threat intended to coerce her into repayment. (Id. at
¶¶ 37–43.)

Defendants emphasize that Aguirre has no basis to allege “intimidation” or

“confusion” (Defs.’ Opening Br. 12–15; Defs.’ Reply Br. 11–12), but Plaintiff does not rest her
case on the notion that she was actually intimidated or confused, and the Defendants’ efforts to
frame this as a smoking-gun “admission” are ineffective. (Transcript of Proceedings 9:5–10:21.)
Personal intimidation or fear is not a requirement for an FDCPA injury. See Lox v. CDA, Ltd.,
689 F.3d 818, 826 (7th Cir. 2012) (“[I]t is unimportant whether the individual that actually
received a violative letter was misled or deceived.”); Rosales v. Weltman, Weinberg & Reis Co.,
No. 15-CV-6943, 2017 WL 1436957, at *4 (N.D. Ill. Apr. 24, 2017) (applying Lox post-Spokeo).
None of the evidence presented by Defendants calls the propriety of these claims into question.
Defendants criticize Aguirre for failing to present evidence in rebuttal and “prov[ing] by a
preponderance of the evidence the facts necessary to jurisdiction.” (Defs.’ Reply Br. 2.) In a
factual challenge to jurisdiction, however, the burden does not shift to the plaintiff upon the
production of any evidence; the burden shifts only if defendant has produced evidence of
“disputed material facts.” Apex, 572 F.3d at 444 (quoting Mortensen v. First Fed. Sav. & Loan
Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). Defendants have not called Plaintiff’s standing into
question on the grounds she asserted. To the extent these arguments are relevant to the
overall dispute, they are relevant to the merits, not to standing.
B.

“Fairly Traceable”
10

Defendants’ second challenge to the traceability of Plaintiff’s alleged injuries bears only
brief discussion.

Whether a plaintiff’s injury in fact is “fairly traceable” to a defendant’s

challenged conduct hinges on the existence of a causal connection between the two. Six Star
Holdings, LLC v. City of Milwaukee, 821 F.3d 795, 803 (7th Cir. 2016). Defendants point to
Aguirre’s deposition as evidence that she was not intimidated by the sentence at issue in this
case, but rather by the fact she had a debt at all.

(Aguirre Dep. 25:22–26:9.)

As the

Defendants state: “neither [a] mistake of law nor the unpleasantness inherent in receiving a
collections letter causes actionable harm.” (Defs.’ Opening Br. 15.) “In other words, § 1692e
bars debt collectors from deceiving or misleading consumers; it does not protect consumers
from fearing the actual consequences of their debts.” Sheriff v. Gillie, 136 S. Ct. 1594, 1603
(2016). 4 As explained above, plaintiff’s subjective beliefs are not relevant to the question of
injury in fact from an allegedly threatening or misleading representation by a debt collector.
Furthermore, the two views are not mutually exclusive: Aguirre may in fact have been surprised
and intimidated by the reemergence of a debt she mistakenly believed extinguished, and the
letter may have also contained an improper threat in violation of the FDCPA. The Defendants’
effort to thread the needle by claiming the injury flows from the letter, but not the sentence within
it, is unconvincing. In either case, the offending language is “fairly traceable” to their challenged
conduct.

4

Defendants also cite to a recent FDCPA case from the Northern District of
Illinois, Bass v. Blitt and Gaines, P.C., No. 16-C-6874, 2016 WL 6877729 (N.D. Ill. Nov. 22,
2016), by means of comparison. In Bass, the debtor had received a notice stating that “[i]f you
fail to appear on the next court date the court may enter judgment against you for the amount
claimed.” Id. at *1. The court found that the debtor lacked standing as any injury flowed from
the fact of his debt and the court hearing, not the notice. Id. at *2. This case is distinguishable
as the court proceeding in question actually existed, and the sentence at issue was entirely
accurate.
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CONCLUSION
For the foregoing reasons, the Defendants’ motion to dismiss under Rule 12(b)(1) for
lack of standing [81] is denied. Plaintiff’s motion for class certification [65] is stricken without
prejudice to renewal. Status conference is set for October 19, 2017, at 9:00 a.m. Parties are
encouraged to explore possible settlement.
ENTER:

Dated: September 27, 2017

_________________________________________
REBECCA R. PALLMEYER
United States District Judge

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