Hall v. I.Q. Data International, Inc.

Filing 34

ORDER Granting Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Samuel H. Mays, Jr. on August 29, 2024. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
)
)
)
)
)
)
)
)
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)
)
)

DENISE S. HALL,
Plaintiff,
v.
I.Q. DATA INTERNATIONAL,
INC.,
Defendant.

No. 2:22-cv-02656-SHM-cgc

ORDER GRANTING MOTION TO DISMISS FOR LACK OF JURISDICTION
Plaintiff Denise S. Hall has filed an Amended Complaint
against I.Q. Data International, Inc. (“IQ Data”), alleging
violations of the Fair Debt Collection Practices Act, 15 U.S.C.
§§ 1692e-f (“FDCPA”).

(ECF No. 26.)

Before the Court is

Defendant’s October 12, 2023 Second Motion to Dismiss for Lack
of Jurisdiction (the “Motion”).1
responded

on

November

following

reasons,

the

30,

(ECF Nos. 27, 28.)

2023.

Motion

(ECF
is

No.

GRANTED

31.)
and

Plaintiff
For

the

Plaintiff’s

Amended Complaint is DISMISSED with prejudice.

Defendant’s Motion is docketed at ECF No. 27.
An
identical Motion with a supporting memorandum of law is
docketed at ECF No. 28.
The reasoning in this Order applies
with equal force to ECF Nos. 27 and 28.
1

I.

Background

Plaintiff filed her first complaint (the “Complaint”) on
September 26, 2022.
beginning

in

(ECF No. 1.)

approximately

July

Plaintiff alleged that,
2022,

Defendant2,

a

debt

collector, began contacting Plaintiff about a debt she owed on
an apartment lease. (Id. at ¶¶ 7, 9.) On first speaking with
Defendant, Plaintiff advised that she was out of work and could
not pay. (Id. at ¶ 10.) She inquired about the availability of
a payment plan and “was told that she would be able to set up
payment arrangements when able.” (Id. at ¶¶ 10, 11.)
Plaintiff contacted Defendant in late July, and Defendant
reneged on its promise to allow Plaintiff to enter a payment
plan.

(Id. at ¶¶ 20-21.) Defendant demanded payment in full by

August 1 and said that, if Plaintiff failed to pay by that
date, the debt would be reported on her credit. (Id. at ¶ 21.)
Defendant said that the debt would accrue interest every day
and that, if Plaintiff delayed payment, she would never be able
to pay off the debt because of the interest. (Id. at ¶ 22.)
According

to

Plaintiff,

Defendant

regularly

tells

consumers that payment plans are available to induce them to
gather what funds they can.

(Id. at ¶ 26.)

Then, when a

Plaintiff does not identify any of the individual
employees with whom she spoke.
The word “Defendant” is used
interchangeably to refer to Defendant as a corporate entity and
to any of the employees or representatives with whom Plaintiff
had contact.
2

2

consumer asks to set up a payment plan, Defendant refuses to
honor its prior representations and, by demanding payment in
full,

seeks

possible.

to

obtain

as

much

(Id. at ¶ 27.)

money

from

the

consumer

as

If, as a result of this ploy,

Defendant receives no payment, or only partial payment, it
routinely allows consumers to go on a payment plan. (Id. at
¶ 31.)
the

Plaintiff does not allege that she made any payment on

debt

that

generally id.)

Defendant

was

attempting

to

collect.

(See

Plaintiff asks the court to “[d]eclare” that

Defendant’s actions violate the FDCPA and award statutory and
actual damages.

(Id. at 9.)

On May 22, 2023, Defendant moved to dismiss the Complaint
under Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction.
No. 20.)

(ECF

The Court granted Defendant’s motion on September 7,

2023, finding that Plaintiff had not demonstrated standing to
sue because she had not shown an injury in fact.

(ECF No. 25.)

The Court found that the additional interest Plaintiff accrued
between

the

date

Defendant

allegedly

offered

Plaintiff

a

payment plan and the date it reneged on that offer was not an
injury for standing purposes.3

(Id. at 14-17.)

The Court

The Court also considered whether Plaintiff had
established standing based on: (1) the emotional distress
caused by Defendant’s conduct, or (2) her detrimental reliance
on Defendant’s promised payment plan, which caused her to
neglect other debts while she gathered money to make her first
payment. (ECF No. 25 at 11-14, 17-19.) Because Plaintiff no
3

3

noted initially that the accrual of interest can be an injury
in fact sufficient to establish standing.
concluded,

however,

that

Plaintiff

had

(Id. at 14-15.)
failed

to

It

establish

standing because she had not shown that Defendant was legally
obligated to offer her a payment plan in the first place.

(Id.

at 15.)
The Court considered whether, once Defendant had promised
to make a payment plan available, it had to provide that plan
to avoid making a false representation in violation of the
FDCPA.
the

(Id.)

following

The Court construed Plaintiff’s filings to make
argument:

(1)

Defendant

offered

Plaintiff

a

payment plan; (2) the FDCPA prohibits debt collectors from
making false or misleading statements; (3) if Defendant did not
ultimately

enroll

Plaintiff

in

a

payment

plan,

Defendant’s

original promise was misleading; (4) the only way for Defendant
to avoid liability under the FDCPA at this point was to offer
Plaintiff the payment plan, so that its prior promise would not
be misleading; (5) Defendant’s failure to provide a payment
plan, as required by the FDCPA, allowed additional interest to
accrue

on

Plaintiff’s

debts;

and

monetary injury conferring standing.

(6)

that

interest

was

a

(Id. at 15-16.)

longer
asserts
standing
based
on
emotional
injury
or
detrimental reliance, the Court need not address those issues
here.
4

The Court opined that “[n]either the parties’ briefing nor
the Court’s own research provides a clear answer” about whether
the FDCPA makes a debt collector’s promises enforceable.
at

16.)

Even

assuming,

however,

that

Defendant’s

(Id.

alleged

promise to provide Plaintiff with a payment plan was legally
enforceable,
established

the

Court

concluded

standing.

(Id.)

that

It

Plaintiff

found

that

had

not

Plaintiff’s

assertion that she “was told that she would be able to set up
payment

arrangements”

“Defendant
violated

made
that

a

was

too

definite

promise.”

vague

promise
(Id.

to

of

at

a

determine
payment

17.)

whether
plan

Absent

and

clearer

allegations, the Court concluded, Plaintiff could not show that
any

injury

16-17.)

was
The

traceable
Court

to

granted

Defendant’s
Plaintiff

conduct.

leave

to

(Id.
amend

at
and

instructed her that, if she sought to renew her arguments based
on increased interest, she “should be prepared to show that the
FDCPA makes a promise by a debt collector legally enforceable
(as opposed to providing only statutory damages).”

(Id. at 17

n.6.)
Plaintiff filed her Amended Complaint on September 28,
2023.
that

(ECF No. 26.)
Defendant

engaged

Plaintiff has dropped her allegations
in

rude

and

harassing

behavior

in

violation of § 1692d of the FDCPA and raises claims only under
§§

1692e

and

1692f.

(ECF

No.
5

1

at

¶¶

40-42;

No.

26

at

¶¶ 25-32.)
Complaint

Defendant filed a Motion to Dismiss the Amended
on

October

November 30, 2023.
II.

12,

2023,

and

Plaintiff

responded

on

(ECF Nos. 27, 28, 31.)

Federal Question Jurisdiction

Plaintiff asserts a cause of action under the FDCPA, a
federal statute. The Court has federal question jurisdiction
under 28 U.S.C. § 1331.
III. Standard of Review
A. Motion to Dismiss
“To

survive

a

motion

to

dismiss,

the

plaintiff

must

allege facts that, if accepted as true, are sufficient to state
a claim to relief that is plausible on its face.” Butt ex rel.
Q.T.R. v. Barr, 954 F.3d 901, 904 (6th Cir. 2020) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). Although Twombly’s
plausibility requirement is most familiar in the context of a
Rule 12(b)(6) motion testing whether a complaint has stated
facts entitling the plaintiff to relief under the pertinent
substantive

law,

plaintiffs

must

also

plausibly

allege

standing. Ass’n of Am. Physicians & Surgeons v. FDA, 13 F.4th
531, 543 (6th Cir. 2021).
A claim is plausible on its face if “the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that” the defendant is liable or that the plaintiff
has

standing.

Ashcroft

v.

Iqbal,
6

556

U.S.

662,

678

(2009)

(citing Twombly, 550 U.S. at 556); see Ass’n of Am. Physicians,
13 F.4th at 543-44.

The “plaintiff’s obligation to provide the

grounds of his entitlement to relief [or of standing] requires
more than labels and conclusions, and a formulaic recitation of
a cause of action’s elements [or of the elements of standing]
will not do.” Ryan v. Blackwell, 979 F.3d 519, 524 (6th Cir.
2020) (quoting Twombly, 550 U.S. at 555).
B.

Subject Matter Jurisdiction

Jurisdiction is a court’s power to hear and decide a case.
Siding & Insulation Co. v. Acuity Mut. Ins. Co., 754 F.3d 367,
375

(6th

Cir.

2014).

Federal

courts

are

courts

of

limited

jurisdiction and may exercise the judicial power only to the
extent authorized by Congress and the Constitution. Id. Absent
jurisdiction, a case must be dismissed. Id. The party asserting
jurisdiction has the burden of establishing it. Gaetano v.
United States, 994 F.3d 501, 505 (6th Cir. 2021).
Review of a motion to dismiss for lack of jurisdiction
depends

on

whether

the

motion

mounts

a

facial

or

factual

attack. Id. In a factual attack, the party moving to dismiss
may use affidavits or other documents outside the pleadings to
dispute

the

existence

of

particular

facts

supporting

jurisdiction. Id. There is no presumption that the allegations
in

the

complaint

are

true.

Gentek

Bldg.

Prods.,

Inc.

Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007).
7

v.

In a facial attack, the movant accepts the allegations in
the complaint as true. Enriquez-Perdomo v. Newman, 54 F.4th
855, 861 (6th Cir. 2022). Reasonable inferences are drawn in
favor of the nonmovant. Mosley v. Kohl’s Dep’t Stores, Inc.,
942 F.3d 752, 756 (6th Cir. 2019). The movant challenges only
the sufficiency of the complaint -- that is, whether the facts
alleged,

taken

as

true,

establish

jurisdiction

applicable law. Newman, 54 F.4th at 861.
accepts

as

true

all

factual

under

the

Although the court

allegations

and

draws

all

reasonable inferences in favor of the plaintiff, it does not
accept

legal

conclusions

or

unwarranted

factual

inferences.

Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008).
IV.

Analysis

Defendant

raises

a

facial

challenge

to

Plaintiff’s

standing. (ECF No. 20-1). Standing is a jurisdictional matter
and “has three well-known requirements: (1) the plaintiff must
have suffered an ‘injury in fact’; (2) that injury must have
been ‘caus[ed]’ by the defendant’s conduct; and (3) the injury
must be ‘redress[able] by a favorable decision.’” Bearden v.
Ballad Health, 967 F.3d 513, 516 (6th Cir. 2020) (alterations
in original) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,
560-61 (1992)). The principal issues in this case are whether
Plaintiff has suffered an injury in fact and, if so, whether

8

that injury was caused by Defendant’s conduct. (ECF No. 28-1 at
4-6; ECF No. 31 at 4).
“To establish an injury in fact, plaintiffs must show that
they suffered ‘an invasion of a legally protected interest’
that

is

both

‘concrete

and

particularized’

and

‘actual

or

imminent, not conjectural or hypothetical.’” Bearden, 967 F.3d
at 516 (quoting Lujan, 504 U.S. at 560-61). An injury is actual
or imminent when it has already been suffered or is “certainly
impending.” Id. (quoting Clapper v. Amnesty Int’l USA, 568 U.S.
398,

409

(2013)).

An

injury

is

“particularized”

if

it

“affect[s] the plaintiff in a personal and individual way” and
“concrete” if it is “‘de facto’; that is, it must actually
exist.” Spokeo Inc. v. Robins, 578 U.S. 330, 339-40 (2016)
(first quoting Lujan, 504 U.S. at 560 n.1; then citing De
facto, Black’s Law Dictionary (10th ed. 2014)).
The conduct about which Plaintiff complains -- that is,
Defendant’s deceptive statements -- has already occurred. (ECF
No.

26

at

suffered,

¶¶

if

7-24.)

any,

is

Therefore,
“actual”

the

rather

injury
than

Plaintiff

has

“conjectural

or

hypothetical.” Bearden, 967 F.3d at 516 (quoting Lujan, 504
U.S. at 560). Plaintiff’s claimed injury is also particularized
in

that

she

alleges

the

phone

calls

and

misleading

representations were made specifically to her in an attempt to
collect a debt she owed. (ECF No. 26 at ¶¶ 7-24.)
9

The question, then, is whether Plaintiff has suffered a
concrete injury. A concrete injury is “real, and not abstract.”
TransUnion, LLC v. Ramirez, 594 U.S. 412, 424 (2021) (quoting
Spokeo, 578 U.S. at 340). Tangible harms, such as personal
injuries, damage to physical property, and monetary loss are
concrete injuries. Id. However, an injury need not be tangible
to serve as the basis for a constitutional case or controversy.
Id. Intangible injuries, such as damage to one’s reputation or
intrusion on one’s privacy, may also be injuries in fact. Id.
In deciding whether a particular type of intangible harm
can create standing, the Supreme Court has instructed lower
courts to consider whether that harm “has a close relationship
to a harm that has traditionally been regarded as providing a
basis for a lawsuit in English or American courts.” Spokeo, 578
U.S. at 341. A “bare procedural violation, divorced from any
concrete harm” of the type traditionally recognized in law,
does not create standing to sue. Id. Congress’ judgment as to
what constitutes an injury is “instructive and important,” but
Congress may not force the courts to decide a case in the
complete absence of an injury similar to those for which courts
have typically provided redress. Id.
Congress may, however, “elevat[e] to the status of legally
cognizable

injuries

concrete,

de

facto

injuries

that

were

previously inadequate in law.” Id. (alteration in original)
10

(quoting Lujan, 504 U.S. at 578). In other words, Congress can
confer standing on an individual whose injury, although roughly
of the type traditionally recognized by courts, would otherwise
have been deemed too trivial or too dissimilar to a recognized
type of harm to be redressed in the absence of a statute. See
TransUnion, 594 U.S. at 424-26.
As an illustration of these principles, the Supreme Court
concluded in TransUnion LLC v. Ramirez that the defendant had
concretely injured the plaintiffs by misleadingly suggesting to
various

businesses

that

the

plaintiffs

were

on

a

list

of

“terrorists, drug traffickers, [and] other serious criminals.”
Id.

at

2201,

2208-09.

That

mistaken

identification,

which

plaintiffs alleged was a violation of the Fair Credit Reporting
Act, was a concrete injury because it was similar to the tort
of

defamation.

Id.

at

2200,

2208-09.

When

the

defendant

responded that it had only identified plaintiffs as “potential
match[es]” for the list and that its statements were therefore
not

false,

concluded

as

that

required

for

it

no

made

a

defamation

difference.

Id.

claim,
at

the

2209.

Court
For

a

plaintiff to have standing based on a statutory violation, the
plaintiff’s harm need not be an “exact duplicate” of a harm
traditionally recognized by courts, but need only have a “close
relationship” to that harm. Id.

11

Applying these precedents, the Sixth Circuit has found
that a plaintiff “does not automatically have standing simply
because Congress authorizes a plaintiff to sue a debt collector
for failing to comply with the FDCPA.” Ward v. NPAS, Inc., 9
F.4th 357, 361 (6th Cir. 2021). An FDCPA plaintiff must show
“either that the procedural harm itself is a concrete injury of
the

sort

traditionally

recognized

or

that

the

procedural

violations caused an independent concrete injury.” Id.
A.

Plaintiff Has Suffered a Concrete Injury

Plaintiff
procedural

does

violations

not
are

traditionally recognized.4
asserts

that

Defendant’s

argue

that

concrete

Defendant’s

the

sort

(See generally ECF No. 31.)

She

violations

injuries

caused

of

alleged

her

independent

Although Plaintiff does not argue that Defendant’s
alleged violations are injuries of the kind traditionally
recognized by common law, she repeatedly emphasizes that
Defendant’s conduct was the type of behavior that the FDCPA was
designed to address. (ECF No. 31 at 4, 6-7, 10). The Sixth
Circuit formerly applied the rule that a bare procedural
violation could create a concrete harm for standing purposes,
where the harm was the “type of harm the [statute] was designed
to prevent.”
Lyshe v. Levy, 854 F.3d 855 at 859 (6th Cir.
2017); Garland v. Orlans, PC, 999 F.3d 432, 437 (6th Cir.
2021). That rule was abrogated by TransUnion, 594 U.S. at 437,
which held that the risk of future harm is not concrete unless
the harm has materialized or “the plaintiffs were independently
harmed by their exposure to the risk itself.” Ward, 9 F.4th at
361.
Plaintiff’s argument that Defendant’s conduct was the
kind of behavior the FDCPA was designed to penalize is not
relevant to the Court’s standing analysis.
4

12

concrete injury.

(Id. at 2.)

Specifically, she asserts that

Defendant injured her by refusing to allow her to enter into a
payment plan, and that, had she been placed on a payment plan
when she called Defendant in July 2022, she would have avoided
additional interest that later accrued on her debt.
4-5).

(Id. at

Plaintiff is correct that the accrual of additional

interest on a plaintiff’s debt resulting from a defendant’s
unlawful actions can serve as an injury in fact for standing
purposes.

See Chuluunbat v. Weltman, Weinberg & Reis Co., No.

21-1584, 2022 WL 1599325, at *7 (7th Cir. May 20, 2022)5;
TransUnion, 594 U.S. at 425 (“If a defendant has caused . . .
monetary injury to the plaintiff, the plaintiff has suffered a
concrete injury.”).
The Court’s prior order noted that interest can be an
injury conferring standing, but the Court dismissed Plaintiff’s
Complaint

because

her

allegations

about

interest

were

too

Defendant’s attempts to distinguish Chuluunbat are not
persuasive. (ECF No. 28-1 at 10.) Defendant explains that, in
Chuluunbat, the plaintiff was confused about whether interest
was accruing on his debt and that the debt collector’s
misrepresentations caused him to reject a favorable settlement
offer and prioritize paying a debt with a lower interest rate.
(Id.); 2022 WL 1599325 at *3-4.) Defendant asserts that it was
the plaintiff’s loss of the settlement offer, rather than the
accrual of interest, that conferred standing. (ECF No. 28-1 at
10.)
However, the Seventh Circuit describes the accrued
interest and the expiration of the settlement offer as separate
injuries. Chuluunbat, 2022 WL 1599325 at *4 (“[T]he interest
is not the only injury: Chuluunbat also let the time-sensitive
settlement offer . . . lapse”) (emphasis added).
5

13

vague.

(ECF No. 25 at 16.)

The Court found that Plaintiff did

“not adequately allege that Defendant made, and then broke, any
promise”

because

employee

used

Plaintiff

definite,

did

certain

not

explain

language

or

“whether
made

a

the
vague

allusion to the possibility of a payment plan” or “whether the
purported promise included a particular date by which the plan
might be made available.”

(Id. at 16-17.)

Plaintiff’s Amended

Complaint contains new details about the conversation in which
Defendant allegedly offered her a payment plan, details not
included in her original Complaint.

(ECF No.

26 at ¶¶ 12-18.)

Specifically, Plaintiff alleges that, on or about July 21,
2023, Plaintiff asked Defendant if it could agree on a payment
plan, and Defendant told Plaintiff she “can do [a] payment
plan.”

(Id.)

Plaintiff alleges that Defendant said that any

plan would be based on the debt owed at the time the plan was
arranged, and, thus, interest would no longer accrue.6 (Id. at
3.)
do

Plaintiff alleges that, when she asked if all she had to
was

call

back

responded “correct.”

to

set

(Id.)

up

the

payment

plan,

Defendant

Plaintiff concludes that, when she

Defendant asserts that Plaintiff “does not allege that
IQ Data offered to freeze interest if she entered into” a
payment plan. (ECF No. 28-1 at 7.) To the contrary, Plaintiff
specifically pled that she and Defendant agreed to a payment
plan “tied to the balance of the debt at the time the payment
plan was arranged” so that “the debt would stop accruing
interest.” (ECF No. 26 at ¶ 3.)
6

14

called Defendant back at the end of July, Defendant reneged on
its promise and demanded full payment.

(Id.)

These additional facts, although somewhat sparse, address
the

Court’s

earlier

concerns.

Plaintiff

now

alleges

that

Defendant specifically told Plaintiff that she “can do” a plan,
which,

viewing

the

facts

in

the

light

most

favorable

to

Plaintiff, is the “definite, certain language,” that would lead
a consumer to believe a payment plan was available.
25 at 16-17; 26 at ¶¶ 12-18.)

(ECF No.

Plaintiff also alleges that the

only requirement to initiate the plan was to call back and that
any such plan would be based on the present balance of debt
without the additional accrual of interest.

(ECF No. 26 at

¶¶ 12-18.)
Defendant argues that the Amended Complaint does not state
“the amount of payments due, the length of the payment plan’s
term, or the date that it was to conclude,” and that Plaintiff
had not shown that Defendant’s actions were “materially false
or

misleading”

sophisticated

such

that

consumer.”

they
(ECF

would
No.

confuse

28-1

at

“the

7-8.)

least
These

questions speak to whether Plaintiff has adequately pled the
elements of an FDCPA violation and would be more appropriate in
a Rule 12(b)(6) motion to dismiss for failure to state a claim.
Defendant has not raised any arguments under Rule 12(b)(6) or
cited relevant caselaw. See, e.g., Twombly, 550 U.S. at 556.
15

The relevant question for standing purposes is whether
Plaintiff has pled sufficient facts to allege an injury that is
concrete, particularized, actual, and imminent.
594 U.S. at 423.

TransUnion,

Whether that injury rises to the level of an

FDCPA violation is a merits question that need not be resolved
at the standing stage.

Grow Michigan, LLC v. LT Lender, LLC,

50 F.4th 587, 592-93 (6th Cir. 2022) (distinguishing between
the definition of causation for standing purposes and what must
be proven at the merits stage); see, e.g, Rieves v. Town of
Smyrna, 67 F.4th 856, 862 (6th Cir. 2023)(distinguishing what a
plaintiff

must

prove

to

prevail

on

the

merits

“under

the

applicable legal standard,” and what a plaintiff must prove to
establish standing).

Plaintiff’s allegations are sufficiently

detailed for the Court to infer that Defendant offered her a
payment plan under certain conditions and then revoked its
offer, during which time additional interest on her debt had
accrued.

That is enough for the Court to infer that Plaintiff

was injured, even if additional details would be required to
survive a motion to dismiss.
B.
To

Plaintiff’s Injury Was Not Caused By Defendant’s
Conduct Because the FDCPA Does Not Provide Relief
meet

the

constitutional

requirements

of

standing,

Plaintiff must show that any injury suffered was caused by
Defendant’s conduct.

Bearden, 967 F.3d at 516 (alterations in

16

original) (quoting Lujan, 504 U.S. at 560-61).

The parties

agree that Defendant had no obligation to offer Plaintiff a
payment plan to resolve her debt.
at 8.)

(ECF No. 28-1 at 6-8; No. 31

The parties dispute whether, once Defendant had offered

Plaintiff a payment plan, it was obligated to follow through in
order to avoid liability for making a false statement under the
FDCPA.

(ECF

No.

28-1

at

7-8;

No.

31

at

10.)

Whether

Plaintiff’s injury is caused by Defendant’s conduct turns on
whether Defendant was obligated to provide such a payment plan.
In its order dismissing Plaintiff’s Complaint, the Court
opined that whether the FDCPA makes a debt collector’s promise
enforceable

in

some

or

all

circumstances

question of first impression.

appears

to

be

a

The Court instructed Plaintiff

that, if she renewed her arguments based on increased interest
in her Amended Complaint, she “should be prepared to show that
the

FDCPA

makes

a

promise

by

a

debt

collector

legally

enforceable (as opposed to providing only statutory damages).”
(ECF No. 25 at 17 n. 6.)

Plaintiff has not done so.

Plaintiff argues that the plain language of the FDCPA
permits

courts

because

the

damages.

to

FDCPA

enforce
provides

the

promises

for

(ECF No. 31 at 10.)

both

of

actual

debt
and

collectors
statutory

Actual damages “would include

benefit of the bargain damages, and putting a non-breaching
party in the position it would have been but-for the breach.”
17

(Id.)

Giving

Plaintiff

the

benefit

of

her

bargain,

she

reasons, would require enforcing the proposed payment plan and
compensating her for any additional interest accrued because
Defendant did not provide the plan.

(Id.)

It is unclear

whether Plaintiff is arguing that putting her in the position
she would have been but-for the breach means compensating her
for the additional interest, or ordering specific performance
by

requiring

Defendant

to

offer

Plaintiff

the

plan

on

its

original terms.
In her Response in Opposition to Defendant’s Motion to
Dismiss,

Plaintiff

repeatedly

refers

Defendant’s promised payment plan.

to

“enforce[ing]”

(ECF No. 31 at 2, 8, 10.)

Plaintiff’s Amended Complaint, however, describes this case as
an “action for damages.”

(ECF No. 26 at ¶ 26.)

In her request

for relief, Plaintiff seeks “statutory and actual damages.”
(Id.

at

5.)

injunctive

The

relief.

Amended

Complaint

(Id.

5-6.)

at

does

The

not

Court

reference
understands

Plaintiff’s Amended Complaint to seek only statutory damages
and

actual

damages

for

the

accrual

Defendant’s

alleged

deception,

not

of

the

interest

based

enforcement

of

on
the

payment plan Defendant allegedly offered.
Plaintiff has not cited any binding authority for her
proposition that the term “actual damages” includes “benefit of
the bargain” damages and, thus, damages based on the accrual of
18

additional interest.7

Black’s Law Dictionary defines “actual

damages” as the “amount awarded to a complainant to compensate
for a proven injury or loss.”
(12th ed. 2024).
separately,

as

Damages, Black’s Law Dictionary

“Benefit of the bargain damages” is defined
the

damages

“that

a

breaching

party

to

a

contract must pay to the aggrieved party, equal to the amounts
that

the

aggrieved

party

would

have

received,

including

profits, if the contract had been fully performed,” also known
as “expectation loss.”
guidance

about

if

or

Id.
when

The dictionary does not provide
the

terms

“actual

damages”

and

“benefit of the bargain damages” overlap.
The
benefit

Restatement
of

the

2d

of

bargain

Contracts

damages

in

discusses
separate

actual

and

subsections.

Section 347(a) of the Restatement explains that “[c]ontract
damages are ordinarily based on the injured party’s expectation
interest

and

are

intended

to

give

him

the

benefit

of

the

bargain by awarding him a sum of money that will, to the extent
possible, put him in as good a position as he would have been
in had the contract been performed.”
separately, in § 347(e).
the

party’s

actual

loss

“Actual loss” is defined

The Restatement goes on to say that
may

be

less

than

the

party’s

expectation damages if, for example, “he makes an especially
The only authority Plaintiff cites is a 2015 case from
the Texas Court of Appeals, which is not persuasive and does
not bind this or any other federal court. (ECF No. 31 at 10.)
7

19

favorable substitute transaction, so that he sustains a smaller
loss than might have been expected.”
that

benefit

of

the

bargain

or

This distinction suggests

expectation

damages

may

be

broader than actual damages, and that the authorization of
actual damages does not necessarily mean that the prevailing
party is entitled to the benefit of her bargain.

Id.

The Supreme Court has opined that “the precise meaning of
the term [actual damages] changes with the specific statute in
which it is found.”

FAA v. Cooper, 566 U.S. 284, 292 (2012)

(internal citations, quotation marks omitted) (discussing when
actual damages can include nonpecuniary harm).

Although the

Supreme Court has emphasized that the term “actual damages” has
a “chameleon-like quality,” based on “the particular context in
which

the

term

appears,”

Plaintiff

has

not

provided

any

statutory analysis about the meaning of “actual damages” in the
FDCPA.

Plaintiff has not cited -- and the Court has not found

--

FDCPA

any

cases

opining

on

the

statutory

definition

of

“actual damages,” or granting a plaintiff expectation damages
to recover the benefit of her bargain.8

Actual damages in FDCPA cases typically consist of any
out-of-pocket
expenses
plus
compensation
for
emotional
distress.
For example, in Blevins v. MSV Recovery, LLC, No.
1:19-cv-276, 2020 WL 4365634, at *4 (S.D. Ohio Jul. 30, 2020),
the court awarded actual damages based on the plaintiff’s
emotional distress and economic loss.
The economic damages
were to compensate the plaintiff for the $100 fee he spent
consulting a lawyer about declaring bankruptcy. Id. The court
8

20

Even if the Court were to read Plaintiff’s Complaint to
seek specific performance, she has not shown that actual or
benefit-of-the-bargain damages includes specific performance.
Damages

are

Damages,

specifically

Black’s

dictionary

Law

defines

defined

Dictionary

as

monetary

(12th

ed.

“benefit-of-the-bargain

compensation.
2024).

The

damages”

as

“[d]amages that a breaching party to a contract must pay to the
aggrieved party.”

Id. (emphasis added.)

of

“Enforcement

Damages”

Injunction”
Contracts.

and
are

separate

by

topics

“Enforcement by Award

Specific
in

the

Performance

Restatement

and

2d

of

Compare §§ 346-56 with §§ 357-69.

Plaintiff cites no case where a court enforced a debt
collector’s

promise

violate the FDCPA.
case.9

because

reneging

on

that

promise

would

The Court’s own research has found no such

(ECF No. 26 at 16.)

Considering whether specific

described this fee as “just the type of ‘out-of-pocket’ expense
compensable as actual damages under the FDCPA.” Id.; see also
Davis v. Creditors Interchange Receivable Management, LLC, 585
F.Supp.2d 968 (N.D. Ohio 2008) (explaining that the “FTC
Commentary to the FDCPA states that these ‘actual damages’ for
FDCPA violations include ‘damages for personal humiliation,
embarrassment, mental anguish, or emotional distress’ as well
as ‘out-of-pocket expenses’”); Hoffman v. GC Services Ltd.
Partnership, No. 3:08-cv-255, 2010 WL 9113645, at *17 (E.D.
Tenn. 2010); Avery v. Client Resolution Management, LLC, No.
1:20-cv-01612, 2020 WL 11613184 (N.D. Ohio Dec. 17, 2020).
Not all promises made by a debt collector are
enforceable under the FDCPA. Van Hoven v. Buckles & Buckles,
P.L.C., 947 F.3d 889, 894 (6th Cir. 2020) (stating that
immaterial false statements do not violate the FDCPA); see also
id. (“A debt collector who promises to send dunning letters in
9

21

performance is available as a remedy for a violation of the
Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-17
(1974),

the

United

States

District

Court

for

the

Eastern

District of Texas found that the plaintiff was not entitled to
specific

performance

because

specific

performance

is

an

equitable remedy available only in breach-of-contract cases.
Hollenshead v. Bank of America, N.A., No. 4:18-CV-00724-ALMCAN, 2020 WL 4615096, at *10 (E.D. Tex. May 19, 2020).
In the majority of FDCPA cases where a plaintiff seeks
specific performance, the plaintiff is also pursuing claims for
breach of contract or on a promissory estoppel theory.

Kemboi

v. Ocwen Loan Servicing, LLC, Nos. 3:11-CV-36(L), 3:11-CV-37,
2012 WL 2571287, at *5 (N.D. West Virginia Jul. 2, 2012); In re
JP Morgan Chase Mortg. Modification Litigation, 880 F.Supp.2d
220, 238-44 (D. Mass. 2012); Tedder v. Deutsche Bank Nat. Trust
Co., 863 F.Supp.2d 1020, 1033-40 (D. Haw. 2012); Scholastic
Services, Inc. v. First Midwest Bancorp, Inc., No. 2:15-CV-211,
2015 WL 5772526, at *2 (N.D. Ind. Sept. 30, 2015); Hollenshead
v. Bank of America, N.A., No. 4:18-CV-724, 2020 WL 3496335, at
*1

(E.D.

Tex.

June

29,

2020).

Plaintiff

is

not

breach-of-contract or promissory estoppel claims.

pursuing
She only

seeks relief under the FDCPA.

one font
Act.”).

but

uses

another

. . .

22

[does]

not

[violate]

the

Plaintiff bears the burden of establishing jurisdiction.
Gaetano, 994 F.3d at 505.

Absent caselaw establishing that

debt collectors must honor promises where necessary to avoid
FDCPA liability, or that the FDCPA implicitly makes a debt
collector’s

promises

enforceable

by

granting

plaintiffs

the

benefit of their bargain or specific performance as part of
actual damages, Plaintiff can obtain no relief under the FDCPA.
She lacks standing to pursue this action.
V.

Conclusion

Plaintiff
standing.
accrued

has

not

adequately

alleged

that

she

has

She has plausibly alleged that the interest that

on

her

debt

is

an

injury

for

standing

purposes.

However, Plaintiff has not shown that her injury was caused by
Defendant’s

conduct

because

provide a payment plan.

Defendant

was

not

obligated

to

The FDCPA does not allow specific

performance or the damages that Plaintiff seeks.
Because Plaintiff has not carried her burden to establish
standing,

the

Motion

to

Dismiss,

ECF

Nos.

27

and

28,

GRANTED.
SO ORDERED this 29th day of August, 2024.

/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

23

is