Last week, the U.S. Court of Appeals for the Eleventh Circuit ordered rehearing en banc in Hunstein v. Preferred Collection and Management Services, Inc.  Yesterday, the Eleventh Circuit issued a memorandum indicating that for purposes of the en banc rehearing, the Court wants counsel to focus their briefs on the question: “Does Mr. Hunstein have Article III standing to bring this lawsuit?”

The Court also directed Preferred Collection and Mr. Hunstein to serve and file their briefs by, respectively, December 23, 2021 and January 18, 2022.  An en banc reply brief must be filed by February 1, 2022 and oral argument will be conducted during the week of February 21, 2022.

Although the Court has asked the parties to focus their briefs on Mr. Hunstein’s Article III standing, the Court could still reach the question of whether Mr. Hunstein has stated a FDCPA claim and conclude that he has not.  In the rehearing, the Court must decide whether to affirm or reverse the district court’s dismissal of the complaint for failing to state a claim.  The district court concluded that Mr. Hunstein had not sufficiently alleged that the debt collector’s transmittal of information to the vendor violated Section 1692c(b) of the FDCPA because the transmittal did not qualify as a “communication in connection with the collection of any debt.”

If the Eleventh Circuit concludes that Mr. Hunstein has Article III standing, it could also decide to affirm the district court’s dismissal for failure to state a FDCPA claim.  Alternatively, if the Eleventh Circuit rules that Mr. Hunstein does not have standing, it might still consider whether Mr. Hunstein has stated a FDCPA claim but any such discussion would be dicta.

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