On September 14, 2016, defendant JPMorgan Chase Bank, N.A. (“Chase”) moved for summary judgment on plaintiff Tina Bellino’s putative class action complaint, which alleges that Chase violated New York state law by presenting Plaintiff’s satisfaction of mortgage to the county clerk approximately thirty-two days after the mortgage was paid in full—two days in excess of the thirty-day requirement established by the law.  Bellino v. JPMorgan Chase Bank, N.A., No. 1:14-cv-03139 (S.D.N.Y. September 14, 2016). Importantly, Chase’s motion represents yet another effort to defeat plaintiffs’ lawsuits by relying on the U.S. Supreme Court’s recent articulation of the “injury in fact” standing requirement in Spokeo v. Robins, Inc.  See 136 S. Ct. 1540 (2016).

As the LenderLaw Watch Blog has previously reported—here,here, here, and here—the U.S. Supreme Court’s Spokeo decision provided guidance on the “injury in fact” requirement that plaintiffs must meet before they can properly file a claim.  In Spokeo, The Court observed that for a harm to amount to an “injury in fact,” it must be both “concrete” and “particularized.” Although the Court did not define the limit of what may constitute a “concrete” harm, the Court’s opinion nevertheless suggested that the alleged harm must include something more than a “bare procedural violation” of a statute.  In other words, the Court recognized that not all statutory violations result in actual harm.  That being said, the Spokeo court left open the possibility that violations of consumers’ statutory procedural rights may be sufficient in certain circumstances so as to constitute a concrete harm.

The Bellino plaintiff argued that she suffered an “injury in fact” in the form of a deprivation of her right to have a timely certificate of discharge recorded. Relying on Spokeo, Chase argued that thistwo-day delay amounted to nothing more than a “bare procedural violation” of the New York law and that the plaintiff did not suffer any actual injury. As a result, Chase argued that the plaintiff did not satisfy Spokeo’s standing requirement that a harm must be concrete.

Importantly, the Bellino case is the most recent among a series of federal cases involving the issue of whether a plaintiff’s harm is sufficiently concrete to support standing under Spokeo.  See, e.g., Hancock v. Urban Outfitters, Inc., 2016 WL 3996710, at *4 (D.C. Cir. July 26, 2016) (invoking Spokeo to vacate the district court’s judgment and remand with instructions to dismiss the plaintiffs’ complaint as plaintiffs did not allege any concrete injury in fact stemming from alleged violations of D.C. law); Jamison v. Bank of Am., 2016 WL 3653456 (E.D. Cal. July 7, 2016) (dismissing plaintiff’s TILA claim for lack of standing under Spokeo based on the fact that “a procedural violation of the TILA requirements for payoff statements [did] not inherently establish concrete harm”); Sartin v. EKF Diagnostics, Inc., 2016 WL 3598297 (E.D. La. July 5, 2016) (dismissing plaintiff’s TCPA claim because plaintiff failed to articulate an injury aside from the alleged statutory violation, as required by Spokeo); Gubala v. Time Warner Cable, Inc., 2016 WL 3390415 (E.D. Wisc. June 17, 2016) (dismissing plaintiff’s claim for failure to allege a concrete injury beyond the defendant’s procedural violation of the Cable Communications Policy Act by retaining the plaintiff’s personally identifiable information, as required by Spokeo); Smith v. Ohio State Univ., 2016 WL 3182675 (S.D. Ohio June 8, 2016) (dismissing plaintiffs’ FCRA claim for failure to articulate a concrete injury resulting from the defendant’s procedural breach of the FCRA, as required by Spokeo); Khan v. Children’s Nat’l Health Sys., 2016 WL 2946165 (D. Md. May 19, 2016) (dismissing plaintiff’s claim for failure to “connect the alleged statutory and common law violations to a concrete harm,” as required by Spokeo); see also Schwartz v. HSBC Bank USA, N.A., No. 1:14-cv-09525 (S.D.N.Y. July 18, 2016) (defendant moved to dismiss plaintiff’s complaint—which alleged that the Bank failed to provide a warning that late credit card payments could result in the imposition of a penalty—by relying on Spokeo, as it was uncontested that the plaintiff suffered no actual damages and was not in fact charged a penalty for late payment).

Industry members should continue to monitor this case as it develops because it will provide further insight into how federal courts are interpreting the Spokeo standing requirements and will inform the degree of harm necessary to support future claim.