The Sixth Circuit recently made clear its position that “Congress cannot override the baseline requirement[s] of Article III of the U.S. Constitution by labeling the violation of any requirements of a statute a cognizable injury.” In Hagy v. Demers & Adams, 2018 U.S. App. LEXIS 3710, 882 F.3d 616 (6th Cir. 2018), a letter from a law firm advising the consumer that the creditor would not seek recovery of the deficiency balance resulted in an FDCPA claim. The alleged violation? The letter violated the 15 U.S.C. §1692e(11) because it did not disclose the communication was from a debt collector.
The letter read as follows:
This letter is in follow up to our conversation of Monday, June 28, 2010 wherein we discussed the above referenced matter.
Pursuant to our conversation, I informed you that we have received the executed Warranty Deed in Lieu of Foreclosure signed by the Hagy[s]. Furthermore, you inquired as to should a deficiency balance be realized after the sale of the collateral would Green Tree pursue Mr. & Mrs. Hagy for the amount of the deficiency. I have been informed by my client that in return for Mr. & Mrs. Hagy executing the Warranty Deed in Lieu of Foreclosure Green Tree will not attempt to collect any deficiency balance which may be due and owing after the sale of the collateral.
I believe this letter satisfies any and all of your concerns.
Should you have any questions with respect to this matter, please do not hesitate to contact me.
Hagy at *7-8.
As acknowledged by the consumers, the letter was accurate and, “[f]ar from causing the Hagys any injury, tangible or intangible, the… letter gave them peace of mind…” Importantly, there were no allegations that the consumers suffered actual injury or damages from the letter.
The issue on appeal was whether Congress’ creation of a statutory injury and damages pursuant to 15 U.S.C. §1692e(11) satisfied Article III’s requirement of an injury in fact. The court held that it did not. In doing so, the court refused to endorse an “anything-hurts-so-long-as-Congress-says-it-hurts theory” of Article III and further rejected the Eleventh Circuit’s rationale in Church v. Accretive Health, Inc.- that a bare violation of section 1692e(11) is sufficient to create standing. Looking to the legislative record and the FDCPA, the court found no finding by Congress that the failure to disclose the communication was from a debt collector always creates injury. The court concluded that “[a]lthough Congress may ‘elevate’ harms that ‘exist’ in the real world before Congress recognized them to actionable legal status, it may not simply enact an injury into existence, using something that is not remotely harmful into something that is.” Hagy at *11. The court’s opinion emphasizes the limitations of statutory violations and the importance for defense counsel to continue to analyze bare statutory violations against the Article III minimum standing requirements. At a minimum, the court’s opinion should provide debt collectors with some solace against the absurd.