Tenth Circuit Holds That a Single Phone Call That the Debtor Didn’t Even Answer Created Standing Under the FDCPA, Breaking with the Seventh Circuit

In a blog entry dated December 16, 2020, I summarized five decisions by the Seventh Circuit that dramatically crimped Article III standing in Fair Debt Collection Practices Act (FDCPA) cases. In yesterday’s decision, Lupia v. Medicredit, No. 20-1294 (10th Cir. Aug. 17, 2021), the Tenth Circuit expressly rejects the Seventh Circuit’s approach and holds that even a single phone call was a sufficient intrusion upon privacy to constitute an injury for standing purposes for claims under 15 U.S.C. §§ 1692c(c) and 1692g(b).  

“It was just one day. Or that’s how Medicredit, the debt collection agency, tells it. On a Monday, Medicredit received a letter from a consumer, Elizabeth Lupia, demanding that it cease calling her about an unpaid medical debt. The next day, on Tuesday [May 8, 2017], before Medicredit processed the letter, it again called Ms. Lupia regarding the debt. This call formed the basis of Ms. Lupia’s suit under the Fair Debt Collection Practices Act (FDCPA).”

Lupia did not even answer the May 8 phone call. “When she didn’t answer the call, Medicredit left Ms. Lupia a voicemail about the debt. That was the last time that Medicredit called Ms. Lupia.”

The district court granted Lupia summary judgment on liability. It held that she had Article III standing despite what appeared to be a minimal intrusion: “the violation presented a ‘material risk of harm to [Ms. Lupia’s] underlying concrete interest,’ . . . that is, allowing abusive debt-collection practices to ‘go unchecked’ would likely disrupt her life . . . . That interest, it determined, was sufficiently concrete to confer standing.”

The Tenth Circuit affirms. Regarding the standing issue, Lupia “alleged that Medicredit’s call caused her ‘to suffer intangible harms, which Congress has made legally cognizable in passing the FDCPA.’ . . . . We conclude that Ms. Lupia sufficiently alleged concrete harm.”

The panel holds that the interest protected in this action was comparable to common-law privacy. The FDCPA “imposes liability for intrusions on a plaintiff’s privacy, such as when a defendant demands payment of a debt by making repeated telephone calls ‘with such persistence and frequency as to amount to a course of hounding the plaintiff.’ . . . . Ms. Lupia suffered a similar harm when Medicredit made an unwanted call and left her a voicemail about a debt, despite her having sent written notice disputing the debt and requesting that it cease telephone communications. Thus, Ms. Lupia suffered an injury bearing a ‘close relationship’ to the tort of intrusion upon seclusion.”

It rejects the suggestion that a single, unanswered call caused no injury. “Though a single phone call may not intrude to the degree required at common law, that phone call poses the same kind of harm recognized at common law—an unwanted intrusion into a plaintiff’s peace and quiet.”

The panel also finds the allegation of injury in the complaint sufficient to invoke standing. “As noted, Ms. Lupia alleged in her Complaint that Medicredit caused her to suffer ‘intangible harms’ that Congress’ made legally cognizable in passing the FDCPA.’ . . . . Coupled with Ms. Lupia’s factual allegations about the receipt of an unwanted phone call and voicemail, her allegations suffice. Indeed, Ms. Lupia asserted the same privacy interests when Medicredit contested her standing in its motion for summary judgment.”

Finally, the panel declines to follow the recent line of authority in the Seventh Circuit. (And it is worth noting that a couple of Seventh Circuit judges have expressed their own reservations in separate opinions, see the May 17, 2021 post.) “For one, those cases predate the Supreme Court’s decision in TransUnion [LLC v. Ramirez, 141 S. Ct. 2190 (2021)] in which the Court clarified the Spokeo standing requirements, including that the tort of intrusion upon seclusion is recognized as an intangible harm providing a basis for a lawsuit in American courts . . . . Further, none of the Seventh Circuit cases address § 1692g(b). And though [one Seventh Circuit case] analyzes § 1692c(c), it dealt with a plaintiff’s complaints of ‘stress and confusion’—not an invasion of privacy.”

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