766 F.3d 98 (1st Cir. 2014), 13-2478, Pollard v. Law office of Mandy L. Spaulding

Docket Nº:13-2478
Citation:766 F.3d 98
Opinion Judge:SELYA, Circuit Judge.
Party Name:ROBBIE POLLARD, Plaintiff, Appellee, v. LAW OFFICE OF MANDY L. SPAULDING, Defendant, Appellant
Attorney:Scott Douglas Burke, Tory A. Weigand, Alan E. Brown, and Morrison Mahoney LLP on brief for appellant. Sergei Lemberg and Lemberg Law, LLC on brief for appellee.
Judge Panel:Before Kayatta, Baldock[*] and Selya, Circuit Judges. BALDOCK, Circuit Judge, dissenting. BALDOCK, Circuit Judge, dissenting.
Case Date:September 08, 2014
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Section 1692g(b) of the Fair Debt Collection Practices Act (FDCPA) requires that a debt collector’s collection activities and communications “not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.” In this case, Plaintiff, a “consumer” within the meaning of the FDCPA, incurred a debt, which... (see full summary)


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766 F.3d 98 (1st Cir. 2014)

ROBBIE POLLARD, Plaintiff, Appellee,



No. 13-2478

United States Court of Appeals, First Circuit

September 8, 2014

Page 99



Scott Douglas Burke, Tory A. Weigand, Alan E. Brown, and Morrison Mahoney LLP on brief for appellant.

Sergei Lemberg and Lemberg Law, LLC on brief for appellee.

Before Kayatta, Baldock[*] and Selya, Circuit Judges. BALDOCK, Circuit Judge, dissenting.


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SELYA, Circuit Judge.

This is one of the relatively rare occasions on which we have been asked, in a non-class-action setting, to visit the precincts patrolled by the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § § 1692-1692p. Specifically, we are tasked with determining whether a particular collection letter satisfies section 1692g(b) of the FDCPA, which requires that a debt collector's collection activities and communications " not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor." Id. § 1692g(b). The district court concluded that the collection letter at issue here fell short of this mark.

We hold that, for FDCPA purposes, a collection letter is to be viewed from the perspective of the hypothetical unsophisticated consumer. Applying this standard, we affirm the judgment below.


The raw facts, memorialized by the parties' pleadings, are undisputed. At some indeterminate point in time, plaintiff-appellee Robbie Pollard, who is a " consumer" within the meaning of 15 U.S.C. § 1692a(3), allegedly incurred a debt of approximately $611.84. The Law Office of Mandy L. Spaulding, the defendant and appellant here, subsequently was retained to collect the debt. In carrying out this assignment, the defendant was operating as a " debt collector" as defined in section 1692a(6).

On October 23, 2012, the defendant sent the plaintiff a collection letter (a copy of which appears as an appendix to this opinion). This letter was typed on the defendant's letterhead over the signature " Mandy L. Spaulding, Esq." The letter explained that the defendant had been retained to collect the monies allegedly owed and was " not inclined to use further resources attempting to collect this debt before filing suit." It further explained that the defendant planned to collect the debt " through whatever legal means are available and without [the plaintiff's] cooperation." It went on to inform the plaintiff that the defendant was " obligated to [its] client to pursue the next logical course of action without delay" and described how the plaintiff could make payments.

Below the signature block, in smaller print, were several paragraphs preceded by the caption " NOTICE OF IMPORTANT RIGHTS." These paragraphs contained the statutorily mandated notice of consumer rights. See id. § 1692g(a)(3)-(5).

Following her receipt of this collection letter, the plaintiff contacted the defendant to dispute ownership of the debt and request validation. Approximately one month after the collection letter arrived, the plaintiff sued. In her complaint, she asserted that the defendant had violated

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sundry provisions of the FDCPA, including section 1692g. The defendant answered and, several months later, moved for judgment on the pleadings. See Fed.R.Civ.P. 12(c). The district court concluded, among other things, that the collection letter violated section 1692g as a matter of law.1 See Pollard v. Law Office of Mandy L. Spaulding, 967 F.Supp.2d 470, 477 (D. Mass. 2013). The parties thereafter agreed upon the damages and attorneys' fees recoverable by the plaintiff. A final judgment entered, which preserved the defendant's right to appeal from the ruling that the collection letter transgressed section 1692g. This timely appeal followed.


Congress enacted the FDCPA to eliminate " the use of abusive, deceptive, and unfair debt collection practices." 15 U.S.C. § 1692(a). The Act not only proscribes certain invidious methods of debt collection but also requires debt collectors to furnish to consumers a notice, commonly called a " validation notice," limning certain rights and information. See id. § 1692g(a). Among other things, a debt collector must inform the consumer that she has thirty days from receipt of the validation notice within which to dispute the debt before it is assumed to be valid and that if she disputes the debt, the debt collector will provide her with verification of the debt's validity. See id. § 1692g(a)(3)-(4). If the consumer either disputes the debt or requests information concerning the identity of the original creditor within this thirty-day period, the debt collector must suspend collection efforts until it supplies such data. See id. § 1692g(b).

Prior to 2006, the FDCPA did not expressly require that the validation notice convey the consumer's rights in a nonconfusing manner. Courts nevertheless glossed the statute with such a requirement and routinely interpreted section 1692g to bar the use of collection letters that overshadow or contradict the validation notice. See McMurray v. ProCollect, Inc., 687 F.3d 665, 668 n.1 (5th Cir. 2012). The Financial Services Regulatory Relief Act of 2006 removed any lingering doubt on this score: it amended the FDCPA to make pellucid that " [a]ny collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor." See Pub. L. No. 109-351, § 802(c), 120 Stat. 1966, 2006-07 (codified at 15 U.S.C. § 1692g(b)).

Against this backdrop, we turn first to a late-blooming issue that implicates our subject-matter jurisdiction. After clearing that hurdle, we address the defendant's other claims of error.

A. Standing.

The defendant argues for the first time in its reply brief that the plaintiff lacks Article III standing. In most cases, an argument advanced so late in the day and in so perfunctory a fashion would be forfeit. See, e.g., Merrimon v. Unum Life Ins. Co., 758 F.3d 46, 51-52, *10 (1st Cir. 2014); McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991). But there are exceptions to this general rule, and the defendant's lack of standing argument comes within such an exception. After all, whether a plaintiff has Article III standing implicates a federal court's subject-matter jurisdiction and, thus, must be resolved no matter how tardily the question is raised.

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See Merrimon, 755 F.3d at, *11; see also Vander Luitgaren v. Sun Life Assurance Co., 765 F.3d 59, 62-63, *9 (1st Cir. 2014) (comparing constitutional and statutory standing). We turn to that task.

Federal courts are constitutionally empowered to adjudicate only actual cases and controversies. See U.S. Const. art. III, § 2; Hollingsworth v. Perry, 133 S.Ct. 2652, 2661, 186 L.Ed.2d 768 (2013). " A case or controversy exists only when the party soliciting federal court jurisdiction (normally, the plaintiff) demonstrates 'such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends.'" Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). To demonstrate that she has standing, " a plaintiff must establish each part of a familiar triad: injury, causation, and redressability." Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

The defendant suggests that the plaintiff lacks a constitutionally cognizable injury because she was not flummoxed about her statutory rights after reading the collection letter, as evidenced by the fact that she exercised those rights. But this suggestion gives too short shrift to the well-settled proposition that " [t]he . . . injury required by Art. III may exist solely by virtue of 'statutes creating legal rights, the invasion of which creates standing.'" Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973)); see Lujan, 504 U.S. at 578; Havens Realty Corp. v. Coleman, 455 U.S. 363, 373, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982).

In cases in which a plaintiff's injury stems solely from the violation of a statute, the nature of the right that the statute confers is of paramount concern. See Warth, 422 U.S. at 500; Merrimon, 758 F.3d at 52-53, *7-8; Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d 1109, 1114-15, *9-10 (9th Cir. 2014)]. This principle is leavened by the corollary principle that Congress cannot confer standing beyond the boundaries of Article III, that is, upon individuals who have not suffered a concrete injury. See Summers v. Earth Island Inst., 555 U.S. 488, 497, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). As a result, a plaintiff always must be able to demonstrate that she suffered some " personal and tangible harm." Hollingsworth, 133 S.Ct. at 2661.

Section 1692g prohibits debt collectors from sending collection letters that overshadow or are otherwise inconsistent with the required validation notice. Debt collectors who transgress that prohibition are liable to consumers for actual and statutory damages. See 15 U.S.C. § 1692k. Refined to bare essence, the FDCPA bestows upon consumers a right not to receive communications that overshadow or are inconsistent with the validation notice. Cf. Tourgeman, 755 F.3d at 1113-14, *15 (characterizing analogous right conferred by section 1692e as the right not to be the target of misleading communications).

The invasion of a...

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