The U.S. Supreme Court’s recent TransUnion v. Ramirez decision on Article III standing was discussed at length and applied by the Tenth Circuit Court of Appeals in Lupia v. Medicredit, Inc., --- F. 4th ---, 2021 WL 3627103 (Aug. 17, 2021). Although Lupia involves the application of the Fair Debt Collection Practices Act’s (“FDCPA”) bona fide error defense, it is important, for this blog’s purposes, because of its application of TransUnion v. Ramirez in concluding Plaintiff had standing based on the receipt of a single phone call.
Medicredit, Inc. (“Defendant”) was retained to collect an unpaid debt allegedly owed by Plaintiff Elizabeth Lupia (“Plaintiff”) for medical services. After receiving correspondence from Defendant demanding payment, Plaintiff sent a letter disputing the debt and requested that Defendant cease communications. There was no dispute that Defendant received the letter on May 7, 2018, but did not process it until May 10, 2018. Unfortunately for Defendant, it placed a debt collection call on May 8, 2018, the day after it received the Plaintiff’s cease and desist letter. The Plaintiff asserted a claim under the FDCPA.
The Tenth Circuit first addressed Plaintiff’s standing. Defendant argued Plaintiff did not suffer any actual harm because Plaintiff’s complaint was based on the receipt of a single phone call. The Tenth Circuit began its analysis with the U.S. Supreme Court’s decision in Spokeo, Inc. v. Robins and immediately focused its attention on the “concrete” requirement. Citing extensively to TransUnion v. Ramirez, the Tenth Circuit concluded that Plaintiff’s injury was sufficiently concrete to confer standing.
In reaching this decision, the court noted both Spokeo and Ramirez required it to look to history and the judgment of Congress in making this determination. Beginning with a historical discussion and following the guidance provided by Ramirez, the Tenth Circuit concluded Plaintiff’s claims were similar to the tort of “intrusion upon seclusion.” The court swiftly rejected Defendant’s argument that a single phone call was not enough to rise to an actionable intrusion, remarking, “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.” Id. at *5.
As to the “judgment of Congress,” the Tenth Circuit recognized Ramirez’s instructions that Congress cannot “simply enact an injury into existence.” Id. In the court’s view, Plaintiff was not relying on a bare procedural violation. Rather, Plaintiff’s claims had “roots in long-standing common-law tradition.” Id. at *6.
The remainder of the opinion provides a thorough discussion of the bona fide error defense under the FDCPA. Ultimately, the Tenth Circuit rejected Defendant’s arguments and concluded Defendant “can’t find refuge under the bona fide error defense because we can find nothing in the record to show that its policies were designed to avoid making unauthorized phone calls to [Plaintiff], or others like her.” Id. at *11.
Practice Tip: Courts are beginning to apply the Article III standing ruling of TransUnion v. Ramirez to various consumer protection claims beyond the Fair Credit Reporting Act. The industry should to keep a close eye on each Circuit’s application.
See the discussion of TransUnion v. Ramirez here.