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Fair Debt Collection: 11.15.3.3 Distinguishing Between Procedural and Substantive Violations

In framing an FDCPA claim, it may be helpful to present it as a violation of a substantive rather than a procedural right to the extent possible. In Spokeo, the Supreme Court drew a distinction between “procedural” rights and “substantive” rights. It characterized the rights involved in the case as procedural, and held that, at least in some circumstances, a “bare procedural violation” without some other concrete harm would not establish standing.1636

Fair Debt Collection: 11.15.3.4.1 Examples

Spokeo and Ramirez make clear that both tangible and intangible injuries can meet the concreteness requirement.1648 Concrete harms that would satisfy the injury-in-fact requirement and that an individual consumer might suffer as a result of nondisclosure, false, deceptive, or misleading statements, telephone harassment, or other FDCPA violations might include:

Fair Debt Collection: 11.15.4.1 Generally

Congress identified deceptive debt collection practices as one of its primary concerns when it enacted the FDCPA.1764 Many provisions of the FDCPA protect debtors from false, deceptive, or misleading practices.

Fair Debt Collection: 11.15.3.4.2a Confusion

Some courts have held that confusion due to a misleading or unclear collection communication is a concrete injury1706 Ramirez adds some weight to this view, in that it cites the fact that the plaintiffs, other than Ramirez himself, did not present any evidence “that they were confused, distressed, or relied on the information in any way” as support for its conclusion that the plaintiffs had not alleged a concret

Fair Debt Collection: 11.15.5.2.1 The purposes behind FDCPA § 1692g’s disclosure requirements

The rights and obligations established by FDCPA § 1692g were considered by the Senate at the time of passage to be a “significant feature” of the Act.1920 “This provision [FDCPA § 1692g] will eliminate the recurring problem of collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.”1921 Congress enacted section 1692g to protect debtors’ concrete interest in avoiding abusive debt collection practices.1922

Fair Debt Collection: 11.15.7 Article III Standing for Claims Involving Third-Party Contacts or Public Disclosure of Information About a Debt

Many provisions of the FDCPA protect the consumer’s privacy and relationships from harm by prohibiting third-party contacts or disclosure of information about the debt in a public way. FDCPA § 1692c(b) generally prohibits debt collector calls to friends, parents, children, other relatives, neighbors, and employers. FDCPA § 1692d(3) prohibits the publication of shame lists of consumers alleged to be refusing to pay their debts, and section 1692d(4) prohibits advertising debts for sale in order to coerce their payment.

Fair Debt Collection: 11.15.10 Article III Standing for Claims Involving Unfair or Unconscionable Collection Methods

FDCPA § 1692f prohibits unfair or unconscionable collection methods, including several specifically enumerated acts, such as misuse of postdated checks (section 1692f(2), (3), (4)), causing charges for communications to be made to a person while concealing their true purpose (section 1692f(5)), and wrongful repossession or threats of repossession (section 1692f(6)). This section discusses Article III standing to assert claims regarding violation of these provisions.

Fair Debt Collection: 11.15.12 Burden of Proof

The party invoking federal jurisdiction bears the burden of establishing standing.2131 For a case filed in federal court, the burden of establishing standing thus falls on the plaintiff.2132 However, when a defendant removes a case from state court to federal court, it is the defendant who is invoking federal jurisdiction, so the defendant bears the burden of showing the plaintiff’s standing.2133