Lead Opinion
Opinion by Judge FRIEDMAN; Dissent by Judge FARRIS.
OPINION
This is a class action brought under the Fair Debt Collection Practices Act (“FDCPA” or “the Act”), 15 U.S.C. § 1692 et seq. Plaintiff David Tourgeman contends that the defendants — Collins Financial Services, Inc.; Paragon Way, Inc.; Nelson & Kennard; and Collins Financial Services USA, Inc. — made false representations to him in connection with their efforts to collect a purported debt.
I. BACKGROUND
David Tourgeman bought a Dell computer. At the time of the purchase, Tourge-
Collins transferred Tourgeman’s file along with the other Dell Financial accounts to Collins’s affiliated collection agency, Paragon Way, Inc., which mailed three letters to Tourgeman encouraging him to pay off the purported debt. Collins then referred the file to the law firm of Nelson & Kennard, which sent its own dunning letter to Tourgeman. All of these letters were mailed to addresses in California at which Paragon and Nelson & Kennard believed Tourgeman might reside. In fact, the addresses belonged to Tourgeman’s parents, and Tourgeman himself remained resident in Mexico. After receiving no response to the letters, Nelson & Kennard filed a complaint on behalf of Collins in San Diego County Superior Court. Tourgeman retained counsel, and Nelson & Kennard eventually elected to dismiss the action. It was during this state court litigation that Tourge-man learned of the several letters that had been mailed to him at his parents’ addresses. See Tourgeman v. Collins Fin. Servs., Inc., No. 08-cv-1392,
Tourgeman then went on the offensive. He filed this lawsuit in federal district court, alleging that Collins, Paragon Way, and Nelson & Kennard had violated the FDCPA, as well as California law, in their efforts to collect the purported debt from him.
On appeal, Tourgeman makes two claims under the FDCPA. His main claim arises from the fact that the defendants — both in their letters and in the state court complaint — falsely identified his original creditor as “American Investment Bank, N.A.,” when, in actuality, CIT Online Bank originated the loan. Tourgeman contends that this misidentification violated the Act’s prohibition on the “use [of] any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. Tourge-man’s second claim relates to the letter sent to him by the law firm of Nelson & Kennard. He argues that the attorney who signed the letter had not been “meaningfully involved” in evaluating his case,
II. STANDING
Nelson & Kennard first argues that Tourgeman lacks both statutory and Article III standing to assert any claims based on the collection letters, which Tourgeman admittedly never received when they were sent. The law firm contends that the FDCPA does not provide a cause of action to a consumer in Tourgeman’s position, notwithstanding the statute’s broad language providing that “any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person.” 15 U.S.C. § 1692k(a). Nelson & Kennard further maintains that even if the FDCPA does purport to endow such consumers with a cause of action, Article III would forbid it, because consumers who never receive the offending communication have suffered no injury in fact. Tourgeman’s position is that a violation of the FDCPA “in and of itself [ ] confers Article III standing.”
A. Article III Standing
“Article III of the Constitution limits federal-court jurisdiction to ‘Cases’ and ‘Controversies.’ ” Massachusetts v. E.P.A.,
To possess standing, a plaintiff must have suffered an “injury in fact,” meaning “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan,
“The ... injury required by Art. 111 may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’ ” Id. at 578,
At the same time, “the requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute.” Summers v. Earth Island Inst.,
The second limitation poses no problem in this case. The personal interest in not being “the object of a misrepresentation made unlawful [by statute],” Havens Realty Corp. v. Coleman,
The Supreme Court’s decision in Havens Realty Corp. v. Coleman, however, makes clear that such pecuniary or emotional harms are not necessary to a finding of injury in fact. In Havens, the Court held that an African-American “tester” — who, by posing as an apartment hunter, aimed to ferret out violations of the Fair Housing Act (“FHA”) — possessed standing to bring suit based on the defendants’ falsely telling her that no apartments in a particular housing complex were available, even though the tester had no intention of actually renting an apartment from the defendant and, indeed, may well have “fully expect[ed] that he would receive false information.”
Similarly, we have held that where a home buyer is referred by her settlement agent to a particular title insurer as a result of a kickback deal between the agent and the insurer, the consumer suffers Article III injury even though she paid no more for the insurance than she otherwise would have. Edwards v. First Am. Corp.,
Although Tourgeman could not have suffered any pecuniary loss or mental distress as the result of a letter that he did not encounter until months after it was sent — when related litigation was already underway — the injury he claims to have suffered was the violation of his right not to be the target of misleading debt collection communications. The alleged violation of this statutory right — like those rights at issue in Havens, Robins, and the other cases that we have noted — constitutes a cognizable injury under Article III. And “[wjhen the injury in fact is the violation of a statutory right that we inferred from the existence of a private cause of action, causation and redressability” — the two other elements of standing — “will usually be satisfied.” Robins,
Satisfied that Article III of the Constitution would not bar Congress from creating a private cause of action for a consumer in Tourgeman’s position, we now turn to ask whether Congress actually has done so in the FDCPA. We start with the text of the statute.
The statute’s text imposes no such requirement. Still, it is not unreasonable for Nelson & Kennard to contend that the very concept of a “representation” contemplates the presence of two parties: the party making the representation and the party to whom it is made. See, e.g., WEBSTER’S THIRD NEW INT’L DICTIONARY 1926 (1993) (defining “represent” as meaning, inter alia, “to set forth or place before someone (as by statement, account, or discourse),” and “[to] exhibit (a fact) to another mind in language” (emphases added)); BLACK’S LAW DICTIONARY 1415 (9th ed.2009) (defining “representation” as meaning, inter alia, “[a] presentation of fact — either by words or by conduct — made to induce someone to act ... [especially] the manifestation to another that a fact, including a state of mind, exists” (emphases added)). But these definitions do not speak to the nature of the intended recipient’s role in the transaction, and the statutory text itself is aimed squarely at the debt collector’s conduct, rather than at its effect on the consumer. See 15 U.S.C. §§ 1692e & k(a) (proscribing the “use [of] any false, deceptive, or misleading representation ... with respect to any person” (emphasis added)). A debt collector who addresses a misleading dunning letter to a consumer as a means of collecting that consumer’s debt “use[s]” an unlawful practice “with respect to” the consumer, regardless of whether some interceding condition — such as non-receipt of the letter, or the consumer’s failure to read it, or the fact that the consumer is savvy enough not to be misled by it — renders the practice ineffective.
The manner in which the majority of courts have applied the FDCPA aligns with this construction of the statute. To begin with, a consumer possesses a right of action even where the defendant’s conduct has not caused him or her to suffer any pecuniary or emotional harm. E.g., Phillips v. Asset Acceptance, LLC,
These interlocking statutory features demonstrate that Congress intended to achieve its goal of regulating debt collectors’ conduct by motivating consumers to bring enforcement actions if they are the targets of unlawful collection efforts. And the Act’s broad regulatory purpose is effectuated by measuring the lawfulness of a debt collector’s conduct not by its impact on the particular consumer who happens to bring a lawsuit, but rather on its likely effect on the most vulnerable consumers— the hypothetical “least sophisticated debt- or” — in the marketplace. See, e.g., Gonzales,
For these reasons, Tourgeman has both Article III standing and a statutory cause of action under the FDCPA.
III. CLAIMS UNDER THE FDCPA
We turn now to the merits of Tourge-man’s claims, which require that we determine whether the defendants’ communications were “misleading” under section 1692e of the FDCPA. Although Tourge-man levels the same basic charge against all defendants — that his original creditor, CIT Online Bank, was falsely identified to be American Investment Bank — there are a few distinctions between the various challenged documents and these differences warrant dividing our separate discussion of them. We first address the Paragon Way letters, then the complaint drafted by Nelson & Kennard and filed against Tourgeman in California state court, and conclude with the letter sent by Nelson & Kennard. We exercise de novo review over a grant or denial of summary judgment. Evon,
The FDCPA “comprehensively regulates the conduct of debt collectors,” and “is a strict liability statute.” Gonzales,
“In this circuit, a debt collector’s liability under § 1692e of the FDCPA is an issue of law.” Gonzales,
In addition, “[i]n assessing FDCPA liability, we are not concerned with mere technical falsehoods that mislead no one, but instead with genuinely misleading statements that may frustrate a consumer’s ability to intelligently choose his or her response.” Donohue,
A. Paragon Way Letters
Paragon Way mailed three letters to Tourgeman that falsely identified his original creditor as “American Investment Bank, N.A.,” when in fact CIT Online Bank originated his loan. The letters also displayed an “Original Account # ” that did not match Tourgeman’s original CIT loan number. The first two of these letters, however, did include a “Description” line item that stated, “Dell Computer Corporation.” The question presented is whether this combination of features — in particular, the letters’ misidentification of Tourgeman’s original creditor — rendered these letters materially misleading under section 1692e.
Nelson & Kennard maintains that despite the erroneous identification of Tourgeman’s original creditor, the references to Dell in the first two Paragon Way letters were sufficient to tip off even the least sophisticated debtor about the subject matter of the collection effort. And a consumer genuinely puzzled by the mention of American Investment Bank, need only have picked up the phone to call for more information or to dispute the debt. Thus, says Nelson & Kennard, because the consumer’s ability to intelligently respond to the letters would not have been adversely affected by the incorrect information, the false statements were not “material,” and consequently Paragon Way did not violate the Act.
In Donohue, we held that a defendant’s mislabeling of a portion of a debt as “interest ... of 12%” — when in fact the sum “included pre-finance charges and interest” — did not violate section 1692e because the statement’s falsity “did not undermine Donohue’s ability to intelligently choose her action concerning her debt.” Id. at 1034. We relied on the Seventh Circuit’s decision in Hahn, which involved comparable facts. See
By contrast, in Lox v. CDA, Ltd.,
We are persuaded that, in the context of debt collection, the identity of a consumer’s original creditor is a critical piece of information, and therefore its false identification in a dunning letter would be likely to mislead some consumers in a material way. Unlike mislabeling portions of a total debt as principal rather than interest — literally false, but meaningful only to the “hypertechnieal” reader, see Wahl,
The debtor who takes Paragon Way’s letters at face value — either because he does not remember the details concerning his financing of a computer bought several years beforehand, or perhaps because he never knew the identity of his original creditor to begin with — might engage in a fruitless attempt to investigate the facts of this non-existent debt, in a responsible effort to determine how to most effectively respond to the collection notice. This debtor might, quite reasonably, contact American Investment Bank to obtain background information so that he can remember what had earlier transpired, or to obtain any records that the bank holds pertaining to his debt so that he can prove he already had paid it off, if he believes such is the case. But, of course, American Investment Bank would have no record of a loan agreement; and the unknown account number certainly is of no help in getting to the bottom of things. Even if the consumer eventually finds his way to learning that the letter referred to the Dell debt he had incurred with CIT Online Bank, the delay already would have cost him some portion of the thirty days that the FDCPA grants to consumers before having to respond to a collection notice, lest the debt collector be entitled to assume the validity of the debt. See 15 U.S.C. § 1692g. And such “confusion and delay in trying to contact the proper party concerning payment on [the] loan” is precisely the kind of infringement of the con
By ensuring that consumers are fully and truthfully apprised of the facts and of their rights, the FDCPA enables them “to understand, make informed decisions about, and participate fully and meaningfully in the debt collection process.” Clark,
Nelson & Kennard repeatedly suggests that a perplexed consumer could simply place a phone call to the debt collector to clear up any confusion. But for many consumers — particularly those who do not even recognize that they have encountered false information — making such a call likely would not be their first reaction to the letter, nor does the FDCPA require that it be so. As we have previously explained, “consumers are under no obligation to seek explanation of confusing or misleading language in debt collection letters.” Gonzales,
We next address the complaint prepared by Nelson & Kennard and filed against Tourgeman in California state court, which Nelson & Kennard delivered directly to Tourgeman’s father, who then transmitted it to his son in Mexico. Tourgeman,
Furthermore, a consumer could be harmed by a complaint — as opposed to a dunning letter — in ways distinct yet equally problematic as those we have already discussed. For example, the consumer who engages legal counsel might be unable to accurately apprise the lawyer of the relevant circumstances, potentially leading to lost opportunities to settle the debt. And the stakes are undoubtedly higher when the consumer faces the possibility of a default judgment rather than the mere continuation of collection attempts.
C. Nelson & Kennard Letter
Finally, we come to the letter mailed to Tourgeman by Nelson & Kennard. That letter informed him that the firm’s client, Collins Financial Services, “ha[d] forwarded [his] account to this office with instructions that we take appropriate action to effect collection of the above-referenced balances due.” The Nelson & Kennard letter did not mention Dell. It did reference “American Investment Bank, N.A.,” but, unlike the Paragon Way letters, it did not label the bank as Tourgeman’s “original creditor.” Rather, both the bank’s name and the same incorrect account number that appeared in Paragon’s letters were placed in a “Re:” line item atop the body of the letter. There was no explanation as to the meaning or significance of these pieces of information.
Nelson & Kennard argues that the absence of a label informing Tourgeman that American Investment Bank was the original creditor somehow makes the letter less misleading than those sent by Paragon Way, because the original creditor was not “misidentified.” On the contrary, Nelson & Kennard’s letter gives the least sophisticated debtor even less of a clue as to how to investigate the claim being made against him, making it more likely that the consumer will waste valuable time and suffer confusion in his efforts to formulate a response. Nelson & Kennard also emphasizes that its letter does correctly identify Tourgeman’s current creditor — Collins Financial Services— but, in fact, the letter simply states that
Nelson & Kennard also argues that because its letter came on the heels of the letters sent by Paragon Way — two of which mentioned Dell Computer Corporation — a consumer in Tourgeman’s position would know what the letter concerned and therefore would not be misled by the absence of any reference to Dell. We need not decide whether there may be some circumstances in which it would be appropriate, in determining a dunning letter’s tendency to mislead, to consider the consumer’s receipt -of earlier letters sent by a different debt collector. As we already have explained, Paragon Way’s letters were materially misleading notwithstanding having included references to Dell. The fact that Tourgeman had been sent the misleading Paragon Way letters therefore does not help Nelson & Kennard.
Tourgeman also advances an independent ground for finding that Nelson & Kennard’s dunning letter violated the FDCPA. He alleges that the lawyer who signed the Nelson & Kennard letter was not “meaningfully involved” in the evaluation of Tourgeman’s case before sending a letter on law firm letterhead. The “meaningful involvement doctrine” — to which this court has once referred in passing, see Gonzales,
The foundational case is Clomon v. Jackson,
The district court granted summary judgment to Nelson & Kennard on Tourgeman’s claim under subsection 1692e(3). It assumed that the meaningful involvement doctrine was applicable, see Tourgeman,
We need not determine whether to adopt a construction of section 1692e(3) that incorporates a requirement of meaningful involvement by an attorney who sends a dunning letter.
IV. CONCLUSION
For the foregoing reasons, we conclude that the judgment of the district court granting judgment to Collins, Paragon Way, and Nelson & Kennard must be reversed, and that judgment should instead be entered for Tourgeman against Paragon Way and Nelson & Kennard. We express no view regarding whether Tourgeman is entitled to judgment against Collins itself, as Tourgeman’s claims against that entity were based on a theory of vicarious liability that was neither decided by the district court nor briefed on this appeal. We remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Notes
. Tourgeman serves here as the named plaintiff on behalf of a class of consumers similarly situated. This appeal resolves the essential legal question that underlies Tourgeman's and the class’s claims under one section of the FDCPA, 15 U.S.C. § 1692e. For ease of reference, we refer only to plaintiff Tourgeman rather than to the class.
. It is immaterial to this appeal whether Tourgeman actually had paid his loan in full; none of his FDCPA claims depends on the validity of the debt.
. Tourgeman also sued Dell Financial, with which he later settled; that entity is not therefore involved in this appeal. Collins and Paragon Way have elected neither to file briefs nor to offer argument on this appeal, but we nonetheless are obligated to review the record in full. See Brown Bag Software v. Symantec, Corp.,
. As the Supreme Court recently noted, what the courts have sometimes called "statutory standing” is perhaps better addressed by asking whether Congress has created by a particular statute a cause of action in which a class of plaintiffs is authorized to sue. Lexmark,
. We also reject Nelson & Kennard’s contention that Tourgeman's claims based on the letters are time-barred. The district court appropriately concluded that "the first time that [Tourgeman] reasonably could have become aware of the allegedly false and misleading representations in Defendants’ letters was when his father was served with summons and complaint in the state court lawsuit in October 2007,” after which litigation discovery revealed the existence of the collection letters. Tourgeman,
. Tourgeman places little emphasis on the presence in the letters of an incorrect account number. At oral argument, his counsel sim
In any event, we conclude that the misiden-tification of the original creditor is independently sufficient to constitute a violation of the Act. Although the incorrect account number certainly compounds the violation, we do not determine whether that particular false statement, standing alone, would be sufficient to violate the FDCPA.
. Tourgeman also argues that summary judgment should not have been granted to Collins and Paragon Way in light of deposition testimony given by Walt Collins, the founder and former CEO of Collins Financial Services, in which Mr. Collins opined that the misidentifi-cation of Tourgeman's original creditor violated the FDCPA. This line of argument is foreclosed by our precedents, in which we have recognized that "we are not bound by a witness’s opinions about the law.” Miller v. Clark Cnty.,
. The district court was "not persuaded that the misidentification of the original creditor, or the account number, in this case would 'frustrate a consumer’s ability to intelligently choose his or her response,” ’ because "the least sophisticated debtor would not have recognized the original creditor, or account number, even if they had been correctly identified in the first instance.” Tourgeman,
. Debt collectors must not make representations that tend to lead consumers to forego the valuable rights granted to them by the Act. See, e.g., Easterling v. Collecto, Inc.,
. Nelson & Kennard may be correct that the FDCPA does not require that the original creditor be identified in collection letters sent to consumers — but where a debt collector has chosen to identify the original creditor, and has done so inaccurately, the false representation would likely thwart a consumer’s ability to freely navigate a course of action in response to the collection notice. Congress's recognition in the FDCPA that this information is important — even if not so essential that debt collectors must disclose it without first being asked, see 15 U.S.C. § 1692g(a)(5)— supports the conclusion that its false provision could have this type of detrimental impact on the consumer.
. In Donohue, this court held that a complaint that is served directly on a consumer qualifies as a "communication” that is subject to the strictures of section 1692e.
. The concept of "meaningful involvement” is only pertinent to claims brought under subsection 1692e(3), not to subsection e(2) and e(10) claims, because the phrase has developed. through courts’ construction of the unique language of e(3).
. For this reason, we deny the motion of the National Association of Retail Collection Attorneys for leave to file an amicus curiae brief in support of the appellees.
. The only potential relevance of finding an additional violation could be with respect to calculating the amount of statutory damages to be awarded to Tourgeman. See Clark,
Dissenting Opinion
dissenting.
I respectfully dissent. As I view the record, the trial court got it right. I would affirm.