Valerie Thomas v. LVNV Funding, LLC

                               In the
    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________

No. 24-1993
VALERIE THOMAS,
                                                   Plaintiff-Appellee,

                                 v.

LVNV FUNDING, LLC, and RESURGENT CAPITAL SERVICES, L.P.,
                                  Defendants-Appellants.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
           No. 21 CV 1948 — Jeffrey I. Cummings, Judge.
                     ____________________

   ARGUED FEBRUARY 4, 2025 — DECIDED MARCH 21, 2025
                ____________________

   Before SYKES, Chief Judge, and EASTERBROOK and PRYOR,
Circuit Judges.
    EASTERBROOK, Circuit Judge. After receiving a notice that
she owed $187, Valerie Thomas disputed the accuracy of the
claim. Resurgent (as we call the two defendants jointly) noti-
fied TransUnion, a credit-reporting agency, about the debt the
day before opening the leYer from Thomas. It did not report
the dispute until 29 days later, on its next regular reporting
date. Thomas contends in this suit under the Fair Debt
2                                                    No. 24-1993

Collection Practices Act, 

15 U.S.C. §§ 1692

 to 1692p, that the
delay entitles her to statutory damages under §1692k(a)(2)(A),
which authorizes “additional damages” up to $1,000 on top
of “actual damage” under §1692k(a)(1). A jury awarded her
$250.
    The jury returned its verdict on December 13, 2023, and
the clerk of court should have entered judgment “promptly”.
Fed. R. Civ. P. 58(b)(1)(A). Yet although the clerk made an en-
try on the docket, a judgment was not entered until June 11,
2024, a delay that the district judge has aYributed to inadvert-
ence. Resurgent had filed a notice of appeal four days earlier,
and it took effect, per Fed. R. App. P. 4(a)(2), on June 11.
    The district court’s delay put Resurgent in peril of not be-
ing able to appeal, for Fed. R. App. P. 4(a)(7)(A) provides that,
if a Rule 58 judgment is required but omiYed, then the judg-
ment is deemed to have been entered 150 days after the docket
entry. That clause deems this judgment to have been entered
on May 11, 2024, and the 30 days allowed for appeal under
Rule 4(a)(1)(A) then began to run. Resurgent seems to have
been unaware of Rule 4(a)(7)(A) and filed a timely appeal only
by good fortune; had it waited for the entry of the Rule 58
judgment on June 11, the time would have expired. (June 11
was Day 181 from the jury’s verdict.) District courts need to
comply punctually with Rule 58 to avoid jeopardizing liti-
gants’ appellate rights. This is more than a maYer of tidy
bookkeeping; it can be the difference between winning and
losing the case, as this appeal shows.
   Resurgent does not contest the district court’s conclusion,

642 F. Supp. 3d 728

 (N.D. Ill. 2022), that the statute required it
to notify TransUnion earlier. Its sole appellate argument is
No. 24-1993                                                      3

that the delay did not injure Thomas, who therefore lacks
standing to sue.
    Following the Supreme Court’s decisions in TransUnion
LLC v. Ramirez, 

594 U.S. 413

 (2021), and Spokeo, Inc. v. Rob-
ins, 

578 U.S. 330

 (2016), this court has held that the availability
of statutory damages does not suffice for standing. See, e.g.,
Brown v. CACH, LLC, 

94 F.4th 665

 (7th Cir. 2024); Baysal v.
Midvale Indemnity Co., 

78 F.4th 976

 (7th Cir. 2023); Pierre v.
Midland Credit Management, Inc., 

29 F.4th 934

 (7th Cir. 2022);
Casillas v. Madison Avenue Associates, Inc., 

926 F.3d 329

 (7th Cir.
2019) (BarreY, J.). Only a plaintiff who suffers injury may sue.
That injury need not be financial; it could be reputational, by
analogy to the common law of defamation. But there must be
some injury.
    District Judge Bucklo, who handled this case before it was
transferred to District Judge Cummings for trial, held that
Thomas was injured as a maYer of law. She based this ruling
on Ewing v. Med-1 Solutions, LLC, 

24 F.4th 1146

 (7th Cir. 2022),
which treated the absence of a dispute notice as a form of def-
amation. After all, someone who does not pay a disputed
claim looks less like a deadbeat than someone who fails to pay
a debt that is conceded to be due. Persons who looked up
Ewing’s credit history during the two years before the dispute
was reported would have understood the defamatory impli-
cation. Ewing added that the plaintiff’s credit score rose when
the dispute was at last reported, so there may have been a fi-
nancial injury too.
    Ewing does not stand, however, for the proposition that
every delay in reporting a dispute, however short, causes ac-
tual injury. What if no one checks the credit record during the
delay? Then there is no defamation, for defamation requires
4                                                    No. 24-1993

publication. What if the record shows that the plaintiff was
not in the market for credit during the period of delay? What
if it shows that the eventual notice of the dispute did not affect
the person’s credit score? We held in Freeman v. Ocwen Loan
Servicing, LLC, 

113 F.4th 701

, 709 (7th Cir. 2024), that questions
such as these need answers, and that Ewing must not be taken
as a holding that injury is conclusively established. Freeman
added that robotic access to information does not show defa-
mation; data in a computer’s memory do not harm anyone’s
reputation unless a person understands the significance of the
information or omission. 113 F.4th at 709–10. See also
TransUnion, 594 U.S. at 434 n.6. In Wood v. Security Credit Ser-
vices, LLC, 

126 F.4th 1303

, 1309–10 (7th Cir. 2025), the court
reviewed the record to see on which side of the line between
Ewing and Freeman one particular claim fell; this reinforces the
point that Ewing does not create a categorical rule.
    Thomas asserted early in her suit that she suffered multi-
ple injuries, including higher costs for insurance. But allega-
tions must be backed up by proof once a case gets past the
pleading stage. Lujan v. Defenders of Wildlife, 

504 U.S. 555, 561

(1992). So what does the record show about Thomas’s injury,
if any? The answer: nothing. Thomas did not support her al-
legations with evidence before trial. At trial, she did not even
aPempt to show injury. Had she aYempted, but been disbe-
lieved by the jury, that might have sufficed. See Bell v. Hood,

327 U.S. 678

 (1946). But she did not try to prove any of her
allegations related to injury.
    Because the statute allows for an award of all actual dam-
ages, plus statutory damages up to $1,000, the lack of effort at
trial may seem odd. One reason is that Judge Bucklo granted
Resurgent’s motion in limine for an order precluding Thomas
No. 24-1993                                                    5

from introducing any evidence of actual injury. If that order
had been based on a judicial view that a request for statutory
damages forecloses a request for actual damages, we would
be obliged to send this case back for another trial. Similarly if
Thomas had asked Judge Cummings to reconsider Judge
Bucklo’s order and made an offer of proof showing injury. See
Fed. R. Evid. 103(a)(2). But Thomas did not make a proffer or
otherwise ask Judge Cummings for relief and has not filed a
cross-appeal seeking a new trial.
    Judge Bucklo granted Resurgent’s motion for the same
reason that Thomas did not make an offer of proof at trial: she
lacks admissible evidence. She did not have evidence show-
ing that a single natural person saw her credit file during the
critical 29-day window. No publication means no defamation.
Thomas did not try to show that the contents of the file caused
a jump in the quoted premium for insurance. She lacked evi-
dence that her credit score rose by so much as a single digit
when Resurgent reported the dispute. She did not try to show
that any issues she may have encountered in obtaining credit
were caused by the lack of a dispute notice, as opposed to un-
disputed aspects of her credit history. When granting Resur-
gent’s motion, Judge Bucklo observed that Thomas could
have conducted a deposition or sent an interrogatory to the
insurer asking when (if at all) it checked the credit file and
whether the quote for the policy was affected by what it
found. But that was not done. Thomas’s lawyer told the court
that five entities made “soft inquiries” during the 29 days but
has not explained how TransUnion responded to the requests
or how its responses harmed her.
   Thomas had ample time for discovery but did not put that
time to use. Perhaps counsel misread Ewing and believed that
6                                                  No. 24-1993

proof was unnecessary (or that the recovery at trial, even sup-
plemented by an award of aYorneys’ fees, would be less than
the cost of conducting discovery). We need not pin down the
reason. Thomas ended up with zero evidence of injury—none
actually introduced into the record, none described by an of-
fer of proof. And a litigant who never supplies evidence of
injury lacks standing to sue.
    The judgment of the district court is reversed, and the case
is remanded with instructions to dismiss for lack of a justicia-
ble controversy.