By using a mail house to print and mail a collection letter, thus “exposing … non-public information to an unauthorized third party,” the plaintiff-appellant in Hunstein v. Preferred Collection & Management Services suffered a concrete injury and thus has standing to sue, his attorney argued in a brief that was filed last week with the Court of Appeals for the Eleventh Circuit in preparation for an en banc hearing in the case.
A copy of the brief can be accessed by clicking here.
The defendant-appellee “effectively labeled” the plaintiff-appellant as a “deadbeat” to “an unknown group of persons who were not permitted recipients” of the information under the Fair Debt Collection Practices Act, the brief contends. Ultimately, the plaintiff-appellant suffered intangible injuries of humiliation, embarrassment, and anxiety “from the knowledge that his private information was in the hands of a third party.”
Preferred’s brief in support of its argument that the plaintiff-appellant does not have standing is due to be filed with the Eleventh Circuit by January 18. The en banc hearing has been scheduled for the week of February 21.
This case has upended the accounts receivable management industry since a three-judge panel from the Eleventh Circuit issued its initial ruling last April that the defendant’s use of a mail house to print and send a collection letter constituted a communication under the FDCPA. Thousands of lawsuits making similar allegations have been filed nationwide and the entire industry is waiting to see what happens when all of the judges on the Eleventh Circuit sit for the en banc hearing.
Judges across the country have used the Supreme Court ruling in TransUnion v. Ramirez as a litmus test to determine whether plaintiffs have standing to sue in federal court. “No concrete harm, no standing,” the Supreme Court ruled.
“Preferred sent highly personal, uniquely identifiable, and legally protected information to a third-party. It revealed Mr. Hunstein’s address, status as a debtor, amount of the debt, creditor, and that the debt arose medical treatment of Mr. Hunstein’s minor son,” according to the brief. “… Congress deemed information related to the existence of a debt being in collection privileged and legally protected. Their legislation did not invent a new harm from whole cloth, but rather offered recognition to the fact that even minimal disclosure of confidential financial information results in humiliation of the debtor. Hence, the disclosure of such information to an unauthorized third-party causes a concrete de facto injury.”
The brief also aims to take the legs out of a potential argument from the defendant — the telegram exception. The FDCPA specifically permits the use of telegrams to communicate with debtors, suggesting that the use of intermediaries is approved. But mail houses were around when the FDCPA was enacted in 1977 and Congress did not specifically mention them in the statute, the brief notes. “… it is a stretch to suggest that Congress failed to include third-party mail houses, or service providers of a similar nature, as an oversight on their part.”
