Defendant Files Petition for En Banc Re-Hearing in Hunstein Case

The defendant in the Hunstein case yesterday filed its petition with the Eleventh Circuit Court of Appeals seeking to have the case re-heard before all of the court’s judges — known as an en banc hearing — arguing that the three-judge panel erred when it ruled last month that a statutory violation of Section 1692c(b) of the Fair Debt Collection Practices Act is sufficient to confer standing.

A copy of the petition, in the case of Hunstein v. Preferred Collection and Management Services can be accessed by clicking here.

Now that the petition has been filed, all 12 of the judges sitting on the Eleventh Circuit will be asked if they think the case should be re-heard en banc. If one of them says yes, then a vote is held to determine how many judges on the Eleventh Circuit agree that the case should be re-heard. If a majority of the judges agree, then the court will grant the en banc petition and re-hear the case, at which point it can agree with the original ruling or reach another conclusion.

EDITOR’S NOTE: Check out AccountsRecovery.net’s Hunstein resource guide, which includes webinar recordings, links to articles, and a list of lawsuits that have been filed.

Anyone interested in submitting an amicus brief to support the defendant’s position has until June 1 to do so.

The panel ruled last month that the defendant’s use of a vendor to print and mail collection letters was enough of a concrete injury for the plaintiff to claim standing. The ruling set off a tsunami of similar lawsuits across the country. At last count, more than 150 similar lawsuits have been filed in the four weeks following the Eleventh Circuit’s decision in Hunstein.

In seeking the re-hearing, the defendant argued that the ruling “contorted” existing precedent, that the conduct in question did not constitute a public disclosure of the plaintiff’s information to a third party, and that the type of harm in question was not what Congress had in mind when it enacted the FDCPA back in 1977.

“Plaintiff’s cause of action is premised entirely on Preferred’s ministerial, electronic transmission of information to its own agent for the singular purpose of facilitating the mailing of a letter from Preferred to Plaintiff,” wrote the defendant in its petition. “The electronic transmission of information to a machine is the antithesis of ‘public’ disclosure. The consumer has the only set of human eyes that sees the information actually contained in the letter.”

In making its argument, the defendant even referenced the FDCPA’s allowance of using telegrams to prove that Congress did not have a problem with using “third-party agents” to facilitate “non-abusive communications with a consumer.”

“The conduct complained of by Plaintiff is the transmission of data to computer servers maintained by an agent of the debt collector for the purpose of facilitating the mailing of a letter to the consumer,” the defendant wrote. “This is identical to a debt collector using Western Union in 1977 to send a telegram to a consumer – activity which is expressly sanctioned by Congress. Both the letter vendor and Western Union are performing the exact same lawful function for the debt collector.”

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