Judge Grants MSJ for Defendant in FDCPA Case Over Email Sent to Represented Plaintiff

A District Court judge in Illinois has granted a defendant’s motion for summary judgment in a Fair Debt Collection Practices Act case, ruling that emails sent to the plaintiff by the defendant did not violate the statute. The case presents an interesting twist on standing to sue under the FDCPA and communicating with consumers via email.

A copy of the ruling in the case of Gilbert v. TrueAccord can be accessed by clicking here.

The plaintiff received an email from the defendant, attempting to collect on an unpaid credit card debt. The email included the following disclosure:

The law limits how long you can be sued on a debt. Because of the age of your debt, Pinnacle Credit Services, LLC cannot sue you for it. Please note that making a payment on a time-barred debt has the potential to restart the statute of limitations for suit on the debt. However, it is the policy of Pinnacle Credit Services, LLC (a) never to file suit on a debt after the original statute of limitations has expired and (b) never to sell such a debt. The foregoing is a statement of our current practices. Should we ever change our practice not to sell time-barred debts we will require any purchaser to agree to follow our practice of not filing suit on such debts. Because of the age of your debt, Pinnacle Credit Services, LLC cannot report it to any credit reporting agency.

Nine days later, the defendant sent the plaintiff another email, attempting to collect on a separate unpaid credit card debt that was owed to a different creditor. Two days after the second email was sent, the plaintiff’s attorney responded back, informing the defendant that the plaintiff was represented by an attorney and to not contact the plaintiff directly again.

Three days after receiving the email from the attorney, the defendant sent another email to the plaintiff, attempting to collect on the initial debt again. The plaintiff’s attorney reached out to the defendant again, informing the defendant that the plaintiff was being represented and to not contact her directly.

The plaintiff filed suit, alleging the defendant failed to inform her that she could not be sued for the debt nor could it be reported to a credit reporting agency, and for attempting to communicate with her after it had been informed that she was being represented. In filing her suit, the plaintiff alleged she had standing to sue because she refrained from making purchases after receiving the emails and because she had wasted her time.

The standing argument is an interesting one, because usually, the plaintiff is required to demonstrate some form of financial harm in order to have standing to sue. Not making purchases is an argument that hasn’t been made many times, if ever, and Judge Jorge Alonso of the District Court for the Northern District of Illinois had little trouble dispensing with that claim.

“Here, plaintiff has put forth no evidence of such a monetary detriment,” he wrote. “Plaintiff has not, for example, put forth evidence that she refrained from paying a different debt, thereby incurring a financial harm in the form of interest on that other debt. Rather, plaintiff has put forth evidence that she refrained from purchasing food, toiletries and drinks. One does not suffer a monetary injury by refraining from making a purchase; one still has her money if she refrains from making a purchase. Paying too much for an item constitutes an economic injury, but refraining from paying for an item does not. At best, plaintiff’s action might have left her with a feeling of want or desire, but such feelings are not concrete injuries.”

Regarding the third email, which was sent to the plaintiff after being notified that she was represented by an attorney, the defendant argued, and Judge Alonso agreed, with precedent that said the defendant needed to be informed that the attorney was representing the plaintiff on both debts for the email to be a violation of the FDCPA.

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