Judge Remands FDCPA Case Over Duplicate Notices, Hunstein Claims Back to State Court

A District Court judge has granted a plaintiff’s request to remand a Fair Debt Collection Practices Act case back to the state court in which it was originally filed, but declined to award attorneys’ fees, ruling that “jurisprudence in this District and the Second Circuit” on the topic of standing “is still evolving.”

A copy of the ruling in the case of Jaber v. Complete Payment Recovery Services can be accessed by clicking here.

The plaintiff claims to have received two letters from the defendant, 25 days apart. Each letter was described as being the “FIRST NOTICE” which the plaintiff alleges created confusion about his ability to dispute the debt during the 30-day validation period, and violated the FDCPA’s prohibition against false, deceptive, or misleading representations because it would confuse a least sophisticated consumer. The plaintiff also claimed that the defendant used a letter vendor to print and mail the letters in question, thereby sharing his information with an unauthorized third party, in violation of state law in New York and the FDCPA.

After filing the lawsuit in state court, the defendant removed the case to federal court, arguing that the third-party disclosure was “sufficiently similar” to the disclosure of private information in TransUnion v. Ramirez, and that the plaintiff’s allegations of “actual damages” and “compensable harm” were sufficient to confer standing.

Unfortunately, Judge Hector Gonzalez of the District Court for the Eastern District of New York did not agree.

First, the “mailing vendor theory” has already been rejected as insufficient to establish standing in the Eastern District, Judge Gonzalez noted. The defendant didn’t help its case by not citing “a single case decided after TransUnion and has therefore identified no case suggesting that standing exists under these circumstances.” Judge Gonzalez also noted that the Supreme Court ruled in TransUnion that sharing information with a mail vendor did not rise to the level of defamation and the fear of additional third parties seeing the information in question was speculative.

And because the plaintiff claimed that only a least sophisticated consumer would be confused by the duplicative “FIRST NOTICE” letters, standing was not established. And even if the plaintiff were to allege he was confused, that would not be enough either, Judge Gonzalez ruled.

But unlike other courts, which have awarded attorneys’ fees to plaintiffs in similar situations, Judge Gonzalez chose not to do so here. “The Supreme Court’s decision in TransUnion was less than a year old when Defendant removed this case, and the decision’s impact on the standing jurisprudence in this District and the Second Circuit is still evolving,” he wrote. “The Court will not penalize Defendant for not having been aware of ‘the complexity of the law’ in this area and its application to the mailing vendor theory that forms the basis for Plaintiff’s claims.”

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