United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 7, 2020 Decided June 9, 2020
No. 19-7119
PHYLLIS FRANK, INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED,
APPELLANT
v.
AUTOVEST, LLC, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-02773)
Dean Gregory argued the cause and filed the briefs for
appellant.
Scott A. King argued the cause for appellees. With him on
the brief were Jessica E. Salisbury-Copper and Eric N. Heyer.
Before: SRINIVASAN, Chief Judge, and GRIFFITH and
MILLETT, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: When Phyllis Frank failed to
make her monthly car payments, Autovest, LLC acquired
2
Frank’s debt and sued to collect. In the wake of that aborted
collection action, Frank sued Autovest and its debt-collection
agency under the Fair Debt Collection Practices Act (FDCPA
or the “Act”), 15 U.S.C. § 1692 et seq. Because Frank did not
suffer a concrete injury-in-fact traceable to the alleged statutory
violations, she lacks Article III standing. Accordingly, we
vacate the district court’s order and remand with instructions to
dismiss the complaint.
I
Frank purchased a used Chevrolet Impala in May 2011.
The dealership immediately assigned its interest in the
financing agreement to First Investors Financial Services
(FIFS), and Frank understood that she was financing the
vehicle with money borrowed from FIFS. See Frank Dep.
22:1-7, J.A. 11. Frank fell behind on payments after losing her
job and becoming homeless. She defaulted on the loan in 2014
and voluntarily surrendered the vehicle to FIFS in August
2015. Frank’s debt changed hands several times, but was
ultimately acquired by Autovest. Michael Andrews &
Associates (“Andrews”), Autovest’s agent for debt collection,
mailed Frank a pair of letters explaining that Autovest had
purchased her debt and instructing her to submit all future
payments to Andrews’s office.
In October 2016, Autovest sued Frank in the Superior
Court for the District of Columbia to collect the outstanding
principal of $8,557.53 plus interest, attorney’s fees, and costs.
See Complaint for Deficiency Balance, Autovest, LLC v.
Phyllis Frank, No. 2016-CA-007373 (D.C. Super. Oct. 5,
2016), J.A. 59-60. Autovest attached a sworn “Verification of
Complaint” signed by Christina Dunn, who identified herself
as an “agent/officer/employee of the Plaintiff” with the
3
“authority to verify the attached complaint.” J.A. 75. But Dunn
was employed by Andrews, not Autovest.
Four months later, the Superior Court issued an order of
default. Frank moved to vacate the default and filed a pro se
answer. Autovest moved for default judgment in April 2017,
relying on an affidavit signed by Glenn E. Deuman. Deuman
averred that he was “employed by Autovest, LLC . . . as [a] Sr.
Technical Product Manager.” Deuman Aff. ¶ 1, J.A. 84. Like
Dunn, however, Deuman actually worked for Andrews.
Autovest also filed a fee affidavit in which its attorney, Robert
D. Wagman, explained that his representation of Autovest was
“handled on a contingency fee basis.” Wagman Aff. ¶ 3, J.A.
98. But Wagman then calculated his fees using the lodestar
method, and the motion for default judgment sought only that
lodestar amount of $895. Id. at ¶¶ 6-7, J.A. 98-99; Defs. Motion
for Summary Judgment Ex. 7 at 4, No. 17-cv-2773 (D.D.C.
Feb. 12, 2019), Dkt. No. 34-7.
Frank paid $20 to vacate the default, declined Autovest’s
offer to enter judgment by consent, and retained counsel. On
January 25, 2018, the Superior Court granted Autovest’s
request to dismiss its collection suit with prejudice.
Frank filed this putative class action against Autovest and
Andrews in federal district court in December 2017. Her First
Amended Complaint alleges that the Dunn and Deuman
affidavits contain “false, deceptive, or misleading
representation[s]” under 15 U.S.C. § 1692e. Am. Compl.
¶¶ 56-57, 61-62, 64-65, S.A. 19-21. Frank also characterizes
the affidavits as conduct designed to “harass, oppress, or
abuse” in violation of section 1692d, id. ¶¶ 48-49, 52-53, S.A.
18-19, and as “unfair or unconscionable” debt-collection
practices under section 1692f, id. at ¶¶ 67-68, S.A. 21. Finally,
Frank alleges that Autovest violated the same provisions of the
4
Act by attempting to collect contractually unauthorized
contingency fees. Id. at ¶¶ 54, 58, 59, 63, 69, S.A. 20-21.
The district court denied Autovest and Andrews’s motion
to dismiss for failure to state a claim, and the case proceeded to
discovery. At her deposition, Frank testified that she “felt [she]
was being scammed” when she learned about the collection suit
because she had “never heard of Autovest.” Frank Dep. 37:3-
13, J.A. 17. However, Frank denied “tak[ing] action” or
“refrain[ing] from doing anything” because of the
representations of employment in the Dunn and Deuman
affidavits. Id. at 55:17-56:5, 59:17-60:4, J.A. 28-29, 32-33.
Likewise, Frank answered “No” when asked whether she
undertook or avoided any action or made any payments “as a
result of” the Wagman affidavit. Id. at 62:13-63:2, J.A. 35-36.
Autovest and Andrews moved for summary judgment, and
the district court granted their motion on September 29, 2019.
On the section 1692e false-statement claims, the court reasoned
that any falsehoods in the Dunn and Deuman affidavits were
immaterial—and thus not actionable—because they “had no
effect on Frank’s ability to respond or to dispute the debt.”
Mem. Op. at 11, J.A. 192. On the contingency-fee claims, the
court concluded that Autovest did not attempt to collect such
fees; Wagman merely “referred to his contingency-fee
relationship with Autovest.” Id. at 12, J.A. 193. Frank
appealed.
II
Article III requires a concrete and particularized injury-in-
fact traceable to the defendant’s conduct and redressable by a
favorable judicial order. See Lujan v. Defs. of Wildlife, 504 U.S.
555, 560-61 (1992). Although the district court did not evaluate
Frank’s standing, we have “an independent obligation to assure
5
that standing exists.” Summers v. Earth Island Inst., 555 U.S.
488, 499 (2009).
Frank satisfied her burden at the pleading stage by
including “general factual allegations of injury resulting from
the defendant’s conduct.” Lujan, 504 U.S. at 561. Her
complaint says that she “was deceived by the Defendants’
false, deceptive and misleading representations”; that she
suffered “agitation, annoyance, emotional distress, and undue
inconvenience”; and that she “incurred actual damages
including . . . attorney’s fees and costs.” Am. Compl. ¶¶ 32-34,
S.A. 16. But at the summary-judgment stage, the plaintiff must
demonstrate standing by “affidavit or other evidence.” Lujan,
504 U.S. at 561.
Frank hasn’t carried that burden. She fails to identify a
concrete personal injury traceable to the false representations
in the Dunn and Deuman affidavits or the alleged request for
contingency fees in the Wagman affidavit. In fact, Frank
testified unequivocally that she neither took nor failed to take
any action because of these statements. See Frank Dep. 55:17-
56:2, 59:17-60:10, 62:13-63:2, J.A. 28-29, 32-33, 35-36. Nor
did Frank testify that she was otherwise confused, misled, or
harmed in any relevant way during the collection action by the
contested affidavits. And although Frank stated that Autovest’s
suit caused her stress and inconvenience, see id. at 40:13-22,
J.A. 19, she never connected those general harms to the
affidavits, see id. at 64:8-65:22, 67:15-68:11, J.A. 37-40.
Because Frank was unaffected by the conduct that underlies her
FDCPA claims, she lacks Article III standing.
Frank’s counterarguments are unconvincing. First, she
points to pocketbook injuries in the form of “court costs and
attorney’s fees” she incurred “defending Autovest’s lawsuit.”
Frank Reply 9. But the record contains no evidence linking
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these expenses to the alleged statutory violations. Frank
testified that her litigation decisions were driven by
unfamiliarity with Autovest, not the contents of the Dunn,
Deuman, or Wagman affidavits. See Frank Dep. 37:3-13, J.A.
17 (Q: “What made you decide to seek counsel in connection
with the collection action?” A: “Because I felt I was being
scammed. . . . I never heard of Autovest.”); see also id. at
57:2-8, 68:4-11, 70:13-71:13, J.A. 30, 40, 42-43. In short,
there’s no evidence that the contested statements rendered
litigation more expensive or onerous.
Second, Frank argues that she suffered an informational
injury when Dunn and Deuman “denied [her] access to truthful
information.” Frank Reply 10. A plaintiff suffers a cognizable
injury if she (1) “has been deprived of information that, on [her]
interpretation, a statute requires . . . a third party to disclose,”
and (2) “suffers, by being denied access to that information, the
type of harm Congress sought to prevent by requiring
disclosure.” Friends of Animals v. Jewell, 828 F.3d 989, 992
(D.C. Cir. 2016). Frank cannot satisfy the second requirement.
Again, she disclaimed detrimental reliance—or any other
harm—based on the misrepresentations in the Dunn and
Deuman affidavits.
Finally, Frank contends that the alleged FDCPA violations
encompass injuries of “the type Congress ‘sought to curb,’”
and thus that she need not prove “any additional harm,” such
as “[r]eliance on false information.” Frank Reply 9 (quoting
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549, 1550 (2016)).
For support, she cites the Act’s private right of action, 15
U.S.C. § 1692k, and Congress’s recognition that “[a]busive
debt collection practices contribute to . . . personal
bankruptcies, to marital instability, to the loss of jobs, and to
invasions of individual privacy,” id. § 1692(a).
7
As the Supreme Court clarified in Spokeo, however,
“Article III standing requires a concrete injury even in the
context of a statutory violation.” 136 S. Ct. at 1549. Congress
may “define [new] injuries and articulate [new] chains of
causation.” Lujan, 504 U.S. at 580 (Kennedy, J., concurring).
But “Congress’ role in identifying and elevating intangible
harms does not mean that a plaintiff automatically satisfies the
injury-in-fact requirement whenever a statute grants a person a
statutory right and purports to authorize that person to sue to
vindicate that right.” Spokeo, 136 S. Ct. at 1549; see also
Jeffries v. Volume Servs. Am., Inc., 928 F.3d 1059, 1063 (D.C.
Cir. 2019) (“The concreteness component of injury in fact
sharply limits when a plaintiff can establish standing based
solely on a violation of his statutory rights.”). Nothing in the
FDCPA suggests that every violation of the provisions
implicated here—no matter how immaterial the infraction—
creates a cognizable injury. See Hagy v. Demers & Adams, 882
F.3d 616, 621 (6th Cir. 2018) (“Nowhere in the [FDCPA] . . .
does Congress explain why [a violation of 15 U.S.C.
§ 1692e(11)] always creates an Article III injury.”).
Nor is it enough for Frank to simply point to the false
statements in the Dunn and Deuman affidavits, because “not all
inaccuracies cause harm or present any material risk of harm.”
Spokeo, 136 S. Ct. at 1550; see also Hancock v. Urban
Outfitters, Inc., 830 F.3d 511, 514 (D.C. Cir. 2016) (“[S]ome
statutory violations . . . result in no harm, even if they involve[]
producing information in a way that violate[s] the law.”
(internal quotation marks omitted)). A misrepresentation in a
debt collector’s court affidavit—including a false statement
about the affiant’s employer—is certainly capable of causing a
concrete and particularized injury. But Frank has not
demonstrated that these statements had that effect. Without that
showing, Frank lacks standing—even if Autovest and Andrews
violated the FDCPA.
8
Nevertheless, Frank insists that her subjective response to
the contested affidavits is irrelevant. All that matters, in her
telling, is the affidavits’ likely effect on a hypothetical
unsophisticated debtor. Frank Br. 10; Oral Arg. Tr. 4:18-22.
But this argument confuses standing with the merits. Frank
correctly identifies the substantive standard that governs her
FDCPA claims, which asks whether the debt collector’s
statement would confuse or mislead the unsophisticated
consumer (or in some courts, the least sophisticated consumer).
See Jones v. Dufek, 830 F.3d 523, 525 n.2 (D.C. Cir. 2016)
(explaining that although “[t]he term ‘unsophisticated’ is
probably more accurate[,] . . . [i]n practice,” the formulations
“appear to be the same”). Under this standard, “the specific
plaintiff need not prove that she was actually confused or
misled, only that the objective,” unsophisticated debtor would
be. See Jensen v. Pressler & Pressler, 791 F.3d 413, 419 (3d
Cir. 2015); see also Pollard v. Law Office of Mandy L.
Spaulding, 766 F.3d 98, 103 (1st Cir. 2014) (“[T]he FDCPA
does not require that a plaintiff actually be confused.”).
We agree with Frank that the FDCPA creates statutory
rights and remedies designed to protect the unsophisticated
consumer. Cf. Jones, 830 F.3d at 525. But Congress’s effort to
protect plaintiffs cannot relieve them of the requirement to
establish Article III standing—including a “concrete and
particularized” injury-in-fact. Spokeo, 136 S. Ct. at 1548
(explaining that a “particularized” injury is “personal” to the
plaintiff). “Broad though Congress’s powers may be to define
and create injuries, they cannot override constitutional limits.”
Hagy, 882 F.3d at 623.
This mismatch between the (objective) merits inquiry and
the (subjective) standing inquiry is not unique to the FDCPA,
but it can trip up an unsuspecting plaintiff. And case law has
not always helped matters. Some courts have characterized the
9
Act as “enlist[ing] the efforts of sophisticated consumers . . . as
‘private attorneys general’ to aid their less sophisticated
counterparts, who are unlikely themselves to bring suit under
the Act, but who are assumed by the Act to benefit from the
deterrent effect of civil actions brought by others.” Jensen, 791
F.3d at 419 (quoting Jacobson v. Healthcare Fin. Servs., Inc.,
516 F.3d 85, 91 (2d Cir. 2008)).
Read too broadly, this view of the FDCPA is incompatible
with the Supreme Court’s standing jurisprudence. See Lujan,
504 U.S. at 577 (explaining that “a subclass of citizens who
suffer no distinctive concrete harm” may not sue to enforce
statutory rights). Article III’s case-or-controversy requirement
remains in effect regardless of the doctrinal test that courts
apply to FDCPA claims. And as decisions by our sister circuits
indicate, the Act is rife with procedural requirements and
substantive prohibitions that do not necessarily trigger concrete
injuries when violated. See Casillas v. Madison Ave. Assocs.,
Inc., 926 F.3d 329, 339 (7th Cir. 2019) (concluding that a debt
collector’s failure to inform the debtor that a challenge to the
debt under section 1692g(a) must be “in writing” did not cause
concrete harm); Hagy, 882 F.3d at 622 (holding that the
plaintiffs lacked standing to bring a claim under section
1692e(11) for failure to disclose debt-collector status because
they did not show that “the non-disclosure created a risk of
double payment, caused anxiety, or led to any other concrete
harm”).
After Spokeo, a plaintiff must demonstrate a subjective—
that is, an actual—personal injury for standing even when his
merits argument turns on the perspective of an objective,
unsophisticated consumer. On the margin, this rule might
hamper the deterrence purpose of the Act by reducing the
number of viable civil suits. Still, an FDCPA plaintiff
possesses multiple avenues to standing, see Hagy, 822 F.3d at
10
622, and he need not suffer the same harm that underlies his
statutory claim. For instance, a plaintiff could submit evidence
of investigatory injuries—e.g., resources spent uncovering or
confirming the truth—rather than outright deception. In short,
there’s ample room for consumers of all sorts and levels of
sophistication to bring FDCPA suits, but under Article III, they
must be proper plaintiffs.
III
We vacate the district court’s judgment and remand with
instructions to dismiss the complaint for lack of jurisdiction.
So ordered.