St.
John's University School of Law
St. John's Law Scholarship Repository
Bankruptcy Research Library Center for Bankruptcy Studies
2022
FDCPA Claims: Are Intangible Injuries “Concrete” Injuries?
Kimberly Moyal
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This memorandum examines what types of intangible injuries satisfy the concrete injury
prong under the first element of the Article III standing analysis. Part I of this memorandum
outlines the FDCPA requirements and the Article III requirements for a consumer to have
standing to bring an FDCPA claim in federal court. Part II of this memorandum explains how
circuit courts are split over what intangible injuries—including: (A) confusion, (B) stress or
anxiety, and (C) omissions—are “concrete” under Article III.
Discussion
I. The FDCPA holds a debt collector accountable for their conduct.
A. A consumer generally has a claim against a debt collector that engages in any
prohibited conduct under 15 U.S.C. § 1692(d), (e), and (f).
A consumer generally has the right to pursue an FDCPA claim against a debt collector in
federal court under Article III of the U.S. Constitution.7 A debt collector that collects a debt from
a consumer is subject to the FDCPA.8 A consumer has a cause of action under the FDCPA when
a debt collector: (1) “harass[es], oppress[es], or abus[es] any person;” (2) “use[s] false,
deceptive, or misleading representation[s];” or (3) “use[s] unfair or unconscionable means” to
collect debts.9
The FDCPA gives a consumer the right to sue a debt collector that violates any provision
of the FDCPA.10 A consumer can sue a debt collector for “such additional damages as the court
926 F.3d at 331 (noting that a debt collector’s omission did not constitute a concrete injury for Article III standing
purposes).
7
See 15 U.S.C. § 1692; see U.S. Const. art. III, §§ 1–2.
8
15 U.S.C. § 1692(a) (defining a “debt collector” as “any person who . . . regularly attempts to collect, directly or
indirectly, debts owed or due” and defining a “consumer” as “any natural person obligated or allegedly obligated to
pay any debt”).
9
15 U.S.C. §§ 1692(d), 1692(e), 1692(f).
10
See 15 U.S.C. § 1692(k).
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may allow, but not exceeding $1,000” or “not to exceed the lesser of $500,000” in a class action
case.11 A consumer may also sue for the costs of the action and reasonable attorney’s fees.12
Section 1692(d) of the FDCPA gives a consumer a cause of action against a debt
collector that “harass[es], oppress[es], or abuse[s] any person in connection with the collection of
a debt.” For example, a debt collector is prohibited from using threats, violence, criminal means,
profane language, publicizing a consumer who owes debts, advertising the sale of debts, and
constantly calling a consumer to collect debts.13
Section 1692(e) of the FDCPA gives a consumer a cause of action against a debt
collector that uses “any false, deceptive, or misleading representation or means in connection
with the collection of any debt.” For example, a debt collector is prohibited from falsely
representing an affiliation with the United States or any state.14 A debt collector is prohibited
from misrepresenting the amount or legal status of a debt or misrepresenting that a
communication is from an attorney.15 Additionally, a debt collector is prohibited from claiming
that the nonpayment of any debt will result in the arrest or seizure of property or wage of a
consumer.16 A debt collector is also prohibited from omitting or failing to disclose written
communication with the consumer.17
15 U.S.C. § 1692(f) gives a consumer a cause of action against a debt collector that
“use[s] unfair or unconscionable means to collect or attempt to collect any debt.” For example, a
debt collector is prohibited from charging any interest or fee that was not expressly authorized.18
11
Id.
12
Id.
13
15 U.S.C. § 1692(d)(1)–(5).
14
15 U.S.C. § 1692(e)(1).
15
15 U.S.C. § 1692(e)(2).
16
15 U.S.C. § 1692(e)(4).
17
15 U.S.C. § 1692(e)(11); 15 U.S.C. § 1692(e)(1)–(16).
18
15 U.S.C. § 1692(f)(1).
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A debt collector is also prohibited from soliciting postdated checks, depositing or threating to
deposit postdated checks, or threatening to take any nonjudicial action.19
B. A consumer must have standing under Article III to bring an FDCPA claim.
“Under Article III of the Constitution, federal courts are limited to deciding actual cases
or controversies.”20 To have standing to bring an FDCPA claim in federal court, “[t]he plaintiff
must have (1) suffered an injury-in-fact, (2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”21 The
injury-in-fact element has two sub-elements.22 The injury must be “concrete and
particularized.”23
In the years following Spokeo, circuit courts have been split over what types of injuries
satisfy the “concrete” prong of the injury-in-fact element under Article III standing.24 “To
establish injury-in-fact, a plaintiff must show that he or she suffered an invasion of a legally
protected interest that is concrete and particularized and actual or imminent, not conjectural or
hypothetical.”25 A “concrete injury” means that the injury “‘must be de facto; that is, it must
actually exist.”26 Additionally,
a concrete harm must have a ‘close relationship’ to a harm ‘traditionally’
recognized as providing a basis for a lawsuit in American courts.’ Tangible harms,
including ‘[m]onetary harms’ are among those that ‘readily qualify as concrete
injuries under Article III.’ Intangible harms also may be concrete, provided they
satisfy the ‘close relationship’ analysis, in which the ‘inquiry [is] whether plaintiffs
19
15 U.S.C. § 1692(f)(1)–(4); 15 U.S.C. § 1692(f)(1)–(8).
20
Moore v. Blibaum & Associates, P.A., 693 Fed.Appx. 205, 205 (4th Cir. 2017).
21
Spokeo, Inc., 578 U.S. at 338.
22
Id. at 339.
23
Id. (noting that “[f]or an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way’”
and that “a ‘concrete’ injury must . . . actually exist . . . [be] ‘real,’ and not ‘abstract’”).
24
See Trichell v. Midland Credit Management, Inc., 964 F.3d 990, 1001–02 (11th Cir. 2020).
25
Spokeo, 578 U.S. at 339.
26
Id.
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have identified a close historical or common-law analogue for their asserted
injury.’27
“When a plaintiff alleges an intangible injury from a statutory violation, history and the
judgment of Congress ‘play important roles’ in determining whether the injury is sufficiently
concrete.”28
Overall, a consumer has standing to bring an FDCPA claim in federal court if he or she
proves that the intangible harm they suffered, such as extreme stress, resulted in a concrete
injury.29
II. Courts continue to determine what intangible injuries qualify as “concrete”
injuries under Article III in FDCPA claims.
A. Confusion experienced by a consumer alone is generally not a concrete injury.
The United States Courts of Appeals for the Sixth, Seventh, Ninth, and Eleventh Circuits
have held that a consumer’s confusion alone does not satisfy the concrete injury requirement
under Article III.30 For example, in a case before the Sixth Circuit, the consumer argued that the
confusion he suffered, although intangible, qualified as a concrete injury.31 The consumer
alleged that the debt collector allegedly misrepresented its true name and caused the consumer to
27
Age Kola v. Forster & Garbus LLP, 2021 U.S. Dist. LEXIS 172197, at *11–12 (S.D.N.Y. 2021) (quoting Spokeo,
578 U.S. at 341); TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2197 (2021) (“Physical or monetary harms readily
qualify as concrete injuries under Article III, and various intangible harms—like reputational harms—can also be
concrete.”).
28
Cooper v. Atl. Credit & Fin. Inc., 822 Fed.Appx. 951, 953 (11th Cir. 2020).
29
Rivas v. Midland Funding, LLC, 842 Fed.Appx. 483, 486 (11th Cir. 2021) (holding that the consumer had standing
to bring an FDCPA claim in federal court because the debt collector misrepresented the amount of debt owed on their
website, which caused the consumer extreme stress and loss of sleep).
30
Ward v. National Patient Account Services Solutions, 9 F.4th 357, 363 (6th Cir. 2021); Pennell v. Global Trust
Management, LLC, 990 F.3d 1041, 1045 (7th Cir. 2021); Adams v. Skagit Bonded Collectors, LLC, 836 Fed.Appx.
544, 547 (9th Cir. 2020); Cooper, 822 Fed.Appx at 954 (noting that the consumer’s claim that “[the debt collector’s]
alleged violations . . . left her ‘confused about her statutory rights’ . . . [was] insufficient to establish that [the consumer]
had standing to bring her claim” in federal court); Trichell v. Midland Credit Management, Inc., 964 F.3d 990, 1001–
02 (11th Cir. 2020).
31
Ward, 9 F.4th at 363.
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mail a cease-and-desist letter to the wrong entity.32 But the Sixth Circuit rejected the consumer’s
claim that his “confusion” led him to sustain a cognizable concrete injury because the confusion
did not lead the consumer to take some sort of detrimental action.33 The confusion merely led the
consumer to send a letter to the wrong entity.34
Similarly, in the United States Court of Appeals for the Seventh Circuit, a consumer
claimed that she sustained a concrete injury because the debt collector sent her a letter regarding
her outstanding debt even though the consumer allegedly sent a cease-communication request.35
But the Seventh Circuit held, as it has before, that “‘the state of confusion is not itself an injury’”
especially when the consumer did not take action to pay the debt and when the debt collector
never received the cease-communication request in question.36 Additionally, the Ninth Circuit
held that the “bare allegation of confusion” did not prove a concrete injury because the consumer
failed to prove that “he forwent any action because of the allegedly misleading statements in the
[debt collector’s] letters.”37
Conversely, the United States Court of Appeals for the Second Circuit held that
confusion can satisfy the concrete injury requirement under Article III.38 In the Second Circuit
case, the consumer’s confusion over who to pay could have “deprived [the consumer] of
information relevant to the debt prompting the foreclosure proceeding, posing a ‘risk of real
32
Id.
33
Id.
34
Id. (noting that the Sixth Circuit has repeatedly held that “confusion alone is not a concrete injury for Article III
purposes”); see Garland v. Orlans, PC, 999 F.3d 432, 437–38 (6th Cir. 2021); Age Kola, 2021 U.S. Dist. LEXIS
172197, at *17 (relying on the Sixth Circuit to determine that “receiving a letter from a debt collector that [is]
confusing
35
. . . as to the amount owed” is also not a concrete harm).
Pennell, 990 F.3d at 1045 (“For the alleged injury to be concrete, a plaintiff must have acted ‘to her detriment, on
that confusion’”); Brunett v. Convergent Outsourcing Inc., 982 F.3d 1067, 1068 (7th Cir. 2020); Wadsworth v. Kross,
Lieberman & Stone, Inc., 12 F.4th 665, 668 (7th Cir. 2021).
36
Pennell, 990 F.3d at 1045.
37
Adams, 836 Fed.Appx. at 547.
38
Cohen v. Rosicki, Rosicki & Associates, P.C., 897 F.3d 75, 82 (2d Cir. 2018).
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harm’ insofar as it could hinder the exercise of his right to defend or otherwise litigate that
action.”39
B. Stress, anxiety, or fear experienced by a consumer are sometimes concrete injuries.
The United States Courts of Appeals for the Fourth and Eleventh Circuits have held that a
consumer suffers a concrete injury under Article III when a consumer experiences extreme stress
caused by a debt collector’s actions.40 For example, in a case before the Fourth Circuit, the debt
collector violated the FDCPA by “demanding payment [from the consumer] at an inflated sum
based on an improper interest rate.”41 The Fourth Circuit held that the consumer’s suffering of
“‘emotional distress, anger, and frustration’” from the debt collector’s actions satisfied the
injury-in-fact element of Article III.42 Similarly, in a case before the Eleventh Circuit, the debt
collector published the wrong amount of debt owed by the consumer on their website.43 When
the consumer saw the wrong amount of debt on the website, the consumer “became so ‘stressed
and worried’ that he ‘couldn’t sleep.’”44 Thus, the Eleventh Circuit held that the consumer’s
injuries of extreme stress and loss of sleep were “sufficiently tangible—and therefore concrete—
to confer Article III standing.”45
However, the United States Courts of Appeals for the Sixth and Eighth Circuits have
held that a consumer does not suffer a concrete injury under Article III when a consumer
experiences anxiety and fear caused by a debt collector’s actions.46 In the Sixth Circuit case, the
39
Id. (concluding that the consumer “ha[d] alleged an injury-in-fact and therefore ha[d] standing”).
40
Moore v. Blibaum & Associates, P.A., 693 Fed.Appx. 205, 206 (4th Cir. 2017).; Rivas v. Midland Funding, LLC,
842 Fed.Appx. 483, 486 (11th Cir. 2021).
41
Moore, 693 Fed.Appx. at 206.
42
Id.
43
Rivas, 842 Fed.Appx. at 486.
44
Id. (noting that the wrong debt amount remained on the website for around six months).
45
Id.
46
Buchholz v. Meyer Njus Tanick, PA, 946 F.3d 855, 859 (6th Cir. 2020); Frank v. Autovest, LLC, 961 F.3d 1185,
1188 (D.C. Cir. 2020); Ojogwu v. Rodenburg Law Firm, 26 F.4th 457, 463 (8th Cir. 2022).
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consumer alleged that the letters he received from the debt collector “made [the consumer] feel
anxious and fear that [the debt collector] would sue him if he did not promptly pay.”47 The Sixth
Circuit held that the consumer’s anxiety and fear of a future harm—litigation—was not a
concrete injury.48
Similarly, the United States Court of Appeals for the Eighth Circuit did not find a
concrete injury when the consumer claimed that the debt collector caused him “fear of answering
the telephone, nervousness, restlessness, irritability, amongst other negative emotions” when the
consumer received a copy of a garnishment summons from the debt collector.49
C. A consumer rarely proves that an omission by a debt collector is a concrete injury.
The United States Court of Appeals for the Seventh Circuit does not consider an
omission made by a debt collector to be a concrete injury under Article III.50 In Casillas, the debt
collector omitted “the process that the [FDCPA] provides for verifying a debt” from the letter
sent to the consumer.51 In response, the Seventh Circuit held that receiving an “incomplete letter”
was not a concrete harm under Article III.52
By contrast, the United States Court of Appeals for the Second Circuit has held that an
47
Buchholz, 946 F.3d at 859.
48
Id. at 864 (noting that a cognizable intangible injury could have been inferred if “the debt collector either knowingly
litigated a time-barred claim or where the debt collector threatened the consumer with arrest and criminal prosecution
unless the consumer paid promptly”); Hagy v. Demers & Adams, 882 F.3d 616, 622 (6th Cir. 2018) (holding that the
consumer lacked standing to bring an FDCPA claim because the consumer failed to prove that the debt collector’s
FDCPA violation “created a risk of double payment, caused anxiety, or led to any other concrete harm”).
49
Ojogwu, 26 F.4th at 463 (agreeing with the Sixth Circuit that “sending a letter merely inform[ing] the plaintiff of
his debts” is not a concrete injury because “‘[t]he cause of [the consumer’s] anxiety falls squarely on [the consumer]
because he chose not to pay his debts—and now fears the consequences of his delinquency’”).
50
Casillas v. Madison Ave. Assocs., 926 F.3d 329, 332 (7th Cir. 2019).
51
Id. at 331 (“The [FDCPA] requires debt collectors to notify consumers about the process that the statute provides.”).
52
Id. at 332; see, e.g., Markakos v. Medicredit, Inc., 997 F.3d 778, 780 (7th Cir. 2021) (noting that the Seventh Circuit
has repeatedly held that a debt collector omitting certain information in violation of the FDCPA does not definitively
cause an injury-in-fact to confer Article III standing).
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omission made by a debt collector can satisfy the concrete injury requirement under Article III.53
In Strubel, the debt collector did not tell the consumer that she must exercise her rights under the
FDCPA in writing.54 In Strubel, the Second Circuit held differently than the Seventh Circuit in
Casillas because of the following55:
Strubel is materially different from [Casillas]. When the plaintiff in Strubel
received the incomplete notice, she did not yet know whether she would ever object
to a credit card purchase. When [the plaintiff in Casillas] received the incomplete
notice, she already knew that she would not dispute her debt. In other words, unlike
[the plaintiff in Casillas], the plaintiff in Strubel alleged at least a possibility that
the omission would hurt her.
Conclusion
“As explained in Spokeo and Casillas,” it is impermissible for plaintiffs “to invoke the
power of the federal courts to litigate an alleged FDCPA violation that did not injure them in a
concrete way, tangible or intangible.”56 Generally, intangible injuries such as the confusion of a
consumer and an omission by a debt collector alone do not qualify as concrete harms for Article
III standing purposes.57 However, other intangible harms such as stress or anxiety sometimes
qualify as concrete harms for Article III standing purposes.58 Additionally, proving that an
intangible harm is “concrete,” can be difficult for a consumer, which in turn, may block a
consumer from having standing to bring an FDCPA claim in federal court.59 All in all, the circuit
53
Strubel v. Comenity Bank, 842 F.3d 181, 185 (2d Cir. 2016).
54
Id.
55
Casillas, 926 F.3d at 336; Strubel, 842 F.3d at 200 (holding that the debt collector’s omission of the consumer’s
rights under the FDCPA could have caused “a real harm necessary to concrete injury and Article III standing”).
56
Larkin v. Finance System of Green Bay, Inc., 982 F.3d 1060, 1066–67 (7th Cir. 2020).
57
Ward v. National Patient Account Services Solutions, 9 F.4th 357, 363 (6th Cir. 2021); Casillas, 926 F.3d at 336.
58
Rivas v. Midland Funding, LLC, 842 Fed.Appx. 483, 486 (11th Cir. 2021).
59
See, e.g., Markakos, 997 F.3d at 780; Ewing v. MED-1 Solutions, LLC, 24 F.4th 1146, 1151 (7th Cir. 2022) (noting
that “[i]ntangible harms can be more difficult to assess” unless the consumer shows that their injury is closely related
to the intangible harm in question).
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split has left some allegedly injured consumers without standing to bring FDCPA claims in
federal court under Article III.60
60
Ward, 9 F.4th at 363; Casillas, 926 F.3d at 331.
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