Mindy Deutsch v. D&A Services LLC ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 22-1042
_______________
MINDY DEUTSCH, on behalf of herself and all others similarly situated,
Appellant
v.
D&A SERVICES LLC
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 3-21-cv-12286)
District Judge: Honorable Anne E. Thompson
_______________
Submitted Under Third Circuit L.A.R. 34.1(a):
April 14, 2023
_______________
Before: CHAGARES, Chief Judge, SCIRICA, and AMBRO,
Circuit Judges.
(Filed: April 18, 2023)
_____________________
OPINION
_____________________

This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
CHAGARES, Chief Judge.
Mindy Deutsch filed a lawsuit against D&A Services LLC (“D&A”) alleging that
D&A violated the Fair Debt Collection Practices Act (“FDCPA”) by sending her a
misleading debt collection letter. The District Court granted D&A’s motion to dismiss
for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), and Deutsch appeals. We
will affirm.
I.
Because we write primarily for the parties, we recite only the facts essential to our
decision.
Deutsch incurred a debt to a non-party credit card company. After she failed to
pay it for some time, the credit card company assigned the debt to D&A for collection.
D&A sent Deutsch two debt collection letters: the first on June 8, 2020 and the second
on July 13, 2020. Deutsch claims that the following language in the June 8, 2020 letter
was misleading in violation of the FDCPA:
Unless you notify this office within 30 days after receiving this notice that
you dispute the validity of this debt or any portion thereof, this office will
assume this debt is valid. If you notify this office in writing within 30 days
after receiving this notice that you dispute the validity of this debt or any
portion thereof, this office will obtain verification of the debt or obtain a copy
of a judgment and mail you a copy of such judgment or verification. If you
request of this office in writing within 30 days after receiving this notice[,]
this office will provide you with the name and address of the original creditor,
if different from the current creditor.
If you dispute the debt, or any part thereof, or request the name and address
of the original creditor in writing within the thirty-day period, the law
requires our firm to suspend our efforts to collect the debt until we mail the
requested information to you.
2
Appendix (“App.”) 31.
D&A refers to the first of these two paragraphs as the “G-Notice,” and the second
as the “Suspend Collection Language.” App. 40. We will use those terms when referring
to each paragraph individually, and we will refer to the paragraphs collectively as the
“Disputed Language.”
The rights and obligations described in the G-Notice are established by 15 U.S.C.
§ 1692g(a), a provision of the FDCPA requiring a debt collector to provide certain
information to a debtor — such as the name of the current creditor and the amount of the
debt — in a “written notice” within five days of “the initial communication with a
consumer in connection with the collection of any debt.” Section 1692g(a) further
requires that the written notice inform the debtor that, if she “notifies the debt collector in
writing within the thirty-day period that the debt, or any portion thereof, is disputed, the
debt collector will obtain verification of the debt” and mail it to the debtor. 15 U.S.C. §
1692g(a)(4). A debtor may also request “the name and address of the original creditor”
in writing within thirty days of receiving the notice, and the debt collector must provide
that information by mail. 15 U.S.C. § 1692g(a)(5).
Although the parties dispute whether it does so accurately, the Suspend Collection
Language tries to describe rights created by another provision of the FDCPA, 15 U.S.C. §
1692g(b). As explained above, § 1692g(a) gives a consumer the right to request
verification of a debt or information on the original creditor within thirty days of
receiving a debt collection notice. Section 1692g(b) guarantees that, if a consumer
invokes her § 1692g(a) right to request information about a debt, and the consumer
3
invokes this right in writing and within the thirty-day period prescribed by statute, a debt
collector must “cease collection of the debt” until it has provided the requested
information to the debtor. While a debt collector must describe a debtor’s § 1692g(a)
rights in its first communication with the debtor, the statute does not require it to provide
information about the debtor’s § 1692g(b) rights.
Deutsch brought a putative class action alleging that the Disputed Language was
misleading, in violation of the FDCPA.1 See 15 U.S.C. § 1692e (prohibiting debt
collectors from making “any false, deceptive, or misleading representation . . . in
connection with the collection of any debt.”). She alleged that the Suspend Collection
Language was misleading because it gave her the incorrect impression that she could
suspend collection by disputing all or part of the debt orally or outside the 30-day
window, which conflicts with the rights provided by § 1692g(b). As noted above, a debt
collector need not inform a debtor of the protections provided by § 1692g(b). But
Deutsch’s complaint alleges that, even though D&A was not required to inform her of her
§ 1692g(b) rights, the inclusion of the inaccurate information about her § 1692g(b) rights
had the effect of giving her “contrary and inconsistent” information about her rights
under § 1692g(a). App. 25.
The District Court granted D&A’s motion to dismiss the complaint for failure to
state a claim. It concluded that the Disputed Language, read holistically, is not
1
Deutsch’s complaint also alleges that certain other aspects of the two collection letters
violated the FDCPA, but her brief on appeal addresses only the Disputed Language. She
has therefore forfeited her other claims.
4
misleading because it does not suggest that a recipient could suspend collection by orally
disputing the debt or disputing the debt outside the statutory 30-day window. Deutsch
timely appealed.2
II.
On appeal, Deutsch claims that the District Court lacked jurisdiction to hear her
case because she does not have Article III standing to sue over the letter given the
Supreme Court’s recent decision in TransUnion LLC v. Ramirez, 141 S.Ct. 2190 (2021).3
Alternatively, she contends that if the District Court had jurisdiction, it erred by
concluding that the Disputed Language was not misleading and granting D&A’s motion
to dismiss for failure to state a claim.
A.
2
Deutsch has also moved to vacate the District Court’s opinion and judgment based on a
lack of Article III standing. A motions panel referred her motion for consideration by the
merits panel, and we resolve Deutsch’s motion to vacate in parallel with our evaluation of
her standing argument in her merits brief.
3
Whenever a possible lack of standing “is brought to the court's attention, whether
through a party or through its own discovery, the court is required to resolve the issue.”
Neiderhiser v. Borough of Berwick, 840 F.2d 213, 216 (3d Cir. 1988). We note,
however, that it is irregular for a plaintiff to contest her own standing on appeal. We
further note that Deutsch did not bring the standing issue to the attention of the District
Court and raised it for the first time on appeal only after the District Court dismissed her
claims on the merits. And while Deutsch claims that the TransUnion decision was an
intervening development that caused her to call into question her standing during the
pendency of the litigation, she could have raised that issue in the District Court: the
Supreme Court issued TransUnion on June 25, 2021, only days after Deutsch filed her
complaint and months before the District Court issued its order granting D&A’s motion
to dismiss. We remind counsel that attorneys have “a continuing duty to inform the
Court of any development which may conceivably affect an outcome of the litigation.”
In re Universal Mins., Inc., 755 F.2d 309, 313 (3d Cir. 1985) (quotation marks omitted).
That was not done here.
5
Article III standing is a threshold jurisdictional issue that “may be raised any time
during a lawsuit (including for the first time on appeal).” Temple Univ. Hosp., Inc. v.
Sec'y United States Dep't of Health & Hum. Servs., 2 F.4th 121, 130 (3d Cir. 2021). We
therefore must begin by addressing Deutsch’s challenge to Article III standing. We have
jurisdiction to determine our own jurisdiction when it is in doubt. United States v.
Kwasnik, 55 F.4th 212, 215 (3d Cir. 2022).
In order to invoke the jurisdiction of the federal courts, a plaintiff must have
Article III standing, which “requires a showing that the plaintiff has: (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.” N.J. Bankers Ass'n v.
Att'y Gen. N.J., 49 F.4th 849, 855 (3d Cir. 2022) (quotation marks omitted). The
requisite injury in fact must be “concrete and particularized.” Spokeo, Inc. v. Robins,
578 U.S. 330, 339 (2016). In its recent TransUnion decision, the Supreme Court
explained that the requirement of concrete injury means that not all plaintiffs who allege
a violation of a statutory right have Article III standing to bring suit over that violation.
141 S.Ct. at 2205. Only some violations of statutory rights — such as those that cause
“traditional tangible harms” or “intangible harms” that cause “injuries with a close
relationship to harms traditionally recognized as providing a basis for lawsuits in
American courts” — can give rise to standing. Id. at 2204.
Deutsch argues that she lacks standing to pursue her claims in federal court
because she has not alleged a concrete injury sufficient to confer standing under the
principles set forth in TransUnion. We disagree. Deutsch has Article III standing to
6
pursue her claims against D&A because she has adequately alleged that she has suffered
a concrete informational injury. “[T]he Supreme Court has repeatedly recognized,” even
in TransUnion itself, “that an informational injury, where a plaintiff alleges that she
failed to receive information to which she is legally entitled, is sufficiently concrete to
confer standing.” Kelly v. RealPage Inc., 47 F.4th 202, 211 (3d Cir. 2022) (quotation
marks and alterations omitted). We have explained that a plaintiff has alleged an
informational injury sufficient to give rise to standing if she alleges “(1) the omission of
information to which [she] claim[s] entitlement, (2) adverse effects that flow from the
omission, and (3) the requisite nexus to the concrete interest Congress intended to
protect” when it created a legal entitlement to the information at issue. Id. at 214.
Deutsch alleges an injury that satisfies all three of these elements. She has alleged
that the Disputed Language misled her about her rights under § 1692g(a), thereby
omitting the accurate information about her § 1692g(a) rights to which she is statutorily
entitled. Deutsch also adequately alleges that she suffered an adverse effect from the
omission of accurate information from the Disputed Language because it “frustrated [her]
ability to intelligently choose [her] response” and “deprived [her] of [her] right to enjoy
[the] benefits” provided by the FDCPA. App. 27. Finally, there is a clear nexus between
her alleged injury and the interest Congress intended to protect. Congress enacted the
FDCPA in response to “abundant evidence of the use of abusive [or] deceptive . . . debt
collection practices by many debt collectors.” Schultz v. Midland Credit Mgmt., Inc.,
905 F.3d 159, 161-62 (3d Cir. 2018). Deutsch’s alleged informational injury stems from
a purportedly deceptive debt collection practice and aligns with Congress’s goal of
7
“eliminat[ing] abusive practices by debt collectors.” Id. She has therefore alleged an
informational injury and has standing to pursue her claims.4
B.
Since we have concluded that Deutsch has standing to bring an FDCPA lawsuit
against D&A, we may address the merits of the District Court’s decision granting D&A’s
motion to dismiss. We review the District Court’s grant of a motion to dismiss de novo,
“accept[ing] the factual allegations in the complaint as true, draw[ing] all reasonable
inferences in favor of the plaintiff, and assess[ing] whether the complaint and the exhibits
attached to it contain enough facts to state a claim to relief that is plausible on its face.”
Wilson v. USI Ins. Serv. LLC, 57 F.4th 131, 140 (3d Cir. 2023) (quotation marks
omitted).
In determining whether a debt collection communication is false, deceptive, or
misleading in violation of the FDCPA, we “analyze[] [the communication] from the
perspective of the least sophisticated debtor.” Brown v. Card Serv. Ctr., 464 F.3d 450,
454 (3d Cir. 2006). This “least sophisticated debtor” standard is a lower bar than
reasonableness — “a communication that would not deceive or mislead a reasonable
debtor might still deceive or mislead the least sophisticated debtor.” Id. But although
this standard protects naïve or unsophisticated consumers, it also “prevents liability for
bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of
4
Accordingly, the District Court had subject matter jurisdiction under 28 U.S.C. § 1331and our appellate jurisdiction to review the District Court’s decision is authorized by 28
U.S.C. § 1291.
8
reasonableness and presuming a basic level of understanding and willingness to read with
care.” Wilson v. Quadramed Corp., 225 F.3d 350, 354-355 (3d Cir. 2000). Moreover,
“[e]ven the least sophisticated debtor is bound to read collection notices in their entirety,”
Campuzano-Burgos v. Midland Credit Mgmt., Inc., 550 F.3d 294, 299 (3d Cir. 2008), so
we read debt collection communications holistically when assessing whether they are
false, deceptive, or misleading.
The District Court concluded that the Disputed Language was not false, deceptive,
or misleading, and we agree with the District Court. Deutsch argues that the Suspend
Collection Language is misleading because it is susceptible to more than one
interpretation, one of which conflicts with § 1692g. She contends that the Suspend
Collection Language can be read to inaccurately suggest that a debtor could suspend
collection by requesting validation of all or part of the debt orally or outside the 30-day
window provided by the statute. But we do not read the Suspend Collection Language in
isolation. Instead, we read it in connection with the G-Notice that accompanies it. Even
for the least sophisticated debtor, the G-Notice eliminates any ambiguity: it explains that
a debtor who wishes to avail herself of her statutory right to validation of a debt must
request validation in writing and within 30 days of receiving a collection notice. The
Disputed Language therefore does not violate the FDCPA, and we agree with the District
Court’s decision to dismiss Deutsch’s claims.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
Because we have concluded that Deutsch has standing, we also deny her motion to vacate
9
the District Court’s opinion and judgment.
10