Yvonne Mack v. Resurgent Capital Services, L. ( 2023 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21‐2792
YVONNE MACK,
Plaintiff‐Appellant,
v.
RESURGENT CAPITAL
SERVICES, L.P. and LVNV
FUNDING, LLC,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18‐cv‐16300 — Sara L. Ellis, Judge.
____________________
ARGUED NOVEMBER 9, 2022 — DECIDED JUNE 7, 2023
____________________
Before ROVNER, JACKSON‐AKIWUMI, and LEE, Circuit Judges.
ROVNER, Circuit Judge. Yvonne Mack appeals from the dis‐
missal of her claims for lack of standing in this Fair Debt Col‐
lection Practices Act (“FDCPA”) case. See 15 U.S.C. § 1692 et
seq. The district court concluded that Mack failed to demon‐
strate that she had suffered an injury in fact sufficient to sup‐
port her standing to bring suit. But Mack adequately alleged
2 No. 21‐2792
an injury in fact, and supported her allegations with evidence
that the defendants’ violation of the statute caused her to suf‐
fer monetary damages, albeit of modest size. We therefore re‐
verse and remand for further proceedings.
I.
Mack had a US Bank credit card that she used to make
household purchases. After she allegedly defaulted on that
account, defendant LVNV Funding, LLC (“LVNV”) pur‐
chased the debt. Debts purchased by LVNV are serviced by a
related entity, defendant Resurgent Capital Services, L.P.
(“Resurgent”). In this instance, Resurgent engaged Frontline
Asset Strategies, LLC (“Frontline”) to collect on the debt. In a
letter dated April 27, 2018, Frontline informed Mack that her
account had been placed for collection, and that she owed
$7,179.87. The letter provided a website and a phone number
that Mack could use to pay the debt. It listed US Bank as the
“Original Creditor,” and LVNV as the “Current Creditor.”
The letter also contained, among other things, the following
notices to Mack:
This communication is from a debt collector and
is an attempt to collect a debt. Any information
obtained will be used for that purpose.
…
Unless you notify this office within 30 days after
receiving this notice that you dispute the valid‐
ity 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 from receiving
this notice that you dispute this debt, or any
portion thereof, this office will obtain
No. 21‐2792 3
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 no‐
tice, this office will provide you with the name
and address of the original creditor, if different
from the current creditor.
R. 1‐3 (hereafter “Frontline Letter”).
Although Mack was aware of her debt to US Bank, she was
uncertain about the amount claimed in the letter, which
seemed high to her, and her obligations to LVNV, an entity
with which she was not familiar. Within thirty days of receiv‐
ing this letter, Mack researched her options using her cell
phone, drafted a validation request by hand, traveled to her
local library to type and print the letter on the library’s com‐
puter (she did not have access to a computer or a printer at
home), and then went to the post office where she paid $6.70
in postage and $3.45 for a certified mail fee (for a total of
$10.15) to send the letter to Frontline. Her letter, postmarked
June 5, 2018, was received by Frontline on June 7, 2018. R. 1‐4.
Mack did not receive the validation that she requested. In‐
stead, she received a second letter, this one from Resurgent.
The letter identified US Bank as the “Original Creditor,”
LVNV as the “Current Owner,” and listed the balance of
$7,179.87. The body of the June 18, 2018 letter stated in whole:
Resurgent Capital Services L.P. manages the
above referenced account for LVNV Funding
LLC and has initiated a review of the inquiry we
recently received.
4 No. 21‐2792
For further assistance, please contact one of our
Customer Service Representatives toll‐free at
1‐866‐464‐1187.
Sincerely,
Customer Service Department
Resurgent Capital Services L.P.
Please read the following important notices as
they may affect your rights.
Unless you notify us within 30 days after receiv‐
ing this notice that you dispute the validity of
this debt, or any portion of it, we will assume
this debt is valid. If you notify us in writing
within 30 days after receiving this notice that
you dispute the validity of this debt, or any por‐
tion of it, we 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 re‐
quest of us in writing, within 30 days after re‐
ceiving this notice, we will provide you with the
name and address of the original creditor, if dif‐
ferent from the current creditor.
This is an attempt to collect a debt and any in‐
formation obtained will be used for that pur‐
pose. This communication is from a debt collec‐
tor.
R. 1‐5 (hereafter “Resurgent Letter”). The bottom of the Re‐
surgent Letter listed hours of operation, an address, phone
and fax numbers, and a “Customer Portal” website address.
Mack was confused and alarmed by the Resurgent Letter.
She had already requested validation within 30 days of
No. 21‐2792 5
receiving the Frontline Letter and had not received the re‐
quested validation. More than 30 days had passed since re‐
ceiving the Frontline Letter and she was now being told that
she would have to request validation again from a different
company or the creditor would assume the debt was valid.
She was even more confused regarding who owned the debt,
now believing that Resurgent might own it. She concluded
that she needed to send a second validation request, this time
to Resurgent, so that the creditor would not assume that the
debt was valid. She once again took the steps necessary to
write up her draft letter by hand. She returned to the library
to type it into the library computer (because library users can‐
not save previous documents on the library’s computer),
printed it, and returned to the post office where she once
again paid for postage and a certified letter fee (this time to‐
taling $3.95) to send her July 17, 2018 validation request.1
None of this was easy for Mack. She had been unem‐
ployed for some time and spent her days caring for family
members with serious health problems. Trips to the library
and post office meant that she was away from the family
members who needed her assistance. The $3.95 postage fee
for the second letter was also problematic for Mack. Mack ex‐
plained the harm caused by the letter from Resurgent:
1 To send the first letter, Mack appears to have used Priority Mail
($6.70) plus Certified Mail ($3.45) for the total of $10.15 that is reflected on
the receipt for that letter. The envelope for the second letter shows a cost
of $3.95, which we may assume included regular First Class postage of
fifty cents plus the Certified Mail fee of $3.45. See https://about.usps.
com/news/national‐releases/2017/pr17_062.htm (last visited June 7, 2023),
archived at https://perma.cc/J9KV‐AP4D. The defendants do not dispute
that Mack paid $3.95 in postage to send the second validation request.
6 No. 21‐2792
It was unclear—first of all, I didn’t get a re‐
sponse from the first letter. I asked for valida‐
tion. I got nothing. Shortly after that I got a sec‐
ond letter from a sister company as it appears to
be under the same umbrella here requesting the
same thing and waited and got no response.
So the confusing part was can they do this? Can
they ask me for—can they tell me that I owe a
debt to them and not verify the information that
I’m requesting and then just pass it on, which
they never verified any proof of—other than
sending this initial letter to me—is that—I was
trying to see is that legal, something they can
do, and is that going to continue on because it’s
time, money, frustration, you know, going to
the library, typing, printing and, you know, just
wanted to know what were they doing, is that
legal, because I’m steady dishing out money
that I don’t have and they’re not even respond‐
ing back to me, you know, things that I’m ask‐
ing for to validate it, just saying that, oh, you
owe me this money.
R. 65‐2, at 115–16. When asked what she meant by “dishing
out money,” Mack responded:
Well, I mean spending money. I have to pay for
the postage. Mind you, I’m not working or any‐
thing. So this is time, money to go to the library,
have it typed up[.]
No. 21‐2792 7
R. 65‐2, at 116.2 See also R. 65‐2, at 117 (where Mack explained,
“[T]he money was—it doesn’t seem like much, but when you
don’t have it, even this adds up, you know.”). Mack explained
that this was all new to her and that she was trying to take the
proper steps to validate the debt so that she would not “get
duped” into sending money to someone who had no proof of
the amount or ownership of the debt. She explained that any‐
one could claim that someone owed them a debt and that
without validation, there was no proof that LVNV or Resur‐
gent owned the debt. In addition to the monetary cost, Mack
also cited other harms from the Resurgent Letter including
the expenditure of her time in responding to the second vali‐
dation request and her added stress, frustration and confu‐
sion brought about by the Resurgent Letter.
Mack never received validation of the debt from Frontline,
Resurgent or LVNV. Approximately three months after send‐
ing her second request for validation, Mack filed a class action
suit against Resurgent and LVNV, claiming violations of the
Fair Debt Collection Practices Act (“FDCPA”). R. 1 (Com‐
plaint). In particular, Mack asserted in her Complaint that the
Resurgent Letter “would cause any consumer, let alone the
unsophisticated consumer, to believe that she must yet again
dispute the Debt despite the fact that such consumer had al‐
ready submitted a valid dispute of the Debt.” R. 1, at 6. She
alleged that the Resurgent Letter violated the FDCPA in a
number of ways, including that it used false, deceptive,
2 Mack did not testify about the cost of getting to the library, which
she testified was approximately five minutes from her home. Nor did she
discuss the cost of printing at the library. Without any evidence regarding
the costs of travel or printing, we will limit our analysis to the $3.95 that
Mack expended on postage for her second validation request.
8 No. 21‐2792
misleading and unfair or unconscionable means to collect or
to attempt to collect a debt in violation of sections 1692e,
1692e(10), and 1692f; it failed to adequately state the name of
the creditor to whom the debt was owed in violation of sec‐
tion 1692g(a)(2); and it was otherwise deceptive and failed to
comply with the FDCPA. Mack again asserted that these ma‐
terial violations of the FDCPA “would lead a consumer to be‐
lieve that their dispute had not been effective and that they
had to re‐dispute the debt, or that they did not have the rights
that Congress gave them under the FDCPA. In fact, Defend‐
ants’ letter confused and alarmed Plaintiff.” R. 1, at 6. She also
pled allegations in support of a class action. She attached to
her complaint a copy of the Frontline Letter as well as the re‐
ceipt for the postage and certified mail fees.
The defendants ultimately moved to dismiss under Rule
12(b)(1) for lack of standing. The defendants asserted that
Mack failed to allege an injury in fact from the Resurgent Let‐
ter, claiming only that the Letter confused and alarmed her.
They faulted Mack for not pleading that the confusion caused
her to take any action to her detriment on account of her con‐
fusion. Mack countered that she did in fact plead and demon‐
strate that the Resurgent Letter caused her to act to her detri‐
ment: it caused her to spend both time and money sending a
second request for validation in order to preserve her rights.
The district court ultimately agreed with the defendants that
Mack had failed to establish standing. The district court found
that the time and money spent to send the second validation
request did not rise to the level of detriment required for
standing in FDCPA cases because the Resurgent Letter “did
not adversely affect any interests Congress sought to protect
through the FDCPA and instead effectively provided Mack
with another opportunity to dispute her debt if she had failed
No. 21‐2792 9
to properly do so upon receipt of the first letter.” Mack v. Re‐
surgent Capital Servs., L.P., 2021 WL 3901747, *3 (N.D. Ill. Sept.
1, 2021). Mack could have established standing, the court ex‐
plained, if she had “taken some action related to her debt
management choices,” such as paying something she did not
owe, or paying a debt with low interest when the money
could have been used to pay a debt with high interest. Id. The
court characterized Mack’s second validation request as an
“attempt to clear up her confusion,” and compared this to in‐
juries arising from consulting a lawyer or filing suit, which
the court said were insufficient to establish standing. Id. Mack
appeals.
II.
Before we begin with our analysis of Mack’s appeal, we
must address a preliminary matter: in its opinion, the district
court acknowledged that the defendants moved under Rule
12(b)(1) to dismiss for lack of standing. The court then re‐
marked that, because the parties had engaged in discovery, it
would treat the motion as one for summary judgment under
Rule 56. That was error. Although a district court may trans‐
form a motion for dismissal under Rule 12(b)(6) into one for
summary judgment when “matters outside the pleadings are
presented to and not excluded by the court,” Fed.R.Civ.P.
12(d), “the Federal Rules of Civil Procedure contain no analo‐
gous recognition that a 12(b)(1) motion can evolve into dis‐
missal pursuant to Rule 56.” Capitol Leasing Co. v. F.D.I.C., 999
F.2d 188, 191 (7th Cir. 1993). A grant of summary judgment is
a decision on the merits, but “a court must dismiss the case
without ever reaching the merits if it concludes that it has no
jurisdiction.” Id. If the plaintiff lacks Article III standing to
sue, the court has no jurisdiction to hear the matter. Spokeo,
10 No. 21‐2792
Inc. v. Robins, 578 U.S. 330, 337–38 (2016) (noting that Article
III limits the power of the judiciary to addressing cases and
controversies, and “[s]tanding to sue is a doctrine rooted in
the traditional understanding of a case or controversy.”). “In
short, the question of jurisdiction is inappropriate for sum‐
mary judgment, and discussing the interplay of Rule 12(b)(1)
and Rule 56 verges on non sequitur.” Capitol Leasing, 999 F.2d
at 191. Nevertheless, “[w]hen subject‐matter jurisdiction—
which is to say, the power to hear and decide the case at all—
is at stake, a district judge may resolve factual disputes and
make any findings necessary to determine the court’s adjudi‐
catory competence.” Craftwood II, Inc. v. Generac Power Sys.
Inc., 920 F.3d 479, 481 (7th Cir. 2019). Although the court pur‐
ported early in its decision to treat the motion as one for sum‐
mary judgment, the court ultimately dismissed the case with‐
out prejudice due to lack of standing, and vacated its order
certifying a class. If Mack lacked standing, that would have
been the proper disposition, and we will therefore simply re‐
view the case as an appeal from a dismissal under Rule
12(b)(1).
On appeal, Mack asserts that the district court erred when
it found that the time, effort and out‐of‐pocket costs expended
in sending a second validation request were not adequate to
establish standing. We review de novo the district court’s dis‐
missal for lack of Article III standing. Flynn v. FCA US LLC, 39
F.4th 946, 952 (7th Cir. 2022). Standing consists of three ele‐
ments: a plaintiff must have “(1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the de‐
fendant, and (3) that is likely to be redressed by a favorable
judicial decision.” Flynn, 39 F.4th at 952 (quoting Spokeo, 578
U.S. at 338). “To establish injury in fact, a plaintiff must show
that he or she suffered ‘an invasion of a legally protected
No. 21‐2792 11
interest’ that is ‘concrete and particularized’ and ‘actual or im‐
minent, not conjectural or hypothetical.’” Spokeo, 578 U.S. at
1548 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992)). “By particularized, we mean that the injury must af‐
fect the plaintiff in a personal and individual way.” Lujan, 504
U.S. at 560 n.1. The Supreme Court has described a “concrete”
injury as an injury in fact, one that is real and not abstract,
although it need not necessarily be tangible. Spokeo, 578 U.S.
at 1548–49. In determining if an injury is concrete, “it is in‐
structive to consider whether an alleged intangible harm has
a close relationship to a harm that has traditionally been re‐
garded as providing a basis for a lawsuit in English or Amer‐
ican courts.” Spokeo, 578 U.S. at 341. “Tangible harms, like
physical or monetary harms, ‘readily qualify as concrete inju‐
ries.’” Persinger v. Southwest Credit Sys., L.P., 20 F.4th 1184,
1190 (7th Cir. 2021) (quoting TransUnion LLC v. Ramirez, 141
S. Ct. 2190, 2204 (2021)). A bare procedural violation, divorced
from any concrete harm, would not satisfy the injury‐in‐fact
requirement for Article III standing. Spokeo, 578 U.S at 341. In‐
stead, a plaintiff “must show that the violation harmed or
‘presented an “appreciable risk of harm” to the underlying
concrete interest that Congress sought to protect.’” Casillas v.
Madison Ave. Assocs., Inc., 926 F.3d 329, 333 (7th Cir. 2019)
(quoting Groshek v. Time Warner Cable, Inc., 865 F.3d 884, 887
(7th Cir. 2017)). “If a defendant has caused physical or mone‐
tary injury to the plaintiff, the plaintiff has suffered a concrete
injury in fact under Article III.” TransUnion, 141 S. Ct. at 2204.
Congress passed the FDCPA to curb “the use of abusive,
deceptive, and unfair debt collection practices by many debt
collectors.” 15 U.S.C. § 1692(a). Such practices “contribute to
the number of personal bankruptcies, to marital instability, to
the loss of jobs, and to invasions of individual privacy.” Id. In
12 No. 21‐2792
order to “eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain
from using abusive debt collection practices are not competi‐
tively disadvantaged, and to promote consistent State action
to protect consumers against debt collection abuses,” Con‐
gress placed certain obligations on debt collectors and
granted rights to consumers. 15 U.S.C § 1692(e). As is relevant
here:
Within five days after the initial communication
with a consumer in connection with the collec‐
tion of any debt, a debt collector shall, unless the
following information is contained in the initial
communication or the consumer has paid the
debt, send the consumer a written notice con‐
taining—
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is
owed;
(3) a statement that unless the consumer, within
thirty days after receipt of the notice, disputes
the validity of the debt, or any portion thereof,
the debt will be assumed to be valid by the debt
collector;
(4) a statement that if the consumer 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 verifica‐
tion of the debt or a copy of a judgment against
the consumer and a copy of such verification or
No. 21‐2792 13
judgment will be mailed to the consumer by the
debt collector; and
(5) a statement that, upon the consumer’s writ‐
ten request within the thirty‐day period, the
debt collector will provide the consumer with
the name and address of the original creditor, if
different from the current creditor.
15 U.S.C. § 1692g(a). The statute also provides a clear directive
to debt collectors who receive a written dispute from a con‐
sumer:
If the consumer notifies the debt collector in
writing within the thirty‐day period described
in subsection (a) that the debt, or any portion
thereof, is disputed, or that the consumer re‐
quests the name and address of the original
creditor, the debt collector shall cease collection
of the debt, or any disputed portion thereof, un‐
til the debt collector obtains verification of the
debt or a copy of a judgment, or the name and
address of the original creditor, and a copy of
such verification or judgment, or name and ad‐
dress of the original creditor, is mailed to the
consumer by the debt collector. Collection activ‐
ities and communications that do not otherwise
violate this subchapter may continue during the
30‐day period referred to in subsection (a) un‐
less the consumer has notified the debt collector
in writing that the debt, or any portion of the
debt, is disputed or that the consumer requests
the name and address of the original creditor.
Any collection activities and communication
14 No. 21‐2792
during the 30‐day period may not overshadow
or be inconsistent with the disclosure of the con‐
sumer’s right to dispute the debt or request the
name and address of the original creditor.
15 U.S.C. § 1692g(b).
Mack argues that Resurgent’s letter confused her and
caused her to question whether her first attempt to seek vali‐
dation of the debt had been deficient in some way. Because it
came from a different party, she was even more uncertain
about who owned the debt. As she pled in her complaint, the
Resurgent Letter “would cause any consumer, let alone the
unsophisticated consumer, to believe that she must yet again
dispute the Debt despite the fact that such consumer had al‐
ready submitted a valid dispute of the Debt.” R. 1, at 6. Citing
the various ways that the letter violated the FDCPA, Mack
again asserted that the defendants’ violations of the FDCPA
“would lead a consumer to believe that their dispute had not
been effective and that they had to re‐dispute the debt, or that
they did not have the rights that Congress gave them under
the FDCPA. In fact, Defendants’ letter confused and alarmed
Plaintiff.” R. 1, at 6. The defendants contend that Mack pled
nothing more than confusion, that confusion alone is insuffi‐
cient to establish a concrete harm, and so she lacks standing.
The defendants’ argument ignores the standards under
which we assess the allegations in a complaint when consid‐
ering a motion to dismiss. A complaint does “not need de‐
tailed factual allegations,” but “[f]actual allegations must be
enough to raise a right to relief above the speculative level[.]”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A com‐
plaint may meet this standard by pleading enough factual
matter (taken as true) “to raise a reasonable expectation that
No. 21‐2792 15
discovery will reveal evidence of” a necessary element of the
claim. Bell Atlantic, 550 U.S. at 556. See also Bazile v. Finance Sys.
of Green Bay, Inc., 983 F.3d 274, 280 (7th Cir. 2020). Where a
complaint does not detail an injury, if the “allegations support
a plausible inference that [the plaintiff] suffered a concrete
detriment to her debt‐management choices,” the details re‐
garding how the plaintiff would have acted differently would
have to be resolved later. Bazile, 983 F.3d at 281. See also
Spuhler v. State Collection Serv., Inc., 983 F.3d 282, 285 (7th Cir.
2020) (initially, “a plaintiff may demonstrate standing by
clearly pleading allegations that ‘plausibly suggest’ each ele‐
ment of standing when all reasonable inferences are drawn in
the plaintiff’s favor”). Where the debt collector challenges the
truth of the underlying jurisdictional allegations, “the action
may not proceed without additional inquiry into whether she
actually suffered such a harm.” Bazile, 983 F.3d at 281. At that
point, “the plaintiff must supply proof, by a preponderance
of the evidence or to a reasonable probability, that standing
exists.” Spuhler, 983 F.3d at 285. Moreover, “if a complaint
‘omitted essential jurisdictional allegations,’ but evidence
later demonstrates that the court has jurisdiction, ‘the defi‐
ciency in the complaint is not fatal.’” Spuhler, 983 F.3d at 285
(quoting Casio, Inc. v. S.M. & R. Co., 755 F.2d 528, 530 (7th Cir.
1985).
In this instance, Mack pled that the Resurgent Letter
would confuse any debtor, leading her to believe that her ini‐
tial dispute of the debt was not valid, and causing her to be‐
lieve that she must re‐dispute the debt or lose the rights that
the FDCPA grants to debtors. She also alleged that she was,
in fact, confused in that manner. The debt, as we have noted,
must be disputed in writing. Mack attached to her complaint
the receipt detailing what she paid to mail the first letter.
16 No. 21‐2792
Freeman v. Metropolitan Water Reclamation Dist. of Greater Chi‐
cago, 927 F.3d 961, 963 (7th Cir. 2019) (when reviewing a grant
of a motion to dismiss, we assume the truth of the allegations
in the complaint and its attachments); Carmody v. Board of Trs.
of Univ. of Ill., 747 F.3d 470, 471 (7th Cir. 2014) (when review‐
ing a grant of a motion to dismiss, we take the facts alleged in
the complaint as true and also consider attached exhibits).
Applying the Bell Atlantic standard, it is reasonable to infer
that Mack re‐disputed the debt, and in doing so suffered a
concrete injury at least in the form of postage paid to send the
second validation request. Mack’s deposition testimony “illu‐
minated these allegations.” Persinger, 20 F.4th at 1190. She
clarified that she went through the same process to mail the
second letter as she did for the first, spending time, effort, and
money for postage and certified mail fees. R. 65‐2, at 116–17.
The Resurgent Letter thus caused her to suffer a concrete det‐
riment to her debt‐management choices in the form of the ex‐
penditure of additional money to preserve rights that she had
already preserved.
Congress clearly anticipated that preserving the right to
validation would have some cost to the consumer: the provi‐
sion requires that the consumer notify the debt collector of the
request for validation “in writing.” The initial $10.35 that
Mack spent sending the first validation request was an ex‐
pected cost of the consumer preserving her rights. But with
the second postage fee of $3.95, Mack has pled harm to an un‐
derlying concrete interest that Congress sought to protect.
Casillas, 926 F.3d at 333. Namely, Congress sought to protect
debtors from abusive debt collection practices that contrib‐
uted to personal bankruptcies, to marital instability, to the
loss of jobs, and to invasions of individual privacy. Money
damages caused by misleading communications from the
No. 21‐2792 17
debt collector are certainly included in the sphere of interests
that Congress sought to protect. TransUnion, 141 S. Ct. at 2204.
Indeed, when we asked counsel at oral argument whether
there was any limit to how many times a debt collector could
mislead a debtor into reasserting rights and spending addi‐
tional money to do so, counsel’s answer, essentially, was that
her client had done so only once. See Oral Argument at 18:15–
19:00 (“This was one letter though. This wasn’t multiple at‐
tempts.”). An argument that the defendant harmed the plain‐
tiff only once is not an argument that the plaintiff was not
harmed. There is no discernable limit to the number of times
a debt collector could mislead a debtor to her detriment with
impunity under that argument.
Although money damages are almost always found to be
concrete harm, Persinger, 20 F.4th at 1190, the defendants con‐
tend that we must look to the reason that Mack spent the
money. They argue that because she spent the money in order
to clear up her confusion, the cost is inadequate to establish
standing. It is true that we have held that “the state of confu‐
sion is not itself an injury.” Brunett v. Convergent Outsourcing,
Inc., 982 F.3d 1067, 1068 (7th Cir. 2020). But the defendants’
argument mischaracterizes Mack’s claim and her evidence.
“A debtor confused by a dunning letter may be injured if she
acts, to her detriment, on that confusion—if, for example, the
confusion leads her to pay something she does not owe, or to
pay a debt with interest running at a low rate when the money
could have been used to pay a debt with interest running at a
higher rate.” Brunett, 982 F.3d at 1068. The examples offered
in Brunett are not an exclusive list of the ways in which a
plaintiff’s confusion might cause her to act to her detriment.
Mack spent extra money not to clear up her confusion but in
order to preserve her right to seek validation, which she had
18 No. 21‐2792
been misled to believe she failed to do the first time. This dis‐
tinguishes Mack’s situation from cases where plaintiffs
caused themselves injury or were literally trying to clear up
their own confusion, for example, by seeking advice from a
lawyer.
The defendants also assert that sending the second letter
did not harm Mack in any way because it helped her preserve
her rights. But Mack had already preserved her rights, and it
was only because of the misleading Resurgent Letter that
Mack went to the trouble and expense of asserting her rights
a second time. This did not benefit Mack in any way as her
testimony reveals. Fixing the problem that the Resurgent Let‐
ter created caused Mack to again leave her home where she
was caring for ill relatives, travel to the library, type and print
the letter, go to the post office and again pay to mail the letter
to the defendants. That the dollar cost was modest is irrele‐
vant; she was misled to her financial detriment. Craftwood II,
920 F.3d at 481 (even when an injury is slight, an “identifiable
trifle” suffices to establish standing).
Mack meets the remaining prongs of the standing test as
well. The injury was particular to her. Lujan, 504 U.S. at 560
n.1. That is, the money she spent fixing the problem created
by the Resurgent Letter came out of her own pocket. The time
and effort she spent reasserting her rights were specific to her.
These injuries affected Mack “in a personal and individual
way.” Id. Thus, Mack has adequately demonstrated an injury
in fact.
That injury is also fairly traceable to the challenged con‐
duct of the defendants. Spokeo, 578 U.S. at 338; Flynn, 39 F.4th
at 952. Mack pled that, instead of sending the statutorily re‐
quired validation, the debt collector sent a misleading
No. 21‐2792 19
communication that violated the statute and caused her to be‐
lieve that she had not yet adequately preserved her right to
validation. The Resurgent Letter led her unnecessarily to ex‐
pend additional time, money and effort reasserting her right.
Mack would not have gone to the trouble and expense of
sending a second request for validation if she had not been
misled by the Resurgent Letter.
Finally, Mack’s injury is likely to be redressed by a favor‐
able judicial decision. Spokeo, 578 U.S. at 338. In addition to
her modest money damages, the FDCPA provides for statu‐
tory damages up to $1000. The defendants protest that Mack
has disclaimed actual damages and they contend that this
means her injuries are not redressable by a favorable result.
They cite the complaint and a portion of Mack’s deposition as
evidence that Mack does not seek recovery for the time and
money she spent sending the second validation request. That
is not a fair reading of the complaint, though, which requests
statutory damages, costs, reasonable attorney’s fees and “any
other relief deemed appropriate,” a phrase which easily en‐
compasses actual damages. As for the deposition, defendants’
counsel sought Mack’s admission that the complaint did not
use the words “actual damages” and instead sought only stat‐
utory damages. When it became clear that Mack, a layperson,
did not know the legal difference between actual and statu‐
tory damages, Mack’s counsel interjected and conceded that
the complaint did not expressly ask for actual damages. Con‐
struing the evidence in Mack’s favor for the purposes of the
motion to dismiss, this was not a concession that Mack was
not seeking actual damages but only a concession that the
complaint did not use that express term. Because the com‐
plaint included the catch‐all “any other relief” clause and be‐
cause Mack made clear at her deposition that the cost of
20 No. 21‐2792
postage was an actual loss to her, this argument falls flat. Even
if Mack disclaimed compensatory damages for the postage,
statutory damages would more than compensate her for her
modest out‐of‐pocket costs and satisfy the redressability
prong of the standing test. “The FDCPA does not require
proof of actual damages as a precursor to the recovery of stat‐
utory damages.” Keele v. Wexler, 149 F.3d 589, 593‐94 (7th Cir.
1998). Thus Mack’s injuries are likely to be redressed by a fa‐
vorable judicial decision. Cf. Uzuegbunam v. Preczewski, 141
S. Ct. 792, 800–02 (2021) (holding that a request for nominal
damages satisfies the redressability element of standing
where the plaintiff’s claim is based on a completed violation
of a legal right, and noting that a party whose rights have been
invaded can always recover nominal damages without fur‐
nishing any evidence of actual damage).
We decline to address Mack’s additional argument that
standing is supported by a theory that the Resurgent Letter
intruded upon her seclusion or invaded her privacy, or that it
resembled common‐law fraud. Finally, when the district
court dismissed the case, it also vacated its order certifying
the class. Mack notes that, on remand, it will be necessary to
re‐define the previously certified class to include only those
persons who submitted a second dispute. We agree that the
class definition should be modified to limit the class to per‐
sons who acted to their detriment upon receiving the second
letter.
REVERSED AND REMANDED.