BREAKING NEWS) — The author of this post is a paralegal and consultant to attorneys regarding real property, foreclosure and consumer issues. The concepts contained within this post are for educational and research purposes only and should not be construed as legal advice. In the event one should find this material useful, it is highly recommended that one consult with an attorney who is not only well versed in these matters, but with an attorney who has a winning track record on debt collection issues, like the cases discussed herein.
The last debt collection case we discussed was won by the consumers; however, this case took just the opposite turn because of failure to prove a “concrete injury in fact” under Spokeo and other case law.
In the case of Benjamin Ojogwu v. Rodenberg Law Firm, this matter involved a garnishment, which was disputed by the consumer, who retained counsel to defend it, despite being served individually instead of through counsel. This matter also involved a disagreement amongst the judges of the very same District Court in Minnesota. This is referred to by the appellate court as an “intradistrict conflict.” The consumer won the initial round in this event, only to be overturned after the law firm appealed the lower court’s decision. You can read the case below:
What actual harm came to Ojogwu (the consumer)? The 8th Circuit U.S. Court of Appeals overturned the lower court’s ruling, citing the fact that the consumer lacked Article III standing because he failed to allege and the record didn’t show he suffered concrete injury in fact; thus, the appellate court reversed the decision and sent the complaint back to the lower court for dismissal.
The takeaway from this case, as compared to the previous one cited on this blog, is that counsel for the plaintiff knew or should have known whether or not all of the tenets of Spokeo v. Robins did in fact exist before spending time and money wasting the courts’ time and resources litigating the matter. The law firm was representing Portfolio Recovery Associates, a third party debt collection agency, wherein a judgment was rendered in the matter. The plaintiff argued that the direct mailing violation under 15 U.S.C. ยง 1692(a)(2) was an “intangible injury” (“actual damages in the form of fear of answering the telephone, nervousness, restlessness, irritability, amongst other negative emotions.”) None of the allegations was deemed cognizable by the appellate court in its ruling.
This would lead the author of this post to believe that your mental state regarding dunning debt collection phone calls is not enough to establish standing. Spending money retaining counsel doesn’t constitute a “tangible injury” because of the expense of the suit itself. No qualified medical diagnosis was rendered and alleged and because the plaintiff failed to prove any medical harm, there was no concrete injury in fact.
Let this also be a warning to consumers that unless you want your private mental state aired in public like dirty laundry, because the other side gets to cross examine your shrink and smear you as a nut job in front of the court, you might think about actual “concrete” harm before proceeding with an FDCPA suit.
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