Florida court holds consumer has no standing to sue under the FDCPA where communication sent to consumer is exempt from the FDCPA’s disclosure requirements

A consumer in a state court collection action brought suit under the FDCPA contending that the debt collector’s response to the consumer’s motion to dismiss the state court case constituted a communication in violation of 15 U.S.C. § 1692e. The district court held that the response was a “formal pleading” under 15 U.S.C. § 1692e(11) that thus need not contain the disclosures required in other communications. Because the consumer was not entitled to receive the disclosure she did not suffer an injury in fact for standing purposes.

The claim at issue in Lambe v. Allgate Fin., LLC, No. 16-CV-24407(S.D. Fla. July 20, 2017) was based on a provision of the FDPCA which requires the debt collector to disclose in subsequent communications that the communication is from a debt collector, “except that this paragraph shall not apply to a formal pleading made in connection with a legal action.”15 U.S.C. § 1692e(11). The response to the motion to dismiss filed by the debt collector in the state court did not contain this disclaimer. The consumer alleged that her statutorily conferred right to a disclosure was violated and that she therefore has “informational standing.”

The district court disagreed. A motion to dismiss is a formal pleading made in connection with a legal action and thus exempt under § 1692e(11). The court determined that under a dictionary definition and according to cases that have looked at what constitutes a “formal pleading”, a motion to dismiss is a formal pleading. Black’s Law Dictionary defines a pleading as “[a] formal document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or responds to allegations, claims, denials, or defenses.” And although Black’s Law Dictionary states that the main pleadings in federal procedure are the complaint and the answer, it also implies that motions to dismiss and responses are pleadings, as well.

In addition, other courts have characterized similar types of documents as formal pleadings under this provision, such as notices of appearance and motions to revive judgment; a proofs of claim filed in a bankruptcy proceeding; affidavits attached to warrants in debt; and sworn affidavits attached to a civil warrants. “Given [these] examples, [the] Court cannot fathom how a response to a motion to dismiss could be considered anything but a formal pleading.”

So while a violation of the FDCPA’s disclosure requirement can confer “informational standing”, there can be no violation—and thus no injury—if the document at issue falls under this exception. Otherwise, the consumer would be alleging that the debt collector violated the FDCPA by not disclosing information she was not, in fact, entitled to receive. Plaintiff therefore lacked standing.

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