Christopher Gunn v. Thrasher, Buschmann & Voelkel ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3514
LINDA GUNN and CHRISTOPHER GUNN,
Plaintiffs-Appellants,
v.
THRASHER, BUSCHMANN & VOELKEL, P.C.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:19-cv-01385-JMS-MPB — Jane Magnus-Stinson, Chief Judge.
____________________
ARGUED MAY 19, 2020 — DECIDED DECEMBER 15, 2020
____________________
Before EASTERBROOK, BRENNAN, and ST. EVE, Circuit Judg-
es.
EASTERBROOK, Circuit Judge. Linda and Christopher Gunn
fell behind in paying assessments owed to their homeown-
ers’ association. When the debt reached about $2,000, the as-
sociation hired a law firm (Thrasher, Buschmann & Voelkel).
It sent the Gunns a leber demanding payment. One sentence
in this leber reads:
2 No. 19-3514
If Creditor has recorded a mechanic’s lien, covenants, mortgage,
or security agreement, it may seek to foreclose such mechanic’s
lien, covenants, mortgage, or security agreement.
This leber did not induce the Gunns to pay, and the law firm
filed suit in state court—but the remedy it sought was dam-
ages for breach of contract rather than foreclosure. The
Gunns replied with this suit under the Fair Debt Collection
Practices Act (FDCPA), part of which forbids false or mis-
leading statements in dunning lebers. 15 U.S.C. §1692e(2),
(4), (5) & (10). Although the Gunns acknowledge that the
leber’s statement is true both factually and legally, they con-
tend that it must be deemed false or misleading because the
law firm would have found it too costly to pursue foreclo-
sure to collect a $2,000 debt.
The district court dismissed the complaint on the plead-
ings, ruling that a true statement about the availability of le-
gal options cannot be condemned under the Act just because
the costs of collection may persuade a law firm to seek one
remedy (damages) rather than another (foreclosure). 2019
U.S. Dist. LEXIS 195718 (S.D. Ind. Nov. 12, 2019), reconsidera-
tion denied, 2019 U.S. Dist. LEXIS 219829 (S.D. Ind. Dec. 23,
2019).
The parties’ briefs in this court locked horns on the ques-
tion whether a true statement violates the statute when it
mentions a remedy that a creditor probably will not use. In
addition to supporting the district court’s legal analysis, the
law firm observes that sometimes creditors will take steps
that seem uneconomic when viewed by themselves but that
are necessary to make threats credible. In the language of
game theory, rational creditors pursue mixed strategies. The
Gunns do not offer any data showing that homeowners’ as-
No. 19-3514 3
sociations never seek foreclosure as a means to collect un-
paid assessments.
But we do not reach the merits. Like the district court’s
opinions, neither side’s brief mentions an antecedent ques-
tion: whether the complaint presents a case or controversy
within the scope of Article III. For neither the complaint nor
the plaintiffs’ brief explains how the contested sentence in-
jured the Gunns. They did not pay anything in response and
do not say that the sentence about foreclosure could have
reduced their credit rating. And the leber could not have
affected their ownership interest. That would require a fore-
closure judgment in state court—and, even after such a
judgment, owners may retain possession by paying the debt
and redeeming their property interests. We directed the par-
ties to file supplemental briefs addressing the question
whether plaintiffs have standing to sue. We directed their
abention to Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), and
Casillas v. Madison Avenue Associates, Inc., 926 F.3d 329 (7th
Cir. 2019), both of which hold that concrete harm is essential
to standing. Spokeo concerns the Fair Credit Reporting Act,
while Casillas concerns the same statute as the Gunns’ suit.
The Gunns’ main argument is that they were annoyed or
intimidated by the leber, which as a maber of law satisfies
the constitutional injury requirement. The principal decision
on which they rely is Gadelhak v. AT&T Services, Inc., 950 F.3d
458 (7th Cir. 2020). It does not help them. Gadelhak dealt with
uninvited and unintelligible text messages, which intruded
on the plaintiffs’ seclusion. Pestiferous text messages, spam
phone calls, and unwelcome faxes can cause cognizable inju-
ry, for the reasons we gave in Gadelhak when explaining how
the common law treats noises and other aggravating intru-
4 No. 19-3514
sions. Yet the Gunns do not contend that the law firm’s leber
was a forbidden invasion of privacy. They owned a home
and owed a debt; the association and its law firm were enti-
tled to communicate with them, no maber how unwelcome
the Gunns found the demand for payment. Their claim is
that legally sound language in an otherwise proper leber vi-
olated the Act. Nothing in Gadelhak implies that this has ever
been deemed a concrete injury.
Consider the upshot of an equation between annoyance
and injury. Many people are annoyed to learn that govern-
mental action may put endangered species at risk or cut
down an old-growth forest. Yet the Supreme Court has held
that, to litigate over such acts in federal court, the plaintiff
must show a concrete and particularized loss, not infuriation
or disgust. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992). Similarly many people are put out to discover that a
government has transferred property to a religious organiza-
tion, but Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464 (1982), holds
that a sense of indignation (= aggravated annoyance) is not
enough for standing. See also, e.g., Freedom from Religion
Foundation, Inc. v. Obama, 641 F.3d 803 (7th Cir. 2011) (no
standing to litigate about a presidential declaration of a day
of prayer, when the declaration vexes the plaintiff but does
not cause concrete loss).
Indeed, it is hard to imagine that anyone would file any
lawsuit without being annoyed (or worse). Litigation is cost-
ly for both the pocketbook and peace of mind. Few people
litigate for fun. Yet the Supreme Court has never thought
that having one’s nose out of joint and one’s dander up cre-
ates a case or controversy. No one can doubt that the plain-
No. 19-3514 5
tiff in Spokeo was sore annoyed. If that were enough, howev-
er, then the very fact that a suit had been filed would show
the existence of standing, and the need to have a concrete
injury that could be cured by a favorable judicial decision
would be abolished.
The Gunns make one additional argument: that Spokeo
and Casillas involved procedural rights, while their claim
arises under one of the Act’s substantive provisions. That’s
true enough, but it does not show that they have standing.
Article III of the Constitution does not distinguish procedur-
al from substantive claims; it makes injury essential to all lit-
igation in federal court. In Thole v. U.S. Bank N.A., 140 S. Ct.
1615 (2020), where the plaintiff asserted the violation of a
substantive right, the Supreme Court found no standing us-
ing the approach of Spokeo. And this court has recently held
that the asserted violation of a substantive right conferred by
the Fair Debt Collection Practices Act does not guarantee the
plaintiff’s standing. There must still be a concrete injury. See
Larkin v. Finance System of Green Bay, Inc., No. 18-3582 (7th
Cir. Dec. 14, 2020). See also Trichell v. Midland Credit Man-
agement, Inc., 964 F.3d 990 (11th Cir. 2020).
Because the Gunns do not contend that the contested sen-
tence in the defendant’s leber caused them any concrete
harm, the judgment of the district court is vacated and the
case remanded with instructions to dismiss for want of sub-
ject-maber jurisdiction.