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Hunstein on Rehearing – Revisiting Article III Standing in the Eleventh Circuit

  • Written by Eve Cann and Jonathan Green
  • Category: Feature Stories

On April 21, 2021, the Eleventh Circuit Court of Appeals issued its decision in Richard Hunstein v. Preferred Collection and Management Services, Inc., and potentially created a new claim under the Fair Debt Collection Practices Act (FDCPA) – ruling that a debt collector's sharing of information with a vendor is a violation of that statute, specifically of 15 U.S.C. §1692c(b). The debt collector has now moved for rehearing en banc of the Court's decision, arguing that the ruling is contrary to both the U.S. Supreme Court's 2016 ruling in Spokeo, Inc. v. Robins, and multiple prior decisions of the Eleventh Circuit.


The underlying facts are simple. A creditor referred a medical debt to a debt collector. The debt collector used a third-party mail vendor to send a dunning letter to the debtor. In doing so, certain information was conveyed, including (1) the debtor's status as a debtor, (2) the balance of the debt, (3) the entity to which the debt was owed, (4) that the debt concerned medical treatment for the debtor's son, and (5) the name of his son. The debtor sued, and the district court dismissed the suit. The debtor appealed.


As an initial matter, the Eleventh Circuit examined standing under Spokeo, Inc. v. Robins. In examining the facts, the Court found that the debtor, Richard Hunstein, could not establish standing through either tangible harm or a risk of real harm. Nevertheless, the Eleventh Circuit found that a concrete injury existed sufficient to provide Article III standing, due to the invasion of Hunstein's privacy. The Court found that FDCPA plaintiffs are not limited to those individuals with actual damages, particularly where the statutory language addresses the very harm alleged by the debtor in the instant case.

Preferred, the debt collector, has now sought en banc review of the Court's decision, requesting to have the full Eleventh Circuit consider the issues presented to avoid what it argues is an intra-circuit split. In its petition for rehearing en banc, filed on May 25, 2021, Preferred asserts three main points in support of its overarching argument that the Court erred in finding that Hunstein had Article III standing to bring this claim: (1) the Court's decision deviated from established Eleventh Circuit precedent; (2) Preferred's conduct does not constitute "public" disclosure; and (3) the electronic transmission of the data to Preferred's mail vendor is not a harm that Congress has identified.

Preferred outlines each of its primary arguments in turn. It argues that Spokeo confirmed that Article III standing requires a concrete injury, and that on three separate occasions, the Eleventh Circuit determined that a statutory injury alone did not give rise to a concrete injury sufficient to confer standing. In Nicklaw v. CitiMortgage, the Court reinforced the common law tradition of "no harm, no foul." In Trichell v. Midland Credit Management, Inc., the Court found that the "serious harms" to which the FDCPA was directed were a "far cry from whatever injury may suffer from receiving in the mail a misleading communication that fails to mislead." Finally, in Muransky v. Godiva Chocolatier, Inc., the Eleventh Circuit sitting en banc vacated a district court's order, finding that the plaintiff in that case had no Article III standing because he had suffered no harm; the Court went on to state that it interpreted "concrete" to mean "real" in measuring an injury necessary for establishing Article III standing. Indeed, the Hunstein decision is contrary to a number of other decisions on Article III standing that were favorable to defendants and could mark a shift in how the Eleventh Circuit views the issue. Preferred notes that in reaching its decision in the instant case, the Court did not analyze whether Hunstein's injury was particularized or personal, and in fact, explicitly expressed doubt that the harm occurred or even would likely occur.

Preferred also argues that the challenged conduct does not constitute public disclosure, and that the Court failed to consider whether the specific allegations raised by Hunstein were of the type typically protected by the courts. It asserts that the panel did not examine whether Hunstein's assertions were the type that had any relationship to a harm protected at common law, and further surmises that on their face, there is no connection between the type of electronic transmission of data to a private server maintained by an agent of the debt collector and the tort of "public disclosure of private facts." Preferred further articulates the perfunctory and ministerial transmittal of the data at issue and points out it was done for a specific and singular purpose – to send Hunstein a letter that only he (the consumer) would see.

In this same vein, Preferred argues that this type of electronic transmission does not implicate a harm that Congress has identified. Preferred submits that the purpose of the FDCPA is to prohibit abusive debt collection practices, without imposing unnecessary restrictions on ethical debt collectors. In support of this third argument, Preferred raises three points: (1) the ministerial use of "third-party" agents is an acceptable method of communications with consumer, such as the use of telegrams, which is specifically contemplated by the FDCPA; (2) the Colorado Supreme Court has specifically held that use of letter vendors presents no harm to consumers, and that such use did not violate the state equivalent of §1692c(b); and (3) the CFPB found no consumer injury in the use of letter vendors, specifically in relation to seeming acceptance without objection of this common practice in the forthcoming amendments to Regulation F, which implements the FDCPA.

However, Preffered's efforts to overturn the decision are hampered by a significant issue: Preferred has admitted that the transfer of information to its mail vendor constituted a communication under the FDCPA. Nevertheless, Preferred makes several compelling arguments as to why the panel decision should be reconsidered by the Court en banc, the most compelling of which is the potential for an intra-circuit split on what constitutes concrete injury sufficient to confer Article III standing under Spokeo and prior decisions of the Eleventh Circuit.

The Court will now likely receive amicus briefs from others in the debt collection industry and other industries that could be substantially impacted should the original decision remain unchanged.

Moreover, although unspoken in the petition, the Eleventh Circuit panel had recognized that its ruling "runs the risk of upsetting the status quo in the debt-collection industry," and may require debt collectors to bring in-house services that were previously referred out to vendors. Indeed, the potential disruption of companies handling their own mailings may ultimately lead to more errors and increased consumer harm as companies seek to replicate the expertise of mail vendors. The importance of this decision may lead the Court to grant en banc review and potentially short circuit the flood of litigation that has arisen in the wake of the Hunstein decision.

A response to the petition for rehearing en banc is not permitted unless specifically requested by the Court, and a briefing schedule will issue should the rehearing en banc be granted.

While the rehearing petition remains pending, and unless the Court grants the request for an en banc rehearing, the Court's original decision of April 26, 2021 remains in place. This decision has broad-reaching impact, as it is not limited to debt collectors (in the traditional sense) and their law firms, but also has the potential to implicate banks, mortgage servicers, and other financial services companies, as these types of entities have been held by courts across the country to be "debt collectors" under certain circumstances. This decision may have a chilling effect on the use of third-party vendors by these companies.

Eve A. Cann is a shareholder in Baker Donelson’s Fort Lauderdale office and a member of the firm’s financial services group. She represents clients against claims of violations of federal and state consumer protection statutes, for violations of the Telephone Consumer Protection Act (TCPA), for violations of the Fair Debt Collection Practices Act (FDCPA) and its Florida-law equivalent, and for violations of the Real Estate Settlement Procedures Act (RESPA). She can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.. 

Jonathan E. Green, a shareholder in the firm’s Atlanta office, is an experienced trial lawyer who has substantial experience representing financial services companies. His experience includes mortgage servicing issues, lender liability defense and federal consumer protection laws. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.. 

Do-It-Yourself Credit Repair

  • Written by T. Steel Rose
  • Category: Feature Stories

When working with consumers, it can be helpful to develop a good rapport by advising them how to get their credit back on track. Here are five steps you can suggest to help them.

Step One: Go to and get all three bureau credit reports once a year for free.

Step Two: Review all three credit reports and then remove negative information that is inaccurate, incomplete, or unverifiable.

Step Three: Work on the items "most damaging" to "least damaging" in this order: bankruptcy, foreclosure, repossession, loan default, court judgments, collections, past due payments, late payments, credit rejections and credit inquiries

Step Four: Mail certified dispute letters or Use the online disputing service provided by the credit bureaus or

Step Five: Wait 45 days, and repeat the process if necessary, at least annually. If a credit bureau cannot verify information on your credit report within the time allowed by law, they must remove it.

Remember: Anything a credit repair company can do, you can do for yourself for free.

DBA's New Identity Represents All Memeber Groups

  • Written by T. Steel Rose
  • Category: Feature Stories

rose steelDBA International completed its 20th annual conference in February and changed its name to RMA, Receivables Management Association. Collection Advisor caught up with Executive Director Jan Stieger to learn more about the changes taking place at RMA.

“The name change recognizes our members and our certifications,” Stieger said. “We have law firms, agencies and international members, many of whom are working with debt buyers. The members agreed on the name change.”

RMA represents 548 companies who purchase performing and nonperforming receivables on the secondary market. Its Receivables Management Certification Program and Code of Ethics is designed to set the global standard within the receivables industry due to its rigorous uniform industry standards of best practice which focus on the protection of the consumer according to its website. The association was founded in 1997 as Debt Buyers Association and is headquartered in Sacramento, California.

The challenge is optimism and hope for fair and balanced regulation for the professional, ethical collection of legitimate debt. “We have conversations with clients who may be selling debt again,” Stieger said.

Newly elected association President Mark Naiman announced the new name as part of a change in the association bylaws during the association’s annual conference. “We started as the Debt Buyers’ Association with our membership being primarily debt buyers,” Naiman said. “Our membership has now expanded and also includes collection law firms, collection agencies, creditors, vendors, and brokers. Our goal was to represent all of our member groups.”

The association took prudent steps to explore a variety of options for its new identity. The association will gradually roll out the new branding over the remainder of the year. Those wishing to contact RMA can still use the website and email addresses of DBA International.

The growing variety of membership is due in part to the association’s certification program, which is available for debt buyers, collection law firms, collection agencies and now, brokers. It was launched in 2013.

“Our certifications are for members and non-members,” Stieger said. “The RMA advocacy is managed in house with a robust volunteer group in each state to make sure precedents are not set”

The certification has been obtained by 122 debt buying companies, 11 law firms and eight collection agencies. “There are 221 individuals certified,” Stieger reported. To qualify for a two-year certification, 24 education credits must be earned. Candidates repeat the ethics and current events test in addition to a background check every two years. “An individual can then get a firm certification based on how they operate,” according to Stieger. The certified company must have a chief compliance officer (CCO) with the name of the CCO on their website as the person affected consumers have to call. They also need a CFPB portal. “We are on version five of the certification,” Stieger said.

There are 14 standards to which every company must comply. Some are self-attested but RMA tests some standards. A background check is done on the firm owners. There is a compliance audit every three years which goes to RMA at the same time as it goes to the firm. “There is self audit, full audit and a limited compliance audit based on complaints,” Stieger said. Vendors are responsible for the behavior of their clients to maintain data security. “We have the most robust data security requirements and documentation orders from CFPB consent orders,” Stieger said. “They have to have a complete chain of title, will not sue on out of statute debt and can’t sell debts which are in dispute, especially identity theft,” Stieger continued. Many rules are stronger than state or federal requirements. “The commission must not be only on dollars collected,” Stieger said.

Plans for more certifications are currently in place. “Broker certification was just rolled out, and we are working international later,” Stieger stated. “We will go further into the organizations already certified.” The 24 credits are offered by RMA. There are also credits provided by others like NARCA, ACA and ten others. A certain number of the credits can be taken live such as the 17 credits offered at the DBA International convention. Credits may be earned at an executive summit in the summer and other events when new laws come out. There are also webinars and recorded events.

Supreme Court Case Explains Debt Buyers Are Not Debt Collectors Under FDCPA

  • Written by Collection Advisor
  • Category: Feature Stories

The Supreme Court unanimously ruled this week on an FDCPA case expected to have a major impact on debt buyers. The Court ruled that the FDCPA, enacted by Congress in 1977, does not apply to debt collection practices of a debt buyer who buys defaulted loans from a creditor.

The plaintiffs in the case of Henson v. Santander Consumer USA were four Maryland residents who defaulted on their auto loans. They sued Santander in 2012 for predatory collection practices including bypassing debtors' lawyers. But because Santander owned the debt and was servicing it, the court said Santander and companies like them couldn’t be sued under FDCPA.

The Citicorp auto loans was sold to Santander, a Dallas-based vehicle-financing and lending company owned in part by a subsidiary of Banco Santander (SAN.MC), the euro zone's second-largest bank by market value.

The 4th U.S. Circuit Court of Appeals in Richmond, Virginia threw out the lawsuit previously saying the law applied only to debt collectors, and Santander became a creditor when it purchased the loans.

The case hinged on the definitions of “creditor” and “debt collector” and whether a company that buys debt should be treated as a creditor and therefore not subject to the law.

Making a Debt Collection Resume Worthy of Attention

  • Written by Susan Burdan
  • Category: Feature Stories

burden susanIs your resume preventing you from being considered by not addressing how your previous experience makes you qualified for the position based upon the requirements set forth by the hiring entity? In today’s competitive market it is important to stand above the rest. As a professional looking for a job change you must clearly state an objective and summarize experience in the beginning of the resume. This includes even the most senior candidates. How else do you expect the reader to understand the message you are looking to convey? Resumes are broken down in separate sections and the structure might vary; however the overall premise is to list your achievements chronologically and honestly. But most important is to offer what you have achieved and what you would like to achieve in the future.

Let’s say you are a collections sales executive applying for a commercial sales role and have not worked in a business-to-business environment for several years. You need to initiate the resume with an attention grabber. It doesn’t even have to be elaborate. For example, you can simply state:

“15 years of collections sales experience in a consumer and commercial capacity looking to transition into a commercial sales role.”

An excellent opportunity to provide this information is in the objective or career summary portion of your resume. Providing this information tells the hiring manager you have what it takes to get the job done!

In essence, a resume is a like a personal advertisement and any good advertisement should be tailored to a specific audience. Honesty is equally important when creating a resume. Never claim that you are something you are not. In a personal ad, if you try to attract someone by stating you are athletic and like to climb mountains, you had better be prepared to strap on the climbing gear and prove it.

It works the same in the workplace. Don’t call yourself a “collection manager” if you have never managed a group of employees. If this is something you are striving towards, you can state you are a candidate with 10 years as a collector looking to step up into a management role.

There is also an importance for keeping a standard chronological format. This provides the reader with your most current position working down through the years. A resume that does not follow this progression can be misleading. I also advise candidates to realize they should not limit themselves to just one resume. You should adapt your resume for every role you apply for.

Accomplishments are another huge piece in the resume puzzle. I often see resume’s that read almost exactly as if they are a job description. It is crucial to not only list what you were tasked to do but to clearly state what you actually accomplished. I also ask for both quantitative and qualitative accomplishments. My question is, and the question you should ask yourself is, why should my client hire you?

Additionally, in the new landscape of prevailing social media, it is quite important to ensure your exposure on the Internet mimics your resume. If you are a director of collections, make sure that however it is stated on your resume is carried through to your LinkedIn profile. While we are on the subject of LinkedIn, it is necessary for you to make sure if you are in the job market that you don’t just list jobs, years and titles. Recruiters and hiring managers are looking for specific keywords that through an algorithm will pull up your resume/profile in their search. For example, let’s say you are a dialer administrator and you specialize in FACS/Artiva systems. If you state you are dialer administrator and do not have the specific words “FACS” or “Artiva” systems, you won’t be found by the individual searching those key words.

Another factor on LinkedIn is realizing that who you are connected to and the groups you belong to and are engaged with will also promote your exposure. If you are looking for your next dream job, join in discussions and connect with people with similar backgrounds, even if they are a “C” level with the competition. Don’t be shy to send a connection request or engage in conversation. This could really aid you in standing out above others.

Of course, working with an industry specific recruiter is a great way to offer you a window into potential new roles in your career path.

A quality resume is clear, concise and without error. By stating what job you are looking to achieve early on, you will entice the reader to focus on how your experience qualifies you for consideration. This will capture the hiring authority’s attention and get them to read on. After that, you can close with a great interview.

Susan Burden is an Executive Recruiter from Executive Alliance with 14 years of Recruiting for Collection Agencies, Collection Law firms, Creditors, Debt Buyers and the vendors who service the industry.