          Case: 15-15708   Date Filed: 07/06/2016    Page: 1 of 10


                                                           [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-15708
                      ________________________

                 D.C. Docket No. 1:14-cv-00057-WS-B




MAHALA A. CHURCH,

                                               Plaintiff - Appellant,


                                 versus


ACCRETIVE HEALTH, INC.,

                                               Defendant - Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Alabama
                      ________________________

                              (July 6, 2016)
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Before ED CARNES, Chief Judge, DUBINA, Circuit Judge, and HUCK,∗ District
Judge.

PER CURIAM:

       Appellant, Ms. Mahala Church (“Church”), filed a putative class action

against Appellee, Accretive Health, Inc. (“Accretive Health”) alleging violations of

the Fair Debt Collections Practices Act (“FDCPA” or “the Act”). Accretive Health,

working for Providence Hospital (“the Hospital”), sent Church a letter advising her

that she owed a debt to the Hospital. Church alleges Accretive Health violated the

FDCPA by not including in its letter certain disclosures required by the Act.

Church does not allege that she suffered actual damages from Accretive Health’s

failure to include the allegedly required disclosures. Rather, Church simply alleges

that upon receiving the letter in question, she “was very angry” and “cried a lot.”

       This appeal stems from the district court’s grant of summary judgment in

favor of Accretive Health. The sole issue raised at summary judgment was

whether, at the time the debt at issue was obtained by Accretive Health, the debt

was in default, as contemplated by the FDCPA. The FDCPA applies only to “debt

collectors.” See 15 U.S.C. § 1692k; Lodge v. Kondaur Capital Corp., 750 F.3d

1263, 1273(11th Cir. 2014). The Act expressly excludes from the definition of

“debt collector” any third party collecting a debt that is not in default at the time it


∗
 Honorable Paul C. Huck, United States District Judge for the Southern District of Florida,
sitting by designation.
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was obtained by the third party. Specifically, the Act exempts, “any person

collecting or attempting to collect any debt owed or due or asserted to be owed or

due another to the extent such activity . . . concerns a debt which was not in default

at the time it was obtained by such person.” 15 U.S.C. § 1692a(6)(F). Thus, if the

debt at issue was not in default at the time it was obtained by a third party agency,

the agency’s efforts to collect that debt are not governed by the FDCPA, and the

FDCPA-mandated disclosures would not be required. Unfortunately, the Act does

not define the term “default.”

      Accretive Health argued below that Church’s debt was not in default at the

time it obtained the debt from the Hospital, and thus, the FDCPA does not govern

the letter sent to Church. The district court agreed and granted Accretive Health’s

motion for summary judgment. Church challenges the district court’s

determination that the debt was not in default and invites the Court to hold that a

debt can be in default before a debtor is ever asked to pay a balance. We decline

such invitation.

      Before addressing the merits of the motion for summary judgment, the Court

addresses the standing issue, raised for the first time by Accretive Health in its

Notice of Pertinent Supplemental Authority (“Notice”), filed on May 27, 2016,

shortly before oral argument.




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      I.     STANDING

      Accretive Health’s supplemental authority consisted of a recent Supreme

Court opinion, Spokeo, Inc. v. Robins, 578 U.S. ___, 136 S. Ct. 1540 (2016),

addressing standing’s injury-in-fact requirement. In its Notice, Accretive Health

argues that Church’s injury is not sufficiently concrete to support Article III

standing because Church incurred no actual damages from Accretive Health’s

violation of the FDCPA. Church responded that the Court should not consider the

standing issue because Accretive Health did not raise it earlier and that a violation

of a procedural right granted by statute can be sufficient in some circumstances to

constitute injury-in-fact.

      Article III of the United States Constitution limits federal court jurisdiction

to actual cases and controversies. See U.S. Const. art. 3, § 2; Cone Corp. v. Fla.

Dep’t of Trasnsp., 921 F.2d 1190, 1204 (11th Cir. 1991). “The standing doctrine is

an aspect of this case or controversy requirement and has its origins in ‘both

constitutional limitations on federal-court jurisdiction and prudential limitations on

its exercise.’” Id. (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).

Accordingly, “standing is a jurisdictional threshold question which must be

addressed prior to and independent of the merits of a party’s claims.” DiMaio v.

Democratic Nat’l Comm., 520 F.3d 1299, 1301 (11th Cir. 2008); see also Stalley

ex rel. United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232


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(11th Cir. 2008). “‘Questions of subject matter jurisdiction may be raised . . . at

any time during the pendency of proceedings.”’ Ingram v. CSX Transp., Inc., 146

F.3d 858, 861 (11th Cir. 1998) (quoting United States v. Ayarza-Garcia, 819 F.2d

1043, 1048 (11th Cir. 1987). Indeed, “we are obliged to consider standing sua

sponte even if the parties have not raised the issue.” AT&T Mobility, LLC v. Nat’l

Ass’n for Stock Car Auto Racing, Inc., 494 F.3d 1356, 1360 (11th Cir. 2007). Thus,

although Accretive Health failed to raise its standing argument below, the Court

addresses it to ensure Church has standing.

      In Spokeo, the Court vacated and remanded the Ninth Circuit’s opinion,

instructing the Ninth Circuit to consider whether the Plaintiff’s injury was

sufficiently concrete to satisfy Article III’s injury-in-fact requirement. 578 U.S. at

___, 136 S. Ct. at 1550. In Spokeo, the plaintiff alleged a violation of the Fair

Credit Reporting Act (“FCRA”). Id. at 1544. Reversing the district court’s

dismissal for lack of standing, the Ninth Circuit noted that “the violation of a

statutory right is usually a sufficient injury in fact to confer standing,” but

recognized that “the Constitution limits the power of Congress to confer standing.”

Robins v. Spokeo, 742 F.3d 409, 413 (9th Cir. 2014). The Ninth Circuit held that

the plaintiff adequately alleged injury-in-fact because the plaintiff alleged the

defendant “violated his statutory rights, not just the statutory rights of other

people” Id. at 413–14. The Supreme Court, however, observed that the Ninth


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Circuit’s analysis reached only whether the plaintiff’s injury was particularized,

not whether the injury was concrete. Spokeo, 578 U.S. at ___, 136 S. Ct. at 1550.

      In its analysis, the Supreme Court explained that “[i]t is settled that Congress

cannot erase Article III’s standing requirements by statutorily granting the right to

sue to a plaintiff who would not otherwise have standing.” Id. at 1547–48. The

Court stated that to “establish injury in fact, a plaintiff must show that he or she

suffered ‘an invasion of a legally protected interest’ that is ‘concrete and

particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. at

1548 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

Regarding the concrete requirement, the Court stated that a “‘concrete’ injury must

be ‘de facto’; that is, it must actually exist.” Id. The Court explained that the term

“concrete” means “‘real,’ and not ‘abstract.’” Id. Yet, the Court also noted that an

injury need not be tangible to be concrete and reiterated that “Congress may

‘elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that

were previously inadequate in law.’” Id. at 1549 (quoting Lujan, 504 U.S. at 578).

Thus, “the violation of a procedural right granted by statute can be sufficient in

some circumstances to constitute injury in fact.” Id. The Court added that the “risk

of real harm” could mean “the violation of a procedural right granted by statute can

be sufficient in some circumstances to constitute injury in fact” and in such




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circumstances, “a plaintiff . . . need not allege any additional harm beyond the one

Congress has identified.” Id. (emphasis in original).

      An injury-in-fact, as required by Article III, “may exist solely by virtue of

statutes creating legal rights, the invasion of which creates standing . . . .” Havens

Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982); see also Palm Beach Golf

Ctr.-Boca, Inc. v. Sarris, D.D.S., P.A., 781 F.3d 1245, 1251 (11th Cir. 2015)

(stating same). In Havens Realty, the Court addressed, inter alia, whether a tester-

plaintiff had sufficiently alleged injury-in-fact to assert a violation of the Fair

Housing Act. 455 U.S. at 372–73. The tester-plaintiff, an African American,

alleged the defendant falsely told her that it had no apartments available for rent on

four occasions, while the defendant, each time, told a white tester that it did have

apartments available for rent. Id. at 368. The tester-plaintiff did not intend to rent

an apartment, and was merely posing as a renter to collect evidence of unlawful

steering practices. Id. at 373. Thus, the only injury alleged by the tester-plaintiff

was that she was given false information, in violation of the Fair Housing Act. Id.

at 373–74. The Court stated that the Fair Housing Act “establishes an enforceable

right to truthful information concerning the availability of housing” and that “[a]

tester who has been the object of a misrepresentation made unlawful under [the

Fair Housing Act] has suffered injury in precisely the form the statute was intended

to guard against, and therefore has standing to maintain a claim for damages under


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the Act’s provisions.” Id. The Court explained that the fact the tester never

intended to rent the apartment “does not negate the simple fact of injury within the

meaning of [the Fair Housing Act].” Id. at 374. Thus, the Court held that the tester-

plaintiff “alleged injury to her statutorily created right to truthful housing

information” and satisfied Article III’s injury-in-fact requirement. Id.

          Just as the tester-plaintiff had alleged injury to her statutorily-created right to

truthful housing information, so too has Church alleged injury to her statutorily-

created right to information pursuant to the FDCPA. The FDCPA creates a private

right of action, which Church seeks to enforce. The Act requires that debt

collectors include certain disclosures in an initial communication with a debtor, or

within five days of such communication. See 15 U.S.C. § 1692e(11); 1692g(a)(1)–

(5).1 The FDCPA authorizes an aggrieved debtor to file suit for a debt collector’s

1
    Specifically, § 1692e(11) states:

          The failure to disclose in the initial written communication with the consumer
          and, in addition, if the initial communication with the consumer is oral, in that
          initial oral communication, that the debt collector is attempting to collect a debt
          and that any information obtained will be used for that purpose, and the failure 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.

And § 1692g(a) states:

          Within five days after the initial communication with a consumer in connection
          with the collection 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 containing—


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failure to comply with the Act. See 15 U.S.C. § 1692k(a) (“[A]ny debt collector

who fails to comply with any provision of this subchapter with respect to any

person is liable to such person . . . .”) Thus, through the FDCPA, Congress has

created a new right—the right to receive the required disclosures in

communications governed by the FDCPA—and a new injury—not receiving such

disclosures.

      It is undisputed that the letter Accretive Health sent to Church did not

contain all of the FDCPA’s required disclosures. Church has alleged that the

FDCPA governs the letter at issue, and thus, alleges she had a right to receive the

FDCPA-required disclosures. Thus, Church has sufficiently alleged that she has

sustained a concrete—i.e., “real”—injury because she did not receive the allegedly

required disclosures. The invasion of Church’s right to receive the disclosures is

not hypothetical or uncertain; Church did not receive information to which she


      (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 verification of the debt or a copy of a judgment against the
      consumer and a copy of such verification or judgment will be mailed to the
      consumer by the debt collector; and
      (5) a statement that, upon the consumer's written 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.

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alleges she was entitled. While this injury may not have resulted in tangible

economic or physical harm that courts often expect, the Supreme Court has made

clear an injury need not be tangible to be concrete. See Spokeo, Inc., 578 U.S. at

___, 136 S. Ct. at 1549; Havens Realty Corp., 455 U.S. at 373. Rather, this injury

is one that Congress has elevated to the status of a legally cognizable injury

through the FDCPA.2 Accordingly, Church has sufficiently alleged that she

suffered a concrete injury, and thus, satisfies the injury-in-fact requirement.3

       II.     REVIEW OF THE DISTRICT COURT’S ORDER

       Satisfied this case is properly before the Court, we now turn to the merits of

the appeal. After reviewing the record, the parties’ briefs, and applicable law, we

affirm and adopt the district court’s well-reasoned opinion granting summary

judgment in favor of Accretive Health, filed November 24, 2015. The debt at issue

was not in default at the time Accretive Health obtained the debt, and thus, the

FDCPA does not govern Accretive Health’s letter to Church.


       AFFIRMED.


2
  In Spokeo, the Court stated that a Plaintiff “cannot satisfy the demands of Article III by alleging
a bare procedural violation.” Spokeo, 136 S. Ct. at 1550. This statement is inapplicable to the
allegations at hand, because Church has not alleged a procedural violation. Rather, Congress
provided Church with a substantive right to receive certain disclosures and Church has alleged
that Accretive Health violated that substantive right.
3
  The Court limits this discussion to injury-in-fact’s “concrete” requirement because this is the
only aspect of standing that Accretive Health has challenged. As the Court must, we have
independently analyzed all other elements of standing and have concluded this case is properly
before the Court.
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