On Tuesday, May 25, 2021, Preferred Collection and Management Services, Inc. (“Preferred”) filed its Petition for Rehearing and for Rehearing En Banc in the matter Hunstein v. Preferred, No. 19-14494-HH (11th Cir. April 21, 2021) (as corrected May 5, 2021), petition for reh’g filed May 25, 2021.
Plaintiff initially filed suit against Preferred April 24, 2019, alleging violations of the Fair Debt Collections Practices Act (FDCPA) and Florida law with regard to Preferred’s attempts to collect on a debt owed by Plaintiff. Specifically, Plaintiff argued that Preferred’s transmittal of debt collection data to a mail vendor for the sole purpose of preparing and mailing the letter to Plaintiff violated the FDCPA and state law.
Preferred moved to dismiss Plaintiff’s Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, which motion the district court granted October 29, 2019. Plaintiff appealed and the Eleventh Circuit Court of Appeals issued an opinion April 21, 2021, reversing the district court and remanding. Preferred filed for rehearing Tuesday, May 25, 2021.
In its Petition for Rehearing, Preferred argues the Circuit Court misinterpreted 11th Circuit and Supreme Court precedent by holding that, despite Plaintiff not suffering any tangible harm or risk, he nonetheless suffered a concrete harm in light of the close relationship between 15 U.S.C § 1692c(b) and the common law tort of public disclosure of private facts. Preferred argued in its Petition for Rehearing that this conclusion by the Court was not in-line with precedent. Preferred further argued that the Court failed to consider whether the injury was “particularized” or “personal” to the Plaintiff. Instead, as Preferred notes in its brief, the Court actually expressed doubt the alleged “harm” occurred or was likely to occur.
Preferred further emphasizes that the Circuit Panel failed to examine whether Plaintiff’s claims were of the type that bore any relationship to a harm protected at common law—which Preferred argues they are not. In support, Preferred noted the difference in the electronic transmission of information to private server of an agent of Preferred and the common law tort of public disclosure because such transmission is not “public.” Preferred maintains that such a transmission would not be highly offensive to a reasonable person and that “invasion of privacy” is not one of the enumerated purposes of the FDCPA.
Finally, Preferred asserted in its Petition for Rehearing that the Court’s conclusion that the use of third-party vendor violated the FDCPA was unsupported by (1) the text of the FDCPA, which references telegrams, thereby recognizing the ministerial use of third-parties in order to facilitate non-abusive communications with a consumer; (2) prior similar case law in other jurisdictions; and (3) the Consumer Finance Protection Bureau’s recognition of the use of this type of letter vendor in its forthcoming amendments.
More information on this matter will be forthcoming. Check The Rudnicki Firm’s online alerts to monitor the Court’s decision with regard to rehearing and any additional information on this case.