Date: 03-24-2023

Case Style:

Carl Ward v. NPAS, Inc.

Case Number: 3:12-CV-484

Judge: Aleta Arthur Trauger

Court: United States District Court for the Middle District of Tennessee (Davidson County)

Plaintiff's Attorney:

Defendant's Attorney: Scott J. Dickenson and Megan D. Meadows

Description: Nashville, Tennessee consumer credit lawyer represented Plaintiff who sued Defendant on a Fair Debt Collection Practice Act violation theory.

e. Carl Ward sued NPAS, Inc. under the Fair Debt Collection Practices Act (FDCPA). A previous panel of this court found that Ward did not have Article III standing to bring his claims. On remand, Ward amended his complaint and added documents to the record to show he had suffered a concrete harm. The district court concluded that those
changes were sufficient to demonstrate Ward’s standing but that Ward could not prevail on the merits because NPAS, Inc. is not a debt collector in the meaning of the FDCPA.

Ward received medical treatment at Stonecrest Medical Center on two separate
occasions: once in July 2018 and again in October 2018. Each time, he signed a Conditions of
Admission agreement which stated that Ward was financially responsible for any charges not
covered by insurance and that Stonecrest may “utilize the services of a third party Business
Associate or affiliated entity as an extended business office (‘EBO Servicer’) for medical
account billing and servicing.” The agreement also stated that “[d]uring the time that the
medical account is being serviced by the EBO Servicer, the account shall not be considered
delinquent, past due or in default.” In fact, the account could only be in default once the EBO
servicer returned the account to Stonecrest; upon return, Stonecrest could then “determine the
account to be delinquent, past due, and in default” and the account could be “subject to late fees,
interest as stated, referral to a collection agency for collection as a delinquent account, credit
bureau reporting and enforcement by legal proceedings.” At his deposition, Ward confirmed that
he received and signed the Conditions of Admission both times he was treated at Stonecrest.
After each treatment, Stonecrest sent Ward an initial bill for the $80 Ward owed, after
insurance, for each visit.1

These bills were due “upon receipt.” After Ward did not pay the
initial bills from Stonecrest, Stonecrest referred Ward’s accounts to a third party for servicing on
October 3, 2018 and December 22, 2018, respectively. That third party was NPAS, Inc.
(Stonecrest’s “Extended Business Office Servicer”). NPAS then contacted Ward for payment.
In total, NPAS mailed Ward four statements and left him three voicemail messages. The
statements included a due date, which was ten to fifteen days after the statement date, as well as
a Frequently Asked Questions section that included an explanation of NPAS’s role: “Q: Who is
NPAS, Inc.? A: NPAS, Inc. is a company that is managing your account for the healthcare
provider.” In each voicemail it left for Ward, NPAS, Inc. identified itself only as “NPAS” (not
“NPAS, Inc.”)

After receiving two voicemail messages, Ward contacted a law firm. The firm attempted
to send NPAS a cease-and-desist letter on February 7, 2019. But the firm erroneously sent the
letter to NPAS Solutions, a company unrelated to NPAS, Inc., so NPAS never got the letter.
Ward received a third voicemail from NPAS on March 14, 2019.
Ward sued NPAS in June of 2019, alleging that NPAS had violated the FDCPA by not
meaningfully disclosing its identity as a debt collector, see 15 U.S.C. § 1692d(6); by using a
name other than its “true name” (NPAS instead of NPAS, Inc.) in the voicemails, see
§ 1692e(14); and by calling him after he attempted to send a cease-and-desist letter, see
§ 1692c(a)(2) & (c).2
After the close of discovery, the district court granted NPAS’s motion for
summary judgment on the ground that NPAS did not qualify as a “debt collector” under the
FDCPA.

* * *

To establish standing, Ward must show (i) that he suffered an injury in fact; (ii) that was
likely caused by the defendant; and (iii) that would likely be redressed by judicial relief.
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (citing Lujan v. Defs. of Wildlife, 504
U.S. 555, 560–561 (1992)). An Article III injury, in turn, requires the “invasion of a legally
protected interest which is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal citations and quotation marks
omitted). Ward, as the “party invoking federal jurisdiction[,] bears the burden of establishing”
all three elements, id. at 561, though the parties agree that Ward’s standing rises and falls with
the first element, concrete injury.

“Ward does not automatically have standing simply because Congress authorizes a plaintiff to sue a debt collector for failing to Because the intrusion caused by unwanted phone calls bears a “close relationship” to the
kind of harm that the common law sought to protect, it does not matter that the volume of such
calls “may be too minor an annoyance to be actionable at common law.” Gadelhak, 950 F.3d at
462–63, 463 n.2 (citation omitted). Congress may choose to “elevat[e] to the status of legally
cognizable injuries concrete, de facto injuries that were previously inadequate in law.” Spokeo,
578 U.S. at 341 (citation omitted). So Ward’s one unwanted phone call is injury enough. Our
sister circuits, when assessing injury-in-fact under the Telephone Consumer Protection Act, have
largely agreed. See Gadelhak, 950 F.3d at 463 (five unwanted text messages sufficient for an
Article III injury); Krakauer, 925 F.3d at 652–54 (two phone calls in one year created a concrete
harm); Susinno, 862 F.3d at 351–52 (one unwanted phone call was a concrete harm); Melito, 923
F.3d at 93–94 (one unwanted text message was an Article III injury); Van Patten, 847 F.3d at
1042–43 (two unwanted text messages sufficient for Article III injury); Cranor v. 5 Star
Nutrition, LLC, 998 F.3d 686, 690–93 (5th Cir. 2021) (single unwanted text was an injury in
fact); but see Salcedo, 936 F.3d at 1173 (single unwanted text message too insignificant to create
an Article III injury). And the Tenth Circuit has followed suit in the context of the FDCPA.
Lupia, 8 F.4th at 1190–93 (single unwanted phone call created Article III standing under
FDCPA).comply with the FDCPA.” Ward I, 9 F.4th at 361. “Article III standing requires a concrete
injury even in the context of a statutory violation.” Spokeo, Inc. v. Robins, 578 U.S. 330, 341
(2016). So Ward cannot “allege a bare procedural violation” of the FDCPA, “divorced from any
concrete harm, and satisfy the injury-in-fact requirement of Article III.” Id. Instead, “Ward
must show either that the procedural harm itself is a concrete injury of the sort traditionally
recognized or that the procedural violations caused an independent concrete injury.” Ward I,
9 F.4th at 361. The “most obvious” kind of concrete harms are “traditional tangible harms, such
as physical harms and monetary harms.” TransUnion, 141 S. Ct. at 2204. But intangible harms
can also be concrete. Id. The Supreme Court has counseled that “[c]hief among” these
intangible concrete harms “are injuries with a close relationship to harms traditionally recognized
as providing a basis for lawsuits in American courts,” including “intrusion upon seclusion.” Id.
(citing Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 462 (7th Cir. 2020) (Barrett, J.)). When
such harms exist, Congress may “elevat[e]” them “to the status of legally cognizable injuries,”
even if those injuries “were previously inadequate in law.” Spokeo, 578 U.S. at 341 (citation
omitted).

Ward relies on intrusion upon seclusion to show his concrete harm. The common law
tort by that name “generally requires a plaintiff to demonstrate that a defendant ‘intentionally
intrude[d], physically or otherwise, upon the solitude or seclusion of another or his privacy
affairs or concerns.’” Ward I, 9 F.4th at 362 (quoting Restatement (Second) of Torts § 652B
(Am. L. Inst. 1977)). Unwanted phone calls are the “type of intrusive invasion of privacy” that
this tort seeks to prevent. Gadelhak, 950 F.3d at 462; see also Lupia v. Medicredit, Inc., 8 F.4th
1184, 1191–92 (10th Cir. 2021) (unwanted “phone call poses the same kind of harm recognized
at common law—an unwanted intrusion into a plaintiff’s peace and quiet” (emphasis omitted));
Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 653–54 (4th Cir. 2019) (unwanted phone calls
are among the “types of harms protected at common law”); Susinno v. Work Out World Inc.,
862 F.3d 346, 351–52 (3d Cir. 2017) (unwanted phone call “was of the same character” as
intrusion upon seclusion); Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85, 93 (2d Cir. 2019)
(harm from unwanted telemarketing text messages is “of the same character” as “invasions of
privacy, intrusion upon seclusion, and nuisance” (quoting Van Patten v. Vertical Fitness Grp.,
LLC, 847 F.3d 1037, 1043 (9th Cir. 2017)).

It is true that tort liability typically lies only when “telephone calls are repeated with such
persistence and frequency as to amount to a course of hounding the plaintiff.” Gadelhak, 950
F.3d at 462 (quoting Restatement § 652B cmt. d and collecting cases); see also Salcedo v.
Hanna, 936 F.3d 1162, 1171 (11th Cir. 2019); Susinno, 862 F.3d at 351–52. So the single
unwanted phone call Ward offers would not likely show the “substantial” and “strongly
object[ionable]” intrusion upon his privacy that would make NPAS liable to him under the
common law. See Salcedo, 936 F.3d at 1171 (quoting Restatement § 652B cmt. d). But that is
not our question. In assessing Article III injuries, Spokeo tells us to look for a harm with a close
relationship “in kind, not degree” to common law harms. Gadelhak, 950 F.3d at 462 (citing
Spokeo, 578 U.S. at 341); see also id. at 463 n.2 (“the number of texts is irrelevant to the injuryin-fact analysis”); Perez v. McCreary, Veselka, Bragg & Allen, P.C., 45 F.4th 816, 822 (5th Cir.

2022) (focus is not on “level of harm” but whether harm “is similar in kind to a type of harm that

Outcome: Dismissal affirmed on appeal.

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