about subject matter jurisdiction and it's surely one that you have anticipated because you've heard it before the question is how are your clients injured by the language in th injured it seems to me they could say well we paid a debt that we didn't know or this hurt our credit rating or i'm looking for an allegation of injury they received a statement which was frightening and intimidating the injury suffered here is the same injury that was suffered in ferretti a versus capital management you get a document which is meant to and does instill fear in that case of being reported to the internal revenue service here for closure and loss of when there was absolutely no intent to take such action as as you may know there are some longstanding doctrines that say you can't recover damages for emotional injury along when that's all there is  cannot claim that they paid in respect to something that they did not we know they didn't do that there was a later lawsuit for damages so obviously they didn't pay after they got the letter and small claim was filed a couple of months afterwards avenue associates it's somewhat surprising to receive the briefs from parties on a case like this with nobody paying any attention to whether there is an article three case or controversy i will consumers against and impose statutory damages for not doing it i think it is it is clear that there was no intent for close as your honor pointed out a small claim was filed a couple of months later instead they say that we represent that we intended to file a foreclosure we simply stated the water correctly and in any event the association could have decided at some later date to pursue such a remedy actually filed a few lawsuits so that they could say that they did that and the court of appeals had no difficulty stating that this is they were not performing a public service by informing people  if he or she does not pay that was the standard also adapted by d this court in the heredia case there the courts now the capital management the debt collector had within its knowledge all the conditional does not vitiate it's misleading nature the federal trade commission which brought the national financial case to the department of justice addressed this issue in its staff commentary and invite six perience and determine what is misleading and it states that a debt collector may state that certain action is passable only if it is frequently taken if you suspect a similar debts but if the debt collector h reason to know facts and make the action unlikely in the particular case a statement that the action was possible would be misleading here it's a small balance that the filing was not made there is it far as we can determine no history of firing foreclosures at all and it's a it's a very serious threat and it's a difference between a small claim seeking two thousand dollars and loss of one's  subsection four for purposes of appeal no your honor we're pursuing all of them but four is the one most directly one point since it's specifically says that implication as well as flappers representation is prohibited about taking people's property and phones are particularly impactful and inactive and specific regulation of such statements it's i think quite clear that court's issue a ruling that will instead of by debt collectors to provide less rather than more accurate information that kind of a ruling with undermine whether the miserable  judge jurisdiction is the st issue in every case and i'm a little surprised that you're going straight to the merits having heard me raise that question in this case i wish you would address it yes certainly think i have to admit that it had not occurred to us that there could be an article three issue here or an injury issue here but i think the court's point is well taken there may be a problem and a say i am stunned that a lawyer representing a debt collector would not have run across recent supreme court cases on this issue and quite a number of recent decisions by the th circuit addressing this issue including the one i issue here all right but we are certainly having to address it it is clear we need to have the parties address or we will direct the parties to file briefs addressing the question whether there is your case or controversy no dispute whatsoever that the statement contained in the firm's letter to the gun was one hundred percent accurate and truthful that is there is no dispute whatsoever that a homeowner association may seek foreclosure as a remedy under any and a law that has recorded a link in fact the indiana code specifically provides for such a remedy at section thirty two dash twenty eight that's fourteen dash eight the issue before the courts in terms of the merits of the case is whether the law firm violated the fair debt collection practices act by merely stating that its client may seek for closure under this court's titled case law the clear answer is no as did all of the recent had you seen a would you agree that under this section of the fair debt collection practices act that if your client never intended to file foreclosure that the plaintiffs have stated a claim assuming there's standing and subject matter jurisdiction not in this case your honor no for this reason the law firm does not get to make the decision on its own as to whether foreclosure may be sought as a remedy and even if it were the case hypothetically that at the time the letter was sent that the homeowners association did not intend to seek foreclosure that is a static that is not a static concept that is a fluid thing intends to take such action as opposed to might take it in the future because the the test is whether the statement is false or misleading and we know it's not false and it's not misleading because the debt i'm sorry the credit for it could have very well decide that it wants to in fact take that rent and in fact is this court said in her radio i'm quoting it is permissible for a creditor to make a major statement if there is any possibility that an event might happen and her radio of course is very different because there was no conceivable scenario very different kind of case and this case there are or is this entirely plausible that the homeowner's association could choose to invoke a remedy that an indiana statute specifically m available and i also want to point out that we're talking about a creditor that has a homeowner's association which is very different from the type of creditor we typically see in fair debt collection practices  case this isn't a credit card company or a bank that as the court said in a radio would be happy to receive any amount of money from a debtor and then be satisfied that's not the case that all homeowners association expects to be paid it has to be paid in order to function it can't go on and do its function without regular payments of dues from its members but this additional reason the idea that the homeowners association may need to consider national financial services case which is not helpful to two the pilots in this case because it's factually different and that case the the attorney stated  that the debt collector stated quote your account will be transferred to an attorney that isn't paid after the deadline date that the attorney then stated i have the authority to see that suits filed against you and only your immediate payment will stop further legal d action we don't have any representations like that in this case a law firm never told the guns that foreclosure would occur if they didn't pay by a certain date fs is is a very different kind of case and also talk about the guns allegation that the district courts didn't credit it's it's  it's factual allegations that's just incorrect the district court did accept as true they're well pled factual allegations with the district court didn't do it which it was required to do under  paul is to accept conclusory allegations such as that the homeowners association would never seek such a remedy as part closure or that it would never be economical those are predictions about the future that the court is not required to accept as factual obligation and the guns complaint that those allegations work accepted as factually correct are not well taken is there some source of information about how often condominium associations do fall on foreclosure actions providing information this sort is more in the nature of a defense than of something you would want to be well i think it may if we were actually going forward in a trial the issue here is whether the guns even stated a complaint they could get over the will to well be six does not address a trial of whether a complaint is oh excellent absolutely correct so what we're trying to say here your honor is that because we're looking at that because the issue below the district court was the granted the rule twelve based its motion that we look at what was played by the guy so that is that was the that's the focus here and the record correctly as it was required to do credited the well falsity the court found that the statement was not literally false but that referencing the action when it was not intended or authorized was misleading here we have a specific statutory regulation of when you can say things about taking the debtors property with reference to whether a th of the association can change under heredia it is the obligation of the debt collector particularly when they're regularly engaged in the collection of association gets to determine what the intent was in the small claims was filed only a couple of months later and there was nothing to cause their intent to change with respect to whether the information is factually available i understand that most in demand accounting some out of the odyssey system we were not able to find any instance in which this law firm filed a foreclosure for a homeowner homeowners association or in which this is associate filed the case and at no time in the briefing as the defendant claims that reddleman your time is expired but i will ask you the same question are there any data on how often on associations in general while foreclosure auctions that i am not aware of it would be necessary to look up the particular attorneys and association thank you very much the case will be taken under advisement and the court will be in recess