the district court held that attorneys that you any for closure any whatsoever are exempt from the federal fair debt collection practices that are under the dusty  decision now the parties have priests breached sort of a slew of issues here but i'm going to try to focus on three in the time i have and three i want to talk about our article three jurisdiction which was not addressed by the district court  whether the district court properly applied of dusk and then the rd issue has mr court's failure to address its original jurisdiction under the fair i'm sorry under the class action variance wasn't sure what you meant on one of the three issues that you said you were going to talk about but i suggest that we talk about standing st if you don't have standing none of these other issues make any differently and that was my st that was my  interest now as you well know under article three in order to have stand you need to have an injury in fact that's one too that's fairly traceable to the conduct of the defendant and three that is  in order to plead injury in fact you need to is to plead an injury that is quote actual or imminent that is quote per pixel arrives to the point of and three that is concrete my understanding the foundation of the cause of the action well why is this case any different than bucholz i guess that's the main question i have a great i you know we question whether anxiety bear bear allegation of anxiety alone was enough but even assuming it's enough it wasn't fair we traceable to the to the latter it was traceable to the to the debtors unwillingness or authored but your holding to the panel's holding the court's holding in that case was that it was not only traceable which is not even an issue that's presented here it wasn't purely traceable because it was fairly traceable and defendant haven't even made your charge there is no fair trail why is it different i don't know what their i mean they may or may not be saying that but this is a jurisdictional question so why is this one traceable where it was the actual r c you know what or which he received and read so it's not some speculative you know in the future i might do this and it's in my own head even though they didn't threaten something the letter of his you meant this case at the initiation of closure when they get a referral from from from their client be the mortgage process or what does he does he claim that wells fargo had not been telling him in some capacity or respect that if you didn't pay they were going to foreclose so again not pled in any of the complaint so i'm reluctant to go beyond the record but as this court held her just her and letterhead i think the statute was getting it people that were falsely representing that they were trying to use when they called who i now understand we've probably gone beyond that now because of christian or but i'm not sure what how far beyond their we've gotten but i don't  mean i guess the gist of the argument is that this is there's just no way that an attorney could have reviewed this letter right is that your argument the pleading to the complaint is that it was not really meaningfully reviewed and attorney yes can i ask you let me ask you this before we get away from standing what aside from the aside from the allegation of anxiety and confusion is that what it is there anything else that is a that is alleged to fore again before we leave this topic you know spoke a you know it was the current most cited supreme court authority on article three standard and specifically on the issue of concreteness which i believe this case the jurisdiction had a responsibility not to issue a substantive ruling if it determined it didn't have jurisdiction it's the very day it's issue and ok oh and it says no that's not misleading it gets to the merits of the case i don't think was there are specific paragraphs in that complaint that talk about what the risk of harm would be in that situation and i don't see similar paragraphs in your complaint about what the real risk of harm is from the kind of phony attorney who enters i'll call them phony it's very it's actually an attorney but i don't i mean what's the risk of harm i mean is it there's you're going to pay something you don't owe is that the real thing you're getting at the real risk is that you're going to attribute too much weight you're a you're a homeowner and your daughter who's perhaps what we face in financial challenges and you're going to say yours stuck i'm not going to you know make decisions in the us in michigan if you go forward with a foreclosure by advertisement you typically get a six months redemption period which means he person x months without making him a bit but assuming that everything that you just said makes sense you didn't make any such allegations at all you didn't say this letter was harmful because he had differences or he thought there was a mistake or whatever you're just simply saying you get a letter that hasn't been reviewed by a lawyer therefore you've been damaged in going back to jail the indians very st question that that just doesn't make sense and i think you put your finger on it judge if you hold that there's no adequate standing here based on this play that can amount to saying that a debtor that actually has the money can never glance see the main place or a decision offered by touch griffen the court this court even though the ultimate holding was partially reversed in a dusky the court got it right that is a state park play purpose to avoid misleading communications excuse me my regulated persons plaintiff an hour subclass member suffered an injury under the r c a because holds that businesses such as the defendants here are debt collectors only for purposes of six thousand and ninety two f six but i see your complaint as alleging a claim and ninety two eat for allegedly false deceptive and misleading representations so how how does your claim come was in the  mean that for closure terry hart watch to do whatever they want to do it thank you midnight phone call they'll still be subject to the statute the only way you get their judgment is if you read the opinion as we read out of the not you know i answer your question is there if if i do if let's assume i'm not doing something required by state law yeah ok do you think that there's then everything else is is is fair game or are there three categories there is something that is required by state law there is something that is abusive repetitive night time calls and there's something else that is mere we perhaps a violation of the statute but is not abusive whatever that means or are you saying that anything that's not required by state law is falls into the abusive category i'm not saying that judge i'm saying that anything that is not required by state law in the context of hope for closure is that election and subject to the other restraints of the statute doesn't mean it's a us there's many many foreclosure attorneys who for many years but we know from dusky that the viability for that for this quote unquote debt collector has to be tied to abusive behavior right i mean bright justice briar's opinion said we're not giving you carte blanche you can't do something abusive i don't know what that means the only example  is repetitive night time calls but it can't be that he means everything in that statute that's a violation which would be problematic right i respect to respectfully disagree i don't even understand how they are here follows another words there is no congress has already defined under its legislative power under article one what it considers to be fair and unfair debt collection and so this notion that you're going to distinguish between abusive and not abuse of all these myriad other violations is just putting the court in a horrible position but what you just heard just point of that part of the opinion that i don't understand that i am trying to make heads and tails here dusty but i am trying to figure out what's going on in that last page or last few pages of that opinion where he says well  you're going to be exempt from the lion's share of stops air but you're not going to get away with everything like repetitive night time calls and that's i mean is he slicing the justice prior slicing it up so that we're left with a few categories is not that's not right it can't be it can't be the only clear line is to say this is what we're arguing if you're following state for closure law the court court was trying to reconcile because the the major definition with the special the some part definition the secondary and it did it repeatedly by saying we understand that dhanam decision to say this is the this is the clear path and it doesn't mean that once they step beyond what's required by state for closure law they're automatically going to be abused we don't allege here this is an attorney letterhead case were groans claims that he was confused over whether a letter he received in connection with his non judicial foreclosure that was our new orleans law firm's letterhead was from an attorney who actually reviewed as mr garland does not contend that the actual contents of the letter were inaccurate or misleading in any way he just says he was confused over whether an attorney had reviewed it that's his sole complaint he doesn't allege it was subject to any other allegedly improper conduct such as late night progressing phone calls or anything and he seeks says his sole remedy the statutory fines available under these acts he does not seek or even claim to him that his prospects for avoiding foreclosure were diminished that's it he doesn't claim he took any action as a result of being confused or inches or that he relied to his detriment on the letter either being from or not from an attorney and he does not dispute that he owed the debt secured by the mortgage or that he failed to pay it and he does not dispute that is lender had the right to foreclose in a non judicial foreclosure in that it did s there in this letter it's as that foreclosure proceedings have begun which seems to be saying a little bit more than the letter did and buckles right well but but but i think buckled is dead on point for two reasons number one it says in this circumstance you flunked the traceability requirement of standing because your injury is self inflicted because you didn't pay your debts and then secondly the court was very skeptical were whether being inches alone was sufficient to satisfy the injury in fact requirement so i think that the whole been a back old is dead on and of course judge griffin you were on that panel in terms  kind of the background of what's going on here it's important i think nancy let me say to me ask you this question about bucholtz the one thing that buchholtz did not do because for various reasons was analyzed whether there was a real risk of harm or material risk of arm and if we were to look at that question in this case why wouldn't we say th statute there is a real risk of harm when you have somebody posing as an attorney or something on tourney letterhead is going to make a debtor more likely to do something that they wouldn't ordinarily ok so st of all there's no garland did not plead that there was an impending risk of harm at all he did not believe that and he took no detrimental action because it was in ledged and saudi or in reliance on his confusion and i submit your honour's that the requirement for a concrete injury would be investigated if a plane of could simply make a conclusory allegation and anxiety and thereby satisfy the injury in fact requirement with respect to a bare procedural violation of the act and that's all we have here it and i would also say but i mean the response to that is the judge referring obviously concurred in bucholtz and said look there are plenty of times where we do something where it's something that looks like ings idea or mental damage mental distress is recognized as an injury for at least for article three purposes why does not pledged nothing as to duration or severity or how it was manifested or ever whether he ever received treatment for all we know early unsupported anxiety lasted only for a nanosecond if that question about that opinion because it certainly synesthete of confusion but it really doesn't say anxiety does it know it it does it focuses on confusion as opposed to anxiety but i think for these purposes the ok especially when we meet all we have is the conclusion i was anxious we don't have anything more there's no indication in the complaint that the plaintiff in any material way suffered anxiety and if you let a plaintiff in an f t c ph place case satisfy standing by saying i was anxious you've just written out the injury in fact requirement you've written out of the standing everybody can get past it with the conclusory allegation  which is i don't think what anybody's intention was if i may it's important to focus on this case is damaged by the state claim because that six many many times the amount so here in the federal claim but it's undisputed that the state law claim could not be brought as a class action in state court because a michigan court ruled bars the assertion of a class action where like here the classics only statutory fine this is undisputed here so what's going on here is that girl and seeks to bring a class action under the state statute which dwarfs the federal plan in federal court when he could not do this in state court and he seeks up to two hundred dollars in fines on behalf of thousands of people who are allegedly part of his punitive class for a state claim when he would be barred from doing this in state court and he contends that there should be kept a jurisdiction over his state law claim when  fight a single member of the punitive class who is a citizen of another state but he contends that he can satisfy the requirement for minimal diversity under katha by just speculating in his complaint that an unidentified member of the class and the class consists of all michigan borrowers were foreclosed that an unidentified member of the class must now of moved out of michigan and become a citizen of another state do you think this the standing out the standing analysis takes care of the federal and the state claims or an absolutely yes yes the ending is dispositive here on everything ok so the only we we only get to this ca know there's this there's a we think there's a viable possible state claim right correct ok why is it implausible to say that in the last ten years not one of these people has moved out of state i mean is it just it's we can all agree that's plausible but it's just up to the plaintiff to allege it ever find somebody to satisfy minimal diversity yes i mean i think the way this works is the waste federal subject matter jurisdiction works the courts federal courts are courts of limited jurisdiction there's a presumption against federal jurisdiction and a plaintiff must allege actual facts to invoke federal jurisdiction you can't satisfy minimal diversity through speculative speculation and conclusory allegations and that's all we have here either and the failure to identify a member of the class that was diverse inexcusable here because garland concedes he has a list of all the names and addresses of every michigan bar or upon who orleans foreclosed he had the ability to determine if there was a diverse member of the class but instead all we got was speculation katha does not impose much but it imposes two things you've got to have no jurisdiction you've got to again a five a specific out of state person and you got it allege you and demonstrate five million addition and he also flunked the five million additional requirement the way he gets to five million is by speculating that every michigan borrower who was foreclosed got a letter like the one the guardian beauties are calling a corporation is right it isn't like an l l c or a partnership ok mr winston if if we were to get past the jurisdictional issue as to the state law clearly tell me how the state law claimed does not state a claim upon which relief can be granted the federal claim to me has problems with or dusky and whether or dusky does not allow this under the federal law but how about the state that i said let's get past ok we get past it tell me why it doesn't state a clip secondly the plaintiff's entire position here is that the state action be construed consistent with the federal act therefore but different it's different though isn't it you know and i'm getting i'm getting to that but his overall claim is interpret it the same way so you know just from a superficial standpoint ok even even if he argues that the laws are the same i mean we have an obligation to correctly apply the law even if the attorneys get it wrong and if the attorneys get it wrong we still have to get the law all right so all right let's get the law ok the act the state act excludes a collection agency from the definition of a regulated person or lens is not a regulated person under the state that a collection agency is defined to include a person gaijin repossessi or attempting to repossess a thing of value the definition of a regulated person does not include an attorney repossessing or attempting to repossess a thing of value and likewise the act only prescribes misleading communications in connection with the collection of debt and does not prescribe such communications in connection with the repossession a property they're for the state act which was created shortly after if the c p a and was intended in effect to mimic it has the same kind of exclusion for security interest in forster's it's not meant to capture security interest in forcers under the definition of regulated persons that's number one number two what do we do ok what do we do with the fact that the supreme court says and i'm just glad that we're not giving you complete immunity there are some things you can't do the only with the one thing we know you can't do is repetitive nighttime calls what never need to get to that issue and that makes plain why and then i'll get to the substance of it in bates in two thousand and twenty this court broadly applied to dusky and help the parties who assist creditors with the non judicial for closure of a home do not fall within the general under state law in bates and you're not in i'm assuming you're not in that box and just so we're in this case where in this world outside of a dusty outside of debates where you're doing something and i don't know what it i don't know exactly whether i'm just trying to figure out what is it that you're exempt from if you're not acting pursuant to state law ok so a dusky says that you know in the language you recording from prior but if you engage in other abusive activities we're not deciding whether or not that brings you back within the ambit of the act here there's no allegation that we've engaged in any other allegedly improper activity so there's nothing additional here to bring this back within the orbit but i want to go back to the bates point for his own the phony attorney letter is possibly would be i would say is that the same as a repetitive nighttime call when that letter is not covered we are the does not of the act does not apply to us because congress excluded security interest in  way i read it it's it's an odd way that it's an odd way to do definitions in a statute i don't agree with that i'm just saying that that's all i'm trying to apply it and it says hey if you're being abusive then i'm gonna call your debt well they don't say that what they say is we're not we're not deciding that and mike you know my suggestion my guess is that language got included in order to keep the decision unanimous but but they're not deciding that that brings you back within the ambit they're just saying we don't have to deal with it is pretty clear that th opinion is pretty clear don't you think hey we're not giving you blanket immunity so you do not have blanket immunity we agree right so number two i'm giving you a suggestion of what might fall into the liability and i think they're going to be sorting out whether there are three buckets or two buckets as you asked my opposing counsel but but again i think it's important here to focus on the fact that bates said we don't have to deal with any of this stuff because unless the plaintiff proves that you have a principal purpose other than nontraditional for closures in the complaint you're not within the the general definition but in this case he pled the exact opposite he pled that the vast majority of our foreclosures are nontraditional foreclosures that his home was for close to a non judicial foreclosure it's we doesn't plead what bates requires to have a chance to come in within the u n but of the general definition so and i apologize because descriptions question was about the michigan section but you referred back to the federal so i guess i go back to the state issued and how does all that work with the way the michigan statute works you're saying that if you don't under that bates test that you're not if you're basically just a security interest or so you're also not a code debt collector under me on there under the michigan statute yes under the the definition of regulated person and we set this out in our brief if you work through that you'll come to the conclusion that a security interest in force or just like in the f t c p s a is not covered and that makes sense since the state statute minutes the federal but there's more the state statute has an additional injury requirement the state that specifically requires in section seven that garmin plead that he suffered an injury loss or damage to recover and he has to plead that improve that even he statutory fines you have to show an actual injury to recover in here there is none for all the reasons we've been discussing so you know addition to constitutional standing there is a more strict statutory standing requirement requiring that  show injury wasser damage in these disclaimed all that he doesn't claim any damages he's only seeking the fines so you're saying that even if anxiety were not for article three there would have to be even more under the michigan give you one minute to wrap it up if you want thank you your honors and thank you for your work on her case you've obviously read that read it very carefully and we all appreciate it carolyn lacks a constitutional standing to identified member of the putative class and again on the state claim the punitive class consists only of michigan borrowers who were foreclosed so in order to be able to make this claim he's got to be able to show that one of those people has moved out of years and so i understand the impulse of the defendants happily to try to push this the analogy to an intentional infliction of emotional distress claim that's not what we've done malice intent knowledge and any other condition of a person's mind may be alleged general so that's an invitation for you to fly over to disregard the federals se this argument has been made multiple multiple times has held that up for closure law firms are regulated person under the michigan regulation of collection practices act including judge rosen and  after all this is your profession and you've got the protection of a dusty it's not a hard it's not unfair or harsh being a bit dusty if you step outside and don't follow if you're doing something