plaintiffs article three standing in this case hangs on one of that it may not have been clear from the briefs but i want to just stablished that now knows the june thirtieth letter from my clients was from defendants to the plaintiff former attorney james sandy in plaintiff's brief they say mention acts of greentree mortgage service they mention hypothetical injuries related to state walk causes of action but none of that is relevant there is one federal claim in this case it's the only one that has been remaining since two thousand and thirteen the other alleged federal claims were not seriously litigated they were dismissed on statute of limitations grounds based on the face of the pleadings themselves so you know that the june thirtieth letter and i'm glad you want to talk about it it's really important seems odd to me that it almost seems a little unfair let's just say you're right on the june thirtieth it would suggest to me that it should not be ra because if you're right i think the same problem with it in fact the june eighth letter and there was never a jurisdiction to look at that so how do you understand what i'm saying you're asking if because of the june eighth letter there would still be the possibility of supplemental jurisdiction now i'm just making the point if if you're right about the june thirtieth letter that we have no there is no injury in fact therefore no standing no article three jurisdiction would you agree with me the same would be true as to the june eighth letter case so here's what seems a little unfair about that when we dismiss for lack of jurisdiction it's doesn't have race judicata fact right but the june eighth ruling does have raised you to kind of effect does  saying because that was a time bar that's a ruling it's on the merits and that's it's over so what do we do about that that just doesn't seem right to me well it's on the trial court to determine subject matter jurisdiction are three say article three standing civil sponte throughout the course of the case so the fact that i mean they could have determined early on that there was no subject matter jurisdiction as early as two thousand and thirteen and requires concreteness a de facto injury that exists for small numbers recognized by the trial court to the plaintiffs based on the june thirtieth letter of the second issue before we get to the fact that it was not sent to plaintiffs is i believe the holding from this court and why should  levy closes the door on a concrete injury for the june thirtieth letter as well plaintiff attempts to distinguish life by sa by saying the facts from church via creative health are different because life ruled on church the problem is that with that argument is that the church had only one holy church only dealt with the missing money miranda on the letter to a debtor in this she didn't distinguish the facts of church this court and life dealt with the facts head on and said yes those are the facts from church the only facts from church are missing many miranda on a dead letter were choosing to not follow church and again there's no point in belaboring this but the june thirtieth letter we don't even know if the plaintiffs ever saw it it would be unusual because if the court examines the letter was a cover letter it follow a conversation that law firm defendants had with plaintiff former counsel it was entirely truthful this rather perfunctory sort of ministerial correspondence that said in closed please find this this this and this follows up on our conversation why can't congress create injuries you can't congress say if you don't do something it's an injury or in spokeo they can not create an injury in fact they can create a procedural right it and again there was nothing substantively wrong or misleading about the letter just missing the the mini miranda even if there is standing in the f t c claim should fail because again the june thirtieth letter was not sent to the plaintiffs there may be a circuit split about a blanket exemption from the f t c v a for communications between between attorneys there there are there is a circuit split on that but there's no circuit split on this issue the issue of the mini miranda from eleven in the sea of cases the plaintiffs have cited not a single one has held that that many miranda is required to communications between a turds we would certainly point the court towards those circuits such as the ninth the say the f t c does not cover communications between attorneys but even outside those circuits there is none that have applied the f t c the way the plaintiffs propose  plate of cited bishop the ross perot from the eleventh circuit it examined two cases every from the seventh circuit indictment from its own circuit the eleventh bishop did not state there is a blanket exemption from the f to intrude attorney communications however it did say even given that requiring the mini miranda from eleven to communications between attorneys would be a pointless formality but does it make a difference this attorney thing i mean aren't attorneys obligated to give letters to the clients so i mean it's you know you you may we may not know what happened here i get what you're saying there but i guess i'm just not sure what it means that it goes down attorney it it's not like the attorney takes it in takes out all the threatening language and that's one of the circuits are found when they haven't found a blanket exemption if there's threatening language they found a different attorney sends another attorney a lot of a threatening language or something to blame we felt say your client o four times what's actually owed to some of the circuits where there is a split have said ok that might be actionable under the f t c but there is first of all the statute itself says in a communications with a consumer not the consumers attorney second of all the c in subsection c distinguishes between a communication with a terry and a communication with the consumer their client i mean you could almost make the argument that sending a letter to an attorney is more threatening you have two people that are married and suddenly the husband finds out that his attorney just got a letter from his wife he's going to be pretty bummed out so the act itself of this is serious stuff i'm saying to the attorney this is  you're a lawyer officer of a court as opposed to you directly i believe if it were a threatening letter to the content a lot or i think the court us to look at the letter as other circuits have done if the court decides not to go with a blanket exemption from the f t c v a for intra attorney communications i think you then have to go to what the other circuits have done and look at the content of that letter and say it was a fault was it misleading or did it simply omit a statement that the recipient of the letter himself found to be a non issue something that's not addressed by the plaintiff is how this application would work because eleven does not limit its application to written communications between attorneys it says any subsequent communication so we still have that i  two attorneys crossed paths in the courthouse there they're all different cases one says the other hey jim remember we had that deed in lieu we need to finalize on that jones case the attorney says yeah look for my email or letter at that point the creditors attorney needs to go by the way jim this is a communication from a debt collector this is an attempt that all information will be used for that purpose that is what the application that plaintiff propose  similarly the ohio consumer sales practices act claims have three substantial hurdles first of all in order to survive the law from defendants must be suppliers to the plaintiffs as suppliers is used in that act attorneys are not suppliers under consumer protection statutes to adverse parties and litigation process seen from this circuit is unequivocal it dealt with an o c s p a claim against a company and its related attorneys who initiated and managed a foreclosure process this court opined that consumers would only interact with when they're processing because it's lender client that hired the company to help initiate and manage a foreclosure managing a service that ends with a consumer losing her home could scarcely be considered a service for the consumer the reasoning applies not just a letter processing but the defended law for the most important thing from clarke i believe is that the plain language of the o c s ph should be taken seriously companies that are not in the business of affecting or soliciting consumer transactions are not suppliers engaging in a consumer transaction defendants had a client greentree services servic foreclosure your position on the ohio law as it does not incorporate the federal requirements correct isn't there a lot of a case where that's exactly what the house from court has done they take in these general liability rule the title seven's a great example along comes the state and acts a similar regime not word for word but similar doesn't the austrian court often say we look to federal law to figure out how to apply these statutes if you're that finding an o c s b a or f t c be a violation requires examining whether the alleged conduct is expressly prohibited under the statute i have no doubt that if the federal if there is federal law saying for example rolling back odometers or something like that that is clearly deceptive ohio can look to the federal law and say well that's deceptive but it's also deceptive on its own merits something a specific because this is an omission this is a comb issue and you have to place this language  letter something like that if the state of ohio wanted to require a mini miranda they could do that and they could give it a two year statute of limitations because i would submit if we're going to incorporate wholesale  fair debt collection practices act we would need to incorporate statue of limitations as well thank you on the other side country and what happened is is that spokeo on remand even recognized well indicated and that simply is that a concrete injury can be one created by congress in this particular case both letters were letters that were substantive informational rights that were created by current by congress the  this case the law from defendants never provided that particular information that congress decided to make available to the public and they consumers have a right to receive that information and the failure to provide that information to the country injury because the failure to get that particular information is a violation of the statute what the law firm defen there's three other ones you're on i'll be more than happy to file a letter with the court on these issues but one of them is reported it's called sears s a y l e s the advanced recovery systems inc eight sixty five pronunciation p a p e t t versus those that sixty nine one fed a p p x twenty four that's a second circuit case and there's another case it's called d e m a r haven't told your friend about these cases well he has not seen that so why don't you buy you know whatever friday i mean you obviously have them just send us the cases give him a response if he has a new cases i mean this the law is moving quickly so it'd be nice to have the fruits of your research so if you've got something by monday send it monday and that's great that'll do that'll be fine we'll read them and we'll go from there but still but just just tell us what the what the injury if it just in the common sense way with the entry of on the same page that congress can't create congress can't just create the injury that would be end run around article three so why as well and just yeah i'd like to give you that but i just want to mention one critical thing and that is the law firm to defend its argument is the pity of hindsight logic because it's there looking at the outcome to determine whether or not there was an injury in fact approximate two years after when they received the summons and complaint they called the law from defendant's law firm defended sent out a deed in lieu of foreclosure which means we're not going to collect any money from you if you sign off on this and we'll give you back the property they do that and that and so what happens is that after that happens they get the didn't lou and that was the june thirtieth letter and then the good from right they then didn't get it didn't have the didn't have the civil miranda warnings and then the subsequent communication with mr mr sandy why eleven what about the june thirtieth letter is hurtful it's hurtful because he did not provide the sixteen ninety eight but that's that's just saying the process violation creates an injury in fact and that's that's what we're not allowed to right yet but what happened what happened your honor was well we believe that that's a concrete violation that's directly related the purpose of the statute and you could find you have standing for that but the real risk of harm is that i mean they didn't read wait i mean congress regulates something and says you've got to give warnings but the letter is here's a thousand dollars and it doesn't have the warnings it doesn't even say return you don't have to contact us at all here is the thousand dollars that the letter attached is a thousand dollars in cash and congress has said we want to warning with that letter if that's unusual possibly say that's an injury in fact if even though it's a process violation right it's it would you agree with me or you would you say no that is an injury and facit injury in fact this is an absolute requirement that thousand dollars and if it's an initial communication it doesn't mean if it's a gratuitous communication whether it's and no other communications people don't even know each other but congress decided that it was going to regulate this particular area and that attorneys are covered by this particular area so what happened was that after that and after they received that letter and didn't get their note they didn't know what their rights were so then they started getting telephone calls from greentree these telephone calls your honor were outrageous in that and we have the  standing to do it they were never informed of those rights may never waive those rights law from defendants tried to get them to forfeit those rights and those rights are not reviewable or forfeit the other problem is factually that and i know this is that important for the courts analysis but they did receive that letter from their counsel they were required to as a matter of as you pointed out ethics the law from defend it sent that letter to the hague use an important letter because i effect said hey you don't have to worry about this that's why they contacted mr sandy again well we believe that the plain meaning of the act clearly indicates that indirect communication through a lawyer is certainly something that is subject to the civil war and warnings as well as the minimal ranta warnings mr he did get that letter it's found  this particular letter the one in the eleven letter was a communication within the plain meaning of the act though it was sent through the attorney as you indicated he has an obligation to give that information to his client since i'm sure you know this area way better than i do you know you won't like this question but i'm still i still want to hear what the answer is like let's just say you're wrong about this particular letter  let's just say i look i'm just i look at it and i say to myself i just i can't understand any way in which the word injury could have meaning and this would count as an injury ok so just hypothetically that's my view of it  how does that how would that mess up the statute in the way this works because i mean there are plenty of these in this case shows greentree communicate i mean that's the clowney of communications that i would it would be very easy to show and not to say show they really do create an injury including emotional injuries primarily so that's usually a pretty easy thing to show so i'm trying to figure out whether this puts some big hole in the statute or if it's really a pretty modest problem that in most disputes it'll be pretty easy to find a communication that satisfies the injury in fact requirement right congress the reason why it's necessary mandatory is because congress wanted to make sure that this law was uniformly applied and congress wanted to make sure that they would live in a deck lection problems like we had in this particular case giving people their rights gives them an opportunity to exercise those rights and that's what congress wanted to do it want to make sure that the consumers were protected the debt collectors treated people in a civil manner which includes giving them the opportunity to know what their rights are and the failure to provide those rights is a mistake for example if you called up a  defendants didn't do it is meant a fact that there deposition five different times mr damaris indicated this is on page id numbers six five four six five five and six six t was regulatory regime created by my hypothetical me you're not going to take cases where the only communications are here's a thousand dollars or you don't have to pay we're sorry we bothered you case over i mean you're complaint i tried to get this whole case resolved it couldn't get resolved it was litigated but the case you're talking about happens to be something that judge came up or brought up during the frye decision he brought that up and you know and he brought that up because there was a law firm that was filing all these cases just to make money but that particular case is factually distinguishable from this particular case because in that case there was a post  post judgment information and they had been dealing with each other for years they had the attorney even gave comparable wording in the letter and there is no wording in our letter this in this particular case the attorney in that case admitted it was a collector the attorney in this case denied it and fought it out in that particular case the debt had not been paid in an arc case the debt had been paid and they were trying to collect on it this case was brought with actual damages in that case it was not with any actual damages it was just a gotcha type of letter i would practically take it juts or hundred brought that up he says you know maybe this is the kind of stuff you should be doing in federal court you know i would look at work closely if i was  district court judge and the other thing is that you know i'm thinking about letters i hate to introduce evidence of my own experience but you know we overpay our bills all the time were utterly irresponsible and then we get these letters that say you know i'm sorry you know here's fifty dollars back you didn't need to pay that co pay or whatever they never come with warnings and i i would just find it absolutely are that the reason why they don't have a debt relationship but the reason why those don't is because those are coming from debt collectors that collectors or people to collect for third parties you're getting the check back for example from the statute doesn't apply when you ask some of the pay bill it only applies when a third party it's like an attorney or debt collection agency asked to pay back all right bill me that anxiety oh yeah definitely yeah and i just i don't have an injury and founders are allowed to collect creditors are allowed to collect their regarding that they are some sort of exempt from liability really doesn't apply because anything that happened after that doesn't matter thank you very much thank you very much mr bennett do you have some rebutt record is greentree started contacting the hades after the fact when they shouldn't have a law from defendants assisted in clearing that up by telling greentree hey stop it in fact law from defendants how to disclose privileged communications with  greentree clear that up and show the court listen it was not law from defendants that did this greentree did this on their own law from defendant's help to clear up the problem second of all concreteness concrete is a metaphor a said he found it slightly presumptuous that he would need the many miranda on the cover letter to him neither of them alleged any injury from the missing many miranda to either of their letters and again there is concrete injured not afterwards not after spokeo but i don't think we would want them to adjust their testimony after a case comes out so they can meet the requirements of article three  clip mortgage servicers are not suppliers and the servicing of a mortgage is not a consumer transaction the fact there may have been personal property on this premises at some point is irrelevant because the foreclosure related only to real property whether it started out as a mobile home or whether the plaintiffs moved an r v on to this parcel at some point during their ownership it makes no difference because if it was one foreclosure requesting foreclosure of real property