MEMORANDUM OPINION

T. S. Ellis, III, United States District Judge.

This putative class action arises from defendant's issuance of a letter that allegedly violates the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq. Plaintiff, Attila Biber, a Virginia resident who has defaulted on federal student loans, contends that defendant, Pioneer Credit Recovery, Inc. ("Pioneer"), a debt-collection corporation, violated the FDCPA by sending letters that mislead recipients into believing that their wages are about to be garnished if the recipients do not pay their debts. Pioneer has moved to dismiss the Second Amended Complaint ("SAC"), raising a facial challenge to Biber's Article III standing to bring an FDCPA claim1 and contending that the SAC fails to state a claim upon which relief can be granted, pursuant to Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P.

For the reasons that follow, the motions to dismiss are granted in part and denied in part.

I.2

The SAC alleges that on April 1, 2016, Pioneer sent a letter ("the Letter") to Biber and others, which was captioned in bold, capitalized letters, "Administrative Wage Garnishment Proceedings Notice." SAC ¶ 13 & Ex. A. Because the Letter, which was attached to the SAC as an exhibit, is the centerpiece and focus of Biber's SAC, it is appropriate to recite the following principal statements contained in the Letter:

Id. Ex. A.

Biber, in the SAC, alleges that Pioneer violated the FDCPA's prohibition on a debt collector's "use of any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e.3 Specifically, the SAC alleges that Pioneer used false, deceptive, or misleading representations or means in the following ways:

SAC ¶¶ 23, 36.

Pioneer challenges the adequacy of the SAC on two grounds. First, Pioneer contends that dismissal is required pursuant to Rule 12(b)(1), Fed. R. Civ. P., on the ground that Biber lacks standing to raise any of his FDCPA claims. Second, Pioneer asserts that the SAC must be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P., on the ground that the SAC lacks adequate factual allegations to support Biber's claims for relief. These motions have been fully briefed and argued, and are therefore ripe for disposition. Each motion is separately addressed.

II.

Analysis necessarily begins with the question of subject matter jurisdiction, for absent such jurisdiction there is no power to adjudicate any issues. In support of its Rule 12(b)(1) motion, Pioneer contends that the allegations in the SAC do not plausibly allege an "injury in fact," and thus Biber lacks Article III standing to bring any of his FDCPA claims. For the reasons that follow, Pioneer's standing challenge succeeds in part and fails in part.

The legal standard for a facial challenge to subject matter jurisdiction is "patterned on Rule 12(b)(6)," such that "the truthfulness of the facts alleged" in the complaint must be assumed. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). To establish standing, a plaintiff must "clearly ... allege facts demonstrating" three elements: "(1) an injury in fact, (2) fairly traceable to the challenged conduct of the defendant, and (3) likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (citations omitted). Pioneer has focused its jurisdictional challenge on the first prong, contending that the SAC failed to allege an injury in fact.

As the Supreme Court reiterated in Spokeo, "[t]o establish injury in fact, a plaintiff must show that he or she suffered `an invasion of a legally protected interest' that is `concrete and particularized' and `actual or imminent, not conjectural or hypothetical.'" Spokeo, 136 S.Ct. at 1548 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). An injury is "particularized" if it "affect[s] the plaintiff in a personal and individual way." Id. (quotation marks omitted). To be "concrete," the injury must "actually exist," though it need not be "tangible." Id. at 1548-49 (quotation marks omitted). Importantly, Congress may "elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law." Id. at 1549 (quotation marks and alterations omitted). But the Supreme Court in Spokeo cautioned that "Congress' role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right." Id. Thus, a plaintiff cannot "allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III." Id. In this regard, in evaluating the Fair Credit Reporting Act's ("FCRA")4 mandate that a reporting agency provide accurate information, the Supreme Court in Spokeo noted that a statutory violation will not always "cause harm or present any material risk of harm" sufficient to confer Article III standing. Id. at 1550. For example, in the Supreme Court's view, "[i]t is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm" in the FCRA context. Id. Yet, the Supreme Court in Spokeo observed that "the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact" and, in such circumstances, "a plaintiff ... need not allege any additional harm beyond the one Congress has identified." Id. (emphasis in original).

Not surprisingly, in the wake of Spokeo, the overwhelming majority of courts have held that FDCPA claims similar to Biber's are sufficient to satisfy Article III's requirement that a plaintiff establish an injury in fact. The underlying logic in these opinions is (i) that Congress, in the FDCPA, created a right to accurate debt-related information and non-abusive collection practices, and (ii) that a debt collector's false, misleading, deceptive, or abusive conduct concretely harms a debtor by detrimentally affecting that debtor's decisions regarding his debt.5 In other words, § 1692e provides certain debtors a right to be free from false, deceptive, or misleading conduct or representations by debt collectors, precisely because such conduct or representations may cause harm or a material risk of harm. Thus, in many instances, violations of § 1692e differ significantly from the innocuous, bare "procedural violations" described by the Supreme Court in Spokeo.6 Applied here, the principles announced by the Supreme Court in Spokeo, and elucidated in the chorus of FDCPA cases decided following Spokeo, point persuasively to the conclusion that Biber has standing to raise most — but not all — of the FDCPA claims alleged in the SAC.

Analysis thus turns to the SAC's individual FDCPA claims.

A. False Representation that Pioneer Was Going to Perform an Administrative Wage Garnishment, 15 U.S.C. § 1692e et seq.

The SAC alleges that Pioneer, by sending Biber the Letter, "falsely represent[ed] that [defendant] was going to perform an Administrative Wage Garnishment, without first providing the notices required by 20 U.S.C. § 1095a and 34 C.F.R. §§ 34.1-30."7 SAC ¶ 36. Biber has standing to assert this claim because the SAC alleges facts supporting a plausible inference (i) that Pioneer engaged false, misleading, or deceptive conduct by sending the Letter to Biber, (ii) that Biber was aware of the Letter, and (iii) that Biber could have been materially harmed by relying on the Letter in making debt-related decisions.8 These are concrete, particularized injuries sufficient to satisfy Article III's injury in fact requirement in the FDCPA context. Moreover, given that Pioneer sent the Letter and that the FDCPA provides for statutory damages, Biber's alleged injury is fairly traceable to Pioneer's conduct and could be redressed by a favorable court decision. See Spokeo, 136 S.Ct. at 1547.

Importantly, the SAC has alleged sufficient facts to support a plausible inference that Biber could have been harmed by a false, deceptive, or misleading representation in the Letter — namely, that Pioneer had already instituted wage garnishment proceedings and that garnishment was imminent, when, in reality, Pioneer had not yet instituted such proceedings and thus had no authority to garnish wages. The following allegations plausibly support such an inference:

Notably, nowhere does the Letter dispel the notion that garnishment proceedings have already commenced. Thus, it is plausible that the Letter, read in its entirety, caused a concrete, particularized harm to Biber — a false, deceptive, or misleading representation that could have materially impacted Biber's decision-making with respect to his debt payments.

Seeking to avoid this result, Pioneer contends (i) that the SAC fails to allege that Biber ever received or opened the letter, and (ii) that Biber has alleged a mere procedural violation that does not give rise to standing. The first argument is unpersuasive because the SAC, read as a whole, supports the plausible inference that Biber read and was aware of the letter. Biber has not only engaged counsel and brought this action, but he alleges in the SAC that Pioneer sent the Letter to Biber. SAC ¶ 13 ("Prior to initiating wage withholding ... [Defendant] sends a letter to Plaintiff [which] is attached hereto as Exhibit A"). Moreover, the Letter itself is specifically addressed to Biber. Id. Ex. A.

Pioneer's second argument is also unconvincing, as Biber plausibly suffers a concrete, particularized harm to a legally protected interest when a debt collector's false, deceptive, or misleading representations could detrimentally affect Biber's decision-making with respect to his debt. Indeed, even cases cited by Pioneer stand for this very proposition. See, e.g., Tourgeman v. Collins Financial Services, Inc., 197 F.Supp.3d 1205 (S.D. Cal. June 16, 2016), appeal docketed, 16-56190 (9th Cir. Aug. 19, 2016). In Tourgeman, the plaintiff asserted two FDCPA claims: the first was based on the defendant's state court complaint that had misidentified the plaintiff's creditor, whereas the second FDCPA claim was based on a letter that defendant had sent after the Tourgeman litigation had commenced in federal court. Id. at 1209-10. In the Tourgeman court's view, the keys to establishing standing were (i) whether that plaintiff knew about the defendant's allegedly false statements, and (ii) whether the plaintiff could have been harmed by relying on those statements. See id. Given this, the Tourgeman court correctly concluded that plaintiff had standing to assert the first FDCPA claim, but lacked standing with respect to the second FDCPA claim.9 This same logic elucidated in Tourgeman and elsewhere10 obtains in the instant case, as the SAC plausibly alleges that Biber could have reasonably interpreted the Letter to misrepresent that Pioneer had already commenced garnishment proceedings and that garnishment could be imminent, which interpretation could have materially and adversely affected Biber's decisions regarding debt repayment.

Thus, Pioneer's standing challenge must fail with respect to this FDCPA claim.

B. False Implication that the Letter was a Notice of Proposed Garnishment Required by Federal Law, 15 U.S.C. § 1692e et seq.

Next, Biber contends that Pioneer "falsely implied that [the Letter] was the Notice of Proposed Garnishment required under 20 U.S.C. § 1095a and 34 C.F.R. §§ 34.1-30." SAC ¶ 36. This claim survives Pioneer's standing challenge for essentially the same reasons as those stated above. See supra Part II.A.

C. False Representation that Pioneer had Authority to Garnish Wages at the Time of the Letter, 15 U.S.C. § 1692e et seq.

Biber further alleges that Pioneer "falsely represented [that Pioneer] had the authority to garnish wages at the time of the letter, if payment arranges were not made at that time in violation of 15 U.S.C. § 1692e, 1692e(4),11 1692e(5)12 and 1692e(10)."13 SAC ¶ 36(A) (emphasis added). This claim also survives Pioneer's Rule 12(b)(1) motion, for substantially similar reasons to those stated above. See supra Part II.A. Indeed, the SAC plausibly alleges that Pioneer falsely, deceptively, or misleadingly represented to have authority, at the time it sent the Letter, to obtain an order of garnishment, when in fact Pioneer could not garnish wages without first providing Biber the requisite § 1095a notice and commencing administrative proceedings.

D. False Representation of the Character, Amount or Legal Status of the Debts, 15 U.S.C. § 1692e et seq.

The SAC alleges that Pioneer "falsely represented the character, amount, or legal status of the debts in violation of 15 U.S.C. § 1692e, 1692e(2)(A)14 and § 1692e(10)." SAC ¶ 36(B). This claim also survives Pioneer's standing challenge because, as stated above, Biber has plausibly alleged that the Letter falsely, deceptively, or misleadingly represents that debt collection through garnishment was imminent, whereas, in reality, garnishment could not occur until after Pioneer had provided Biber the requisite notice of debtor rights and initiated garnishment proceedings.15 Such an allegation is sufficient to establish standing under the FDCPA, as Pioneer's allegedly false, misleading, or deceptive statement regarding the legal status of Biber's debt constitutes a concrete and particularized harm to Biber. Accordingly, for essentially the same reasons described above, Biber has standing to assert this § 1692e(2)(A) claim. See supra Part II.A.

E. False Implication that the Letter was Legal Process, 15 U.S.C. § 1692e et seq.

The SAC also alleges that Pioneer "falsely represented and implied that the [Letter] was legal process ... in violation of 15 U.S.C. § 1692e, 1692e(10) and 1692e(13)."16 SAC ¶ 36(C). This claim must be dismissed for the simple reason that the Letter does not purport to be legal process.

To begin with, the parties agree that the FDCPA does not define the term, "legal process." Yet, most cases where courts have sustained a potential § 1692e(13) claim involved allegations — not present in the instant case — (i) that the debt collectors' correspondence was accompanied by actual service of process,17 (ii) that the debt collectors held out the correspondence as if it were a summons or complaint,18 or (iii) that the debt collectors' correspondence carried the official imprimatur of a court or government agency.19 Nothing of the sort is alleged here.

Indeed, Biber lacks standing to bring his "false implication of legal process" claim because (i) there was no service of process accompanying the Letter, (ii) the Letter does not purport to bring Biber into court or an administrative hearing, and (iii) the Letter does not plausibly carry the official imprimatur of a court or administrative agency. Rather, the Letter is written on Pioneer's letterhead and plainly states that it is "an attempt, by a debt collector, to collect a debt." SAC Ex. A.

Accordingly, this claim must be dismissed for lack of standing.20

F. Deprivation of Statutory Verification Rights.

In a section entitled "Factual Allegations," the SAC also alleges that Pioneer "deprived [plaintiff] of statutory verification rights which [plaintiff] would otherwise have" such that Biber "suffered an informational injury as a result of being deprived of information to which he was legally entitled[.]" SAC ¶ 23. In this regard, Biber contends that Pioneer "created a material risk of financial harm that Congress intended to prevent by enacting 20 U.S.C. § 1095a" because the Letter created the risk that Biber "might make payment decisions that he might not have made had he been apprised of all the rights described in the statutorily required form." Id. This "deprivation of statutory verification rights" claim must also fail for lack of standing. Put simply, Biber was not yet entitled to disclosure of debtors' rights under 20 U.S.C. § 1095a and 34 C.F.R. § 34 when Biber received the Letter, and thus there was no injury in fact with respect to Biber's "deprivation of statutory verification rights" claim.

Crucially, § 1095a and 34 C.F.R. § 34 contemplate that a debt collector will provide a student loan debtor 30-days' notice, including an explanation of certain debtor rights, before the debt collector may initiate garnishment proceedings.21 These provisions, however, do not preclude a debt collector from communicating with a debtor before sending the 30-day notice; the rule is simply that, if the debt collector is going to initiate garnishment proceedings, the collector must send the debtor notice at least 30 days in advance.22 In this respect, it is pellucid that Biber was not entitled to such § 1095a or § 34 notice because the SAC concedes that Pioneer did not intend to initiate garnishment proceedings. In other words, the SAC alleges that the 30-day notice requirement had not yet been triggered. In this respect, the SAC alleges

These allegations belie Biber's "deprivation of statutory verification rights" claim, as the SAC effectively alleges that Biber was deprived of information to which he did not yet have a right.

Accordingly, Biber's "deprivation of statutory verification rights" claim fails for lack of standing.

G. Unfair and Unconscionable Means to Collect, 15 U.S.C. § 1692f.

Finally, the SAC alleges that Pioneer "used unfair and unconscionable means to collect and attempt to collect from Biber and the class members, in violation of 15 U.S.C. § 1692f." SAC ¶ 36(D). Although this claim survives Pioneer's standing challenge, see supra Part II.A, for the reasons state infra Part III.G, this claim must be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P.

* * * * *

Given that Biber has standing to assert several FDCPA claims in the SAC, analysis turns to Pioneer's Rule 12(b)(6) challenge.

III.

The Rule 12(b)(6) standard is well-settled and may be succinctly stated: a complaint must contain "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). To state a valid FDCPA claim, Biber must allege facts supporting the plausible inference that "(1) the plaintiff has been the object of collection activity arising from consumer debt; (2) the defendant is a debt collector as defined by the FDCPA; and (3) the defendant has engaged in an act or omission prohibited by the FDCPA." Penn v. Cumberland, 883 F.Supp.2d 581, 586-87 (E.D. Va. 2012). Pioneer's Rule 12(b)(6) motion challenges only the third prong.

As stated above, Biber's FDCPA claims invoke two statutory provisions: (i) Section 1692e, which prohibits "false, deceptive, or misleading representation or means in connection with the collection of any debt," 15 U.S.C. § 1692e; and (ii) Section 1692f, which prohibits "unfair or unconscionable means to collect or attempt to collect any debt," id. § 1692f. In evaluating such claims, the Fourth Circuit applies the "least sophisticated consumer" standard. See United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131, 138 (4th Cir. 1996); Fariasantos v. Rosenberg & Assocs., LLC, 2 F.Supp.3d 813, 818 (E.D. Va. 2014). This standard "protect[s] naïve customers," but it does not impose "liability for bizarre or idiosyncratic interpretations of collection notices[.]" Nat'l Fin. Servs., 98 F.3d at 138. Indeed, the "least sophisticated consumer" standard "preserv[es] a quotient of reasonableness and presume[es] a basic level of understanding and willingness to read with care." Id. Thus, a collection notice "must be examined as a whole, not sentence-by-sentence, because the least sophisticated consumer standard does not go so far as to provide solace to the willfully blind or non-observant." Vitullo v. Mancini, 684 F.Supp.2d 747, 756 (E.D. Va. 2010) (quotation marks omitted). Rather, "[e]ven the least sophisticated debtor is bound to read collection notices in their entirety." Id.

Under this standard, "a statement is false or misleading if `it can be reasonably read to have two or more meanings, one of which is inaccurate.'" Goodrow v. Friedman & MacFadyen, P.A., 788 F.Supp.2d 464, 472 (E.D. Va. 2011) (quoting Brown v. Card Serv. Ctr., 464 F.3d 450, 455 (3d Cir. 2006) (citation omitted)). In this regard, "[t]he test requires a court to consider a statement's `capacity ... to mislead,' such that `evidence of actual deception is unnecessary.'" Id. (quoting Nat'l Fin. Servs., 98 F.3d at 139). Moreover, the alleged misrepresentation must be "material." Lembach v. Bierman, 528 Fed.Appx. 297, 303 (4th Cir. 2013). A material representation is one that could "affect a consumer's ability to make intelligent decisions with respect to the alleged debt." Penn, 883 F.Supp.2d 581, 589 (E.D. Va. 2012).

Given these standards, Pioneer's Rule 12(b)(6) motion must be granted in part and denied in part.

A. False Representation that Pioneer Was Going to Perform an Administrative Wage Garnishment, 15 U.S.C. § 1692e et seq.

For essentially the same reasons as those stated supra Part II.A, Biber's claim that Pioneer "falsely represent[ed] that [defendant] was going to perform an Administrative Wage Garnishment" states a claim upon which relief may be granted. See SAC ¶ 36. Read in its entirety through the "least sophisticated consumer" lens, the Letter plausibly constitutes a materially false, deceptive, or misleading representation that could "reasonably be read to have to or more meanings, one of which is inaccurate." Goodrow, 788 F.Supp.2d at 472 (quoting § 1692e); see supra Part II.A (detailing the Letter's contents). Indeed, Biber has alleged sufficient facts to nudge his claim — that the Letter misrepresented that wage garnishment proceedings were imminent — from possible to plausible. Moreover, the SAC plausibly alleges that misrepresentation could have "affect[ed] [the] consumer's ability to make intelligent decisions with respect to the alleged debt." Penn, 883 F.Supp.2d at 589. Thus, Pioneer's Rule 12(b)(6) motion must be denied with respect to this claim.

B. False Implication that the Letter was a Notice of Proposed Garnishment Required by Federal Law, 15 U.S.C. § 1692e et seq.

Biber's claim that Pioneer "falsely implied that [the Letter] was the Notice of Proposed Garnishment required under 20 U.S.C. § 1095a and 34 C.F.R. §§ 34.1-30" also survives, for essentially the same reasons to those stated above. See SAC ¶ 36; supra Parts II.A & III.A.

C. False Representation that Pioneer had Authority to Garnish Wages at the Time of the Letter, 15 U.S.C. § 1692e et seq.

For substantially similar reasons, Biber's claim that Pioneer "falsely represented [that Pioneer] had the authority to garnish wages at the time of the letter, if payment arranges were not made at that time," also survives Pioneer's Rule 12(b)(6) motion. See SAC ¶ 36(A); supra Parts II.A & III.A.

D. False Representation of the Character, Amount or Legal Status of the Debts, 15 U.S.C. § 1692e et seq.

Next, the SAC states a plausible claim that Pioneer "falsely represented the character, amount, or legal status of the debts[.]" SAC ¶ 36(B); see also 15 U.S.C. § 1692e(2)(A). In this respect, the SAC alleges sufficient facts to support a plausible claim that Pioneer falsely represented the debt's "legal status." 15 U.S.C. § 1692e(2)(A). Indeed, as noted supra Part II.D, the SAC has stated a plausible claim that the Letter falsely represents that garnishment was imminent, which is sufficient to state a claim under the FDCPA. Accordingly, for essentially the same reasons described above, Biber's § 1692e(2)(A) claim survives Pioneer's Rule 12(b)(6) challenge. See supra Parts II.A & II.D.

E. False Implication that the Letter was Legal Process, 15 U.S.C. § 1692e et seq.

As stated above, Biber lacks standing to raise his "legal process" claim, and thus there is no subject matter jurisdiction to adjudicate Pioneer's Rule 12(b)(6) motion. See supra Part II.E; S. Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) ("[A] court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits."). This claim must therefore be dismissed pursuant to Rule 12(b)(1), Fed. R. Civ. P.

F. Deprivation of Statutory Verification Rights.

Similarly, because Biber lacks standing to raise his "deprivation of statutory verification rights" claim, that claim must be dismissed pursuant to Rule 12(b)(1). See supra Part II.F; OpenBand, 713 F.3d at 185.

G. Unfair and Unconscionable Means to Collect, 15 U.S.C. § 1692f

Finally, the SAC includes a conclusory allegation that Pioneer "used unfair and unconscionable means to collect and attempt to collect from Biber and the class members, in violation of 15 U.S.C. § 1692f." SAC ¶ 36(D). This claim fails to pass muster under Rule 12(b)(6), as it is axiomatic that a § 1692f cause of action may not be based on the "same alleged misconduct that undergirds [a] § 1692e claim." Lembach, 528 Fed.Appx. at 304. Thus, courts routinely dismiss § 1692f claims where the plaintiff "does not allege any conduct in [a § 1692f claim] separate from the conduct that forms the basis of the § 1692e claims." Penn, 883 F.Supp.2d at 594. Importantly, the SAC does not allege any facts unique to his § 1692f claim. Put differently, Biber does not identify which of Pioneer's actions were "unfair and unconscionable," in violation of § 1692f, as opposed to `false, deceptive, or misleading,' in violation of § 1692e. Accordingly, pursuant to Rule 12(b)(6), Biber's § I692f claim must be dismissed.

IV.

In sum, Pioneer's Rule 12(b)(1) and 12(b)(6) motions to dismiss must be granted in part and denied in part.

Specifically, Pioneer's motion to dismiss pursuant to Rule 12(b)(1) must be granted with respect to the following claims:

The motion to dismiss pursuant to Rule 12(b)(6) must be granted with respect to the following claim:

Both the Rule 12(b)(1) and the Rule 12(b)(6) motions must be denied in all other respects.

An appropriate Order will issue.