Delgado v. Midland Credit Management, Inc.

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Diana Delgado,                         File No. 23-cv-2128 (ECT/JFD)      

     Plaintiff,                                                      

v.                                       OPINION AND ORDER                

Midland Credit Management, Inc.,                                          

     Defendant.                                                      

________________________________________________________________________  
Darren B. Schwiebert, Briol & Benson, PLLC, Minneapolis, MN, and John Michael Buhta, 
Southern Minnesota Regional Legal Services, Inc., Rochester, MN, for Plaintiff Diana 
Delgado.                                                                  
Kiralyn  Locke  and  Patrick  D.  Newman,  Bassford  Remele,  Minneapolis,  MN,  for 
Defendant Midland Credit Management, Inc.                                 
________________________________________________________________________  
Plaintiff  Diana  Delgado  brings  several  claims  under  the  Fair  Debt  Collection 
Practices  Act  (“FDCPA”)  against  Defendant  Midland  Credit  Management,  Inc.    In 
Minnesota state district court, Midland sought, and received, default judgment against 
Delgado in the amount of $1,350.56.  Now Delgado alleges that Midland’s state-court 
summons, notice of intent to enter default mailed to Delgado, and declaration of no answer 
filed in state court violated § 1692f(1), § 1692e(10), and § 1692e(10) of the FDCPA 
because the documents were inaccurate or misleading in some respect.  She also claims the 
state-court lawsuit and Midland’s related collection efforts violated § 1692f(1) of the 
FDCPA because Midland did not own the debt.  Midland moves to dismiss under Federal 
Rules of Civil Procedure 12(b)(1) and 12(c).                              
Midland’s motion will be granted.  The summons-related and notice-related FDCPA 
claims  will  be  dismissed  for  lack  of  Article  III  standing  because  Delgado  was  not 
concretely injured by the challenged conduct.  Delgado’s claim that Midland attempted to 

collect a debt it didn’t own in violation of § 1692f(1) will be dismissed because the claim 
is collaterally estopped by the state-court judgment.  And Delgado’s declaration-related 
FDCPA claims will be dismissed for failure to state a claim because the state-court 
summons was not fatally defective.                                        
                           I1                                        

On September 1, 2022, “Midland served what purported to be a Summons and 
Complaint” on Delgado.  Compl. [ECF No. 1] ¶ 20.  In relevant part, the summons reads 
as follows:                                                               
     YOU ARE BEING SUED.  Plaintiff has started a lawsuit            
     against you.  Plaintiff’s Complaint against you is attached to  
     this Summons.  Do not throw these papers away.  They are        
     official papers that affect your rights.  You must respond to this 
     lawsuit even though it may not yet be filed with the Court and  
     there may be no Court file number on this Summons.              

1    In analyzing a facial challenge to subject-matter jurisdiction under Rule 12(b)(1) or 
a Rule 12(c) motion for judgment on the pleadings, all factual allegations in the complaint 
are accepted as true and all reasonable inferences are drawn in favor of the plaintiff.  See 
Osborn v. United States, 

, 729 n.6 (8th Cir. 1990).  Accordingly, the relevant 
facts are drawn from Delgado’s Complaint and are accepted as true.  In resolving such 
motions, courts ordinarily do not consider matters outside the pleadings.  See Fed. R. Civ. 
P. 12(d); Zean v. Fairview Health Servs., 

 (8th Cir. 2017).  Courts may, 
however, “additionally consider matters incorporated by reference or integral to the claim, 
items subject to judicial notice, matters of public record, orders, items appearing in the 
record  of  the  case,  and  exhibits  attached  to  the  complaint  whose  authenticity  is 
unquestioned.”  Zean, 

 (internal quotation marks and citations omitted).  
The state-court summons, complaint, declaration, and notice are incorporated by reference 
in Delgado’s Complaint, are integral to her claim, and are matters of public record filed in 
state court.  Therefore, those filings will be considered.                
     YOU MUST REPLY WITHIN 21 DAYS TO PROTECT                        
     YOUR RIGHTS.  You must give or mail to the person who           
     signed this Summons a written response called an Answer         
     within  21  days  of  the  date  on  which  you  received  this 
     Summons.  You must send a copy of your Answer to the person     
     who signed this Summons located at Messerli & Kramer P.A.,      
     3033 Campus Drive, Suite 250, Plymouth, MN 55441.               

     . . . .                                                         

     YOU WILL LOSE YOUR CASE IF YOU DO NOT SEND                      
     A WRITTEN RESPONSE TO THE COMPLAINT TO                          
     THE PERSON WHO SIGNED THIS SUMMONS.  If you                     
     do not Answer within 21 days, you will lose this case.  You     
     will not get to tell your side of the story, and the Court may  
     decide against you and award the Plaintiff everything asked for 
     in the Complaint.  If you do not want to contest the claims     
     stated in the Complaint, you do not need to respond.  A Default 
     Judgment  can  then  be  entered  against  you  for  the  relief 
     requested in the Complaint.                                     

ECF No. 16 at 12.2  In Midland’s state-court complaint, it alleged (1) the original creditor, 
Synchrony Bank, issued a credit account number to Delgado; (2) Delgado “made purchases 
and/or received cash advances on the account”; (3) the last payment made on the account 
was received on May 21, 2019; (4) the balance of the account was $790.56; (5) Midland 
purchased the account on November 25, 2020; and (6) Midland owns the account as 
successor in interest to Synchrony Bank.  

 at 14–15.                   
On November 3, 2022, “Midland filed the Summons and Complaint in Olmsted 
County District Court, along with a Declaration of No Answer, Identification, Non-
Military Status, Amount Due and Costs and Disbursements . . ., a Notice of Intent to Apply 

2    Page citations are to a document’s CM/ECF pagination appearing in the upper right 
corner, not to a document’s original pagination.                          
for Default Judgment . . ., and a Proposed Order.”  Compl. ¶ 21.  The notice of intent is 
dated September 26, 2022, ECF No. 16 at 20, but the Complaint in this case does not allege 
whether Delgado received the notice.  See generally Compl.  In the notice, Midland 

represented that “[it] will ask the Court to enter a judgment against you without any further 
court proceedings, unless you mail a written Answer or written response contesting the 
debt within 14 days from the date below.”  Id. ¶ 34.  In its declaration of no answer, Midland 
stated Delgado had been duly served and was in default.  ECF No. 16 at 17; Compl. ¶¶ 27–
28.  The declaration further stated, “there is now due by [Delgado] to [Midland] on the debt 

set forth the amount of $790.56.”  Compl. ¶ 30.  Midland also requested costs and 
disbursements in the amount of $560.  Id. ¶ 31.                           
The state court entered default judgment against Delgado in the claimed amount of 
$1,350.56.  Compl. ¶ 43.  The judgment resulted in “harm to [Delgado’s] credit rating.”  
Id. ¶ 63.  Since the state court entered default judgment against Delgado, Midland has been 

attempting to collect on the judgment.  Id. ¶ 44.                         
On July 13, 2023, Delgado filed the Complaint.  Delgado alleges several distinct 
claims under § 1692f(1), § 1692e(5), and § 1692e(10) of the FDCPA.  Compl. ¶¶ 45–58.  
Delgado claims: (1) Midland violated § 1692f(1) by bringing the state-court suit and 
subsequently attempting to collect Delgado’s debt despite not owning the debt, id. ¶¶ 38–

42, 56; (2) Midland’s summons violated § 1692f(1), § 1692e(5), and § 1692e(10), id. 
¶¶ 25–26,  49;  (3)  Midland’s  notice  of  intent  violated  §  1692f(1),  §  1692e(5),  and 
§ 1692e(10),  id.  ¶¶  49–50;  and  (4)  Midland’s  declaration  violated  §  1692e(5)  and 
§ 1692e(10), id. ¶ 47.  Midland now moves to dismiss under Federal Rules of Civil 
Procedure 12(b)(1) and 12(c).                                             
                           II                                        

Both the jurisdictional and merits aspects of Midland’s motions are evaluated under 
the Rule 12(b)(6) standard.  Midland relies only on the Complaint and materials in the 
public  record,  meaning  it  brings  a  “facial”  challenge  to  subject-matter  jurisdiction.  
Branson Label, Inc. v. City of Branson, 

 (8th Cir. 2015).  In analyzing a 
facial challenge, a court “restricts itself to the face of the pleadings, and the non-moving 

party receives the same protections as it would defending against a motion brought under 
Rule 12(b)(6).”  Osborn v. United States, 

, 729 n.6 (8th Cir. 1990) (citations 
omitted).  “A claim has facial plausibility when the plaintiff pleads factual content that 
allows the court to draw the reasonable inference that the defendant is liable for the 
misconduct alleged.”  Ashcroft v. Iqbal, 

 (2009).        

A Rule 12(c) motion for judgment on the pleadings is assessed under the same 
standard as a Rule 12(b)(6) motion.  Ashley Cnty. v. Pfizer, Inc., 

 (8th 
Cir. 2009).  Under the familiar Rule 12(b)(6) standard, a court must accept as true all of 
the factual allegations in the complaint and draw all reasonable inferences in the plaintiff’s 
favor.  Gorog v. Best Buy Co., Inc., 

 (8th Cir. 2014) (citation omitted).  

Although the factual allegations need not be detailed, they must be sufficient to “raise a 
right to relief above the speculative level.”  Bell Atl. Corp. v. Twombly, 

 
(2007) (citation omitted).  The complaint must “state a claim to relief that is plausible on 
its face.”  

.  “A claim has facial plausibility when the plaintiff pleads factual 
content that allows the court to draw the reasonable inference that the defendant is liable 
for the misconduct alleged.”  Iqbal, 

.                     
                          III                                        

                           A                                         
                           1                                         
Although the parties did not brief Article III standing, it is necessary to start there.  
The United States Constitution limits the subject-matter jurisdiction of federal courts to 
ongoing cases and controversies.  See U.S. Const. art. III, § 2, cl. 1.  Article III standing “is 

a  jurisdictional  prerequisite  and  thus  a  threshold  issue  that  [a  court  is]  obligated  to 
scrutinize, sua sponte if need be.”  Bernbeck v. Gale, 

 (8th Cir. 2016) 
(internal quotation marks and citation omitted).  “To show Article III standing, a plaintiff 
has the burden of proving: (1) that he or she suffered an ‘injury-in-fact,’ (2) a causal 
relationship between the injury and the challenged conduct, and (3) that the injury likely 

will be redressed by a favorable decision.”  Steger v. Franco, Inc., 

, 892 (8th 
Cir. 2000) (quoting Lujan v. Defs. of Wildlife, 

, 560–61 (1992)).  A plaintiff 
must demonstrate standing “with the manner and degree of evidence required at the 
successive stages of the litigation.”  Lujan, 

.  “And standing is not dispensed 
in gross; rather, plaintiffs must demonstrate standing for each claim that they press and for 

each form of relief that they seek.”  TransUnion LLC v. Ramirez, 

 (2021). 
To establish an injury in fact, a plaintiff must show “an invasion of a legally 
protected interest” that is “concrete and particularized” and “actual or imminent.”  Lujan, 

.  The Supreme Court has explained in some detail what makes an injury 
“concrete” for Article III’s purposes.  See, e.g., Ramirez, 594 U.S. at 424–30.  A “concrete” 
injury is “real, and not abstract.”  Spokeo, Inc. v. Robins, 

 (2016) (cleaned 
up).  Complaints that allege “economic or physical harms” are almost always no-doubters.  

Hein  v.  Freedom  from  Religion  Found.,  Inc.,  

  (2007)  (Souter,  J., 
dissenting).  This is true even if the alleged harm is “only a few pennies.”  Wallace v. 
ConAgra Foods, Inc., 

 (8th Cir. 2014).  “Various intangible harms can 
also be concrete,” though they also may present more difficult and closer calls.  Ramirez, 

.  As the Court explained in Spokeo in the context of federal statutory 

claims:                                                                   
     In determining whether an intangible harm constitutes injury    
     in  fact,  both  history  and  the  judgment  of  Congress  play 
     important roles.  Because the doctrine of standing derives from 
     the  case-or-controversy  requirement,  and  because  that      
     requirement in turn is grounded in historical practice, it is   
     instructive to consider whether an alleged intangible harm has  
     a  close  relationship  to  a  harm  that  has  traditionally  been 
     regarded  as  providing  a  basis  for  a  lawsuit  in  English  or 
     American  courts.    In  addition,  because  Congress  is  well 
     positioned to identify intangible harms that meet minimum       
     Article III requirements, its judgment is also instructive and  
     important.    Thus,  we  said  in  Lujan  that  Congress  may   
     “elevat[e] to the status of legally cognizable injuries concrete, 
     de  facto  injuries  that  were  previously  inadequate  in  law.”  
     Similarly,  Justice  Kennedy’s  concurrence  in  that  case     
     explained that “Congress has the power to define injuries and   
     articulate chains of causation that will give rise to a case or 
     controversy where none existed before.”                         

578 U.S. at 340–41 (citations omitted).  Examples of “harms traditionally recognized as 
providing a basis for lawsuits in American courts . . . include, for example, reputational 
harms, disclosure of private information, and intrusion upon seclusion.”  Ramirez, 

.  In the context of an alleged federal statutory violation, the task, as I understand it, 
is to examine the plaintiff’s injury allegations and determine whether they have a “close 
relationship” to a harm traditionally recognized as the basis for a case under the common 

law.  Spokeo, 

; see also Braitberg v. Charter Commc’ns, Inc., 

, 
930–31 (8th Cir. 2016).3                                                  
                           2                                         
                           a                                         
Start with Delgado’s claim that Midland violated § 1692f(1) by attempting to collect 

the $790.56 debt despite not owning the debt.  Delgado plausibly alleges both tangible and 
intangible harms fairly traceable to Midland’s attempts to collect the debt.  Midland’s state-
court debt-collection efforts resulted in a money judgment with a related harm to Delgado’s 
credit rating.  Compl. ¶ 63.  “Several courts have found that diminution of credit score 
confers standing as a financial harm that impacts a consumer’s economic condition.”  

Norman v. Trans Union, LLC, 

, 371 (E.D. Pa. 2023) (collecting cases).  

3    Some post-Spokeo but pre-Ramirez cases hold that any violation of § 1692e or 
§ 1692f is a concrete injury.  See, e.g., Gause v. Med. Bus. Consultants, Inc., 

, 1198 (M.D. Fla. 2019) (“An overwhelming majority of courts have determined 
sections 1692e and 1692f of the FDCPA provide substantive rights to consumers that 
necessarily protect their Congressionally recognized, concrete interests in being free from 
abusive debt collection practices, and that violations of the statutes’ provisions therefore 
give rise to concrete injuries sufficient to confer Article III standing.”).  But Ramirez 
clarified that “plaintiffs must show that the statutory violation caused them a concrete 
harm, regardless of whether the statutory rights violated were substantive or procedural.”  
Maddox v. Bank of N.Y. Mellon Tr. Co., N.A., 

, 64 n.2 (2d Cir. 2021); see also 
Perez v. McCreary, Veselka, Bragg & Allen, P.C., 

 (5th Cir. 2022) 
(rejecting the distinction between substantive and procedural statutory rights).  In other 
words, a violation of the FDCPA, without more, is not enough for a plaintiff to have Article 
III standing.                                                             
The judgment and diminution of credit score are particularized to Delgado and were caused 
by Midland’s debt-collection efforts.                                     
To decide whether Delgado’s intangible injury allegations are sufficient, Demarais 

v. Gurstel Chargo, P.A., 

 (8th Cir. 2017), is instructive.  In Demarais, a debt 
collector dismissed its case against a consumer with prejudice, but later sent a letter 
attempting to collect the same debt, serving the consumer with interrogatories and stating 
that the consumer was required to respond within 30 days.  

.  The Eighth Circuit 
found the consumer had standing to sue under the FDCPA because the debt collector’s 

attempt to collect the dismissed debt bore a close relationship with unjustifiable-litigation 
torts.  

 at 691–92.  As the Eighth Circuit explained, “[w]ith § 1692f(1), Congress 
identified a harm—being subjected to attempts to collect debts not owed.”  Id. at 691.  That 
harm “is similar to the harm suffered by victims of the common-law torts of malicious 
prosecution, wrongful use of civil proceedings, and abuse of process.”  Id.  “In light of the 

similarities between [the consumer’s] alleged harm and traditionally recognized harms, and 
Congress’s judgment that attempts to collect debts not owed cause real injuries,” the Eighth 
Circuit found that the debt collector’s attempt to collect the dismissed debt caused the 
consumer a concrete injury in fact.  Id. at 692.                          
Some language in Demarais could be construed broadly.  For example, “[the debt 

collector’s] alleged invasion of [the consumer’s] § 1692f(1) rights is a concrete injury in 
fact,” id. at 693, could be read to mean that any violation of § 1692f(1) is a concrete injury 
because violations of the statute create real risks of harm.  However, Ramirez cautions 
against such a wholesale approach.  See Ramirez, 594 U.S. at 426–27.  And since Ramirez, 
the Eighth Circuit has framed Demarais more narrowly, explaining that in Demarais “the 
debtor’s FDCPA claims, including claims of mental distress, . . . bore a close relationship 
to ‘common-law unjustifiable-litigation torts.’”  Ojogwu v. Rodenburg L. Firm, 

 (8th Cir. 2022) (quoting Demarais, 869 F.3d at 691–92).  Therefore, I understand 
Demarais to hold that being subject to attempts to collect a debt not owed is an intangible 
harm sufficient to confer Article III standing when the underlying facts bear a sufficiently 
close relationship to a common-law unjustifiable-litigation tort.4        
Here,  Midland’s  suit  against  Delgado  without  owning  the  debt  bears  a  close 

relationship to the well-recognized tort of the wrongful use of civil proceedings.  See 
Viernes v. DNF Assocs., LLC, 

, 750 (D. Haw. 2022) (“There is a close 
relationship between being subjected to an unlawful lawsuit and the four elements of 
wrongful civil proceedings.”).  Viernes’s element-by-element analysis of an FDCPA claim 
is persuasive here.  

 at 749–52.  Moreover, the facts alleged in this case bear a closer 

relationship with the tort of wrongful use of civil proceedings than what the Eighth Circuit 

4    Cases have framed the intangible injury in Demarais differently.  Compare Thome 
v. Sayer L. Grp., P.C., 

, 1071 (N.D. Iowa 2021) (“Accordingly, the 
Demarais Court found the plaintiff's emotional distress was a concrete injury.”), and 
Ojogwu, 

 (describing Demarais as “including claims of mental distress”), 
with Buchholz v. Meyer Njus Tanick, PA, 

 (6th Cir. 2020) (describing the 
harm as “being asked to pay a debt not owed”), Hrdlicka v. Bruce, No. 3:21-cv-00033-
GFVT, 

, at *4 (E.D. Ky. May 11, 2022) (describing the harm as the 
attempt to collect the debt), and Mayfield v. Portfolio Recovery Assocs., LLC, 

, 682 (D. Minn. 2021) (same).  Demarais did not discuss any specific allegations of 
emotional distress or claims of mental distress.  See generally Demarais, 

.  
Instead, it framed “the harm of being subjected to baseless legal claims” as the intangible 
harm sufficient to confer Article III standing.  

 at 691–92.  Therefore, Delgado need not 
allege emotional harm (or some other intangible injury) to have been concretely injured by 
Midland’s attempts to collect a debt not owed.                            
found  sufficient  in  Demarais.    Therefore,  Delgado  has  Article  III  standing  to  claim 
Midland’s attempt to collect a debt it did not own violated § 1692f(1).   
                           b                                         

Turn  next  to  Delgado’s  claim  that  Midland’s  state-court  summons  violated 
§ 1692f(1), § 1692e(5), and § 1692e(10).  Delgado claims the summons was “contrary to” 
Minnesota Rule of Civil Procedure 5.02(a)(2), Compl. ¶¶ 25–26, falsely threatened that 
Midland would obtain default judgment, id. ¶ 46, and misrepresented how Delgado was 
required to respond, id.  According to Delgado, all three claims rest on Midland misleading 

her “about her rights under Minnesota law by making misrepresentations in a summons 
that she was required to mail a written answer.”  Pl.’s Mem. in Opp’n [ECF No. 29] at 2.5  
Because the challenged conduct is closely related, it makes sense to analyze Delgado’s 
standing to bring all three claims together.                              
Although  fairly  debatable,  the  better  answer  is  that  Delgado  lacks  Article  III 

standing to bring her summons-related FDCPA claims.  Delgado does not allege any 
tangible harms fairly traceable to the challenged conduct.  Although the judgment and 
subsequent hit to her credit score are concrete injuries, those tangible harms are not fairly 
traceable  to  the  alleged  violation  of  Rule  5.02(a)(2),  threat  of  default  judgment,  or 





5    Delgado’s § 1692e(5) claim also rests upon a subsequent statement: “YOU WILL 
LOSE YOUR CASE IF YOU DO NOT SEND A WRITTEN RESPONSE[.]”  Compl. ¶        
24.                                                                       
representation that Delgado must send a response.  Thus, the only possible injuries are 
intangible.                                                               
Delgado alleges “an informational injury [because the summons] misled her with 

regard to the rules governing her response to the claim against her.”  Compl. ¶ 51.  Although 
an informational injury may be a concrete injury, see Fed. Election Comm’n v. Akins, 

, (1998); Pub. Citizen v. Dep’t of Just., 

 (1989), as the Supreme Court 
emphasized in Ramirez, Delgado must identify “‘downstream consequences’ from failing 
to receive the . . . information.”  Ramirez, 

 (quoting Trichell v. Midland 

Credit Mgmt., Inc., 

, 1004 (11th Cir. 2020)). “An ‘asserted informational 
injury that causes no adverse effects cannot satisfy Article III.’”  

 (quoting Trichell, 964 
F.3d at 1004).  Here, Delgado’s allegation that she was misled is conclusory, and therefore 
insufficient to demonstrate downstream, adverse effects.  Nor is there reason to infer an 
adverse effect without any factual allegations that Delgado read the summons, believed she 

had to mail her answer, and acted upon such a belief.  Delgado’s alleged informational 
injury is not concrete.                                                   
Turning to the close relationship test, it makes sense to start with the tort of 
fraudulent  misrepresentation  because  this  tort  usually  offers  the  closest  historical 
comparison to a § 1692e claim.  See Trichell, 964 F.3d at 998.  “[I]n the FDCPA context, 

it is not sufficient for a debtor’s standing that Congress sought to protect all debtors from 
the receipt of false or misleading information from debt collectors; each plaintiff asserting 
a  §  1692e  violation  must  establish  that  ‘the  harm  [she  suffered]  from  a  misleading 
statement of this kind bears a sufficiently close relationship to the harm from [fraudulent 
misrepresentation].’”  Huber v. Simon’s Agency, Inc., 

 (3d Cir. 2023) 
(alterations in original) (quoting Ramirez, 

).  “Fraudulent misrepresentation 
recognizes harm flowing from plaintiffs’ reasonable reliance on a misrepresentation.”  

Bassett v. Credit Bureau Servs., Inc., 

 (8th Cir. 2023).  Therefore, for 
alleged  harms  to  bear  a  sufficiently  close  relationship  with  the  tort  of  fraudulent 
misrepresentation, a plaintiff must allege an injury caused by reliance on a misleading 
representation.  Id.; Trichell, 964 F.3d at 998; Morales v. Commonwealth Fin. Sys., Inc., 
No. 22-3388, 

, at *2 (3d Cir. Nov. 22, 2023); Shields v. Pro. Bureau of 

Collections of Md., Inc., 

 (10th Cir. 2022).  Because Delgado has not 
alleged any reliance on Midland’s representations or threat to obtain a default in the 
summons, see generally, Compl., the analogy to the tort of fraudulent misrepresentation 
fails.                                                                    
The remaining possible analogous torts are the wrongful use of civil proceedings 

and abuse of process.  Unlike Demarais, the comparison falls short here.  The tort of 
wrongful use of civil proceedings has the following four elements:        
     One who [(1)] takes an active part in the initiation, continuation 
     or procurement of civil proceedings against another is subject  
     to liability to the other for wrongful civil proceedings if [(2)] 
     he  acts  without  probable  cause,  and  [(3)]  primarily  for  a 
     purpose other than that of securing the proper adjudication of  
     the claim in which the proceedings are based, and [(4)] except  
     when they are ex parte, the proceedings have terminated in      
     favor of the person against whom they are brought.              
Silver v. Mendel, 

, 604 n.9 (3d Cir. 1990) (quoting Restatement (Second) of 
Torts § 674 (

 Update)); see also Hernon v. Revere Copper & Brass, Inc., 

 (8th Cir. 1974) (quoting similar elements from the first Restatement of 
Torts).  “The tort of malicious prosecution  lies  to  compensate an individual who is 
maliciously hailed into court and forced to defend against a fabricated cause of action.”  

Pace v. Hillcrest Motor Co., 

 (Cal. Ct. App. 1980).  The majority 
rule “does not require any showing of special injury to prevail in a malicious prosecution 
action.”  8 Stuart M. Speiser et al., American Law of Torts § 28:28 (Feb. 2024 Update); 
Restatement (Second) of Torts §§ 674, 681 (

 Update); Dan B. Dobbs et al., 
The Law of Torts § 593 (2d ed. May 2023 Update) (“According to most counts, a majority 

of American courts allow the plaintiff to pursue the wrongful civil litigation claim without 
showing any special kind of injury.”).  Because a wrongful-use-of-civil-proceedings claim 
does not require special damages, it is fair to conclude that being subject to wrongful civil 
proceedings is a “harm[] traditionally recognized as providing a basis for lawsuits in 
American courts.”  Ramirez, 

.  Therefore, a plaintiff bringing suit under the 

FDCPA may, as in Demarais, satisfy Article III by analogizing the facts of the alleged 
statutory violation to unjustified-litigation torts, including the tort of wrongful use of civil 
proceedings.                                                              
But  in  this  case,  the  analogy  quickly  flounders.    Delgado’s  summons-related 
FDCPA claims are premised on (1) a violation of the Minnesota Rules of Civil Procedure; 

(2) a false threat; and (3) a misrepresentation.  The challenged conduct all relates to a single 
component of a lawsuit, not the decision to start or continue a lawsuit.  The type of harm 
flowing from defects and misrepresentations in a summons is different than the type of 
harm found in a wrongful-use-of-civil-proceedings claim where damages are expected to 
flow  from  defending  and  being  subject  to  a  baseless  lawsuit.    And  violating  or 
misrepresenting Rule 5.02(a)(2) has nothing to do with Midland’s probable cause to bring 
the state-court suit.  Nor do the factual allegations allow an inference that Midland’s 

summons-related FDCPA violations were the result of an improper purpose.  Examples of 
improper purposes include malice, harassment, or delay.  Restatement (Second) of Torts 
§ 676(c) (

 Update).  Given Delgado failed to allege an improper purpose, 
see generally Compl., and Midland did not alter the challenged language taken from a 
court-form summons, it is neither alleged nor plausible that Midland’s representations in 

the summons were the product of an improper purpose.6  Where, as here, the challenged 
conduct occurred within a lawsuit, the challenged conduct is unrelated to the defendant’s 
probable cause to bring the suit, the plaintiff has not identified an improper purpose, and 
there remains a state-court judgment entered in favor of the defendant, the facts do not bear 
a close relationship to the tort of wrongful use of civil proceedings.    

Abuse of process is no better an analog.  The elements of abuse of process are: 
“(1) an ulterior purpose and (2) an act in the use of process which is improper in the regular 
prosecution of the proceeding.”  Van Vleck v. Leikin, Ingber, & Winters, P.C., No. 22-
1859, 

, at *5 (6th Cir. Apr. 27, 2023) (quoting Jordan v. Nat’l City Bank, 
No. 309428, 

, at *13 (Mich. Ct. App. Mar. 25, 2014)).  The misconduct 


6    In Viernes, the court found the fourth element “ill-suited for analogy, considering 
the three purposes behind that element.”  582 F. Supp. 3d at 751.  But one of those purposes, 
preventing  parallel  litigation,  is  “grounded  in  the  aversion  to  collateral  attacks  on 
judgments through civil-tort vehicles.”  Id. at 752.  That purpose remains relevant here, 
where there is a state-court judgment that Delgado has declined to attack.  To the extent 
the termination-in-favor-of element applies, it weighs against finding a close relationship. 
“is not the wrongful procurement of legal process or the wrongful initiation of criminal or 
civil proceedings; it is the misuse of process, no matter how properly obtained, for any 
purpose other than that which it was designed to accomplish.”  Restatement (Second) of 

Torts § 682(a) (

 Update).  “The usual case of abuse of process is one of 
some form of extortion, using the process to put pressure upon the other to compel him to 
pay a different debt or to take some other action or refrain from it.”  Restatement (Second) 
of Torts § 682(b) (

 Update).  Here, there are no allegations (or reason to 
infer) that Midland’s summons was drafted or served with an improper ulterior purpose.  

See generally, Compl.  And because such an improper purpose is at the heart of an abuse 
of process claim, the comparison fails.  Van Vleck, 

, at *5 (“That the 
[court-form summons] did not disclose the Michigan Supreme Court’s suspension [of the 
21-day deadline to respond to the complaint] does not permit drawing an inference that 
[the  defendant’s]  ulterior  purpose  was  to  obscure  the  suspension.    [The  plaintiff’s] 

allegation therefore falls short of resembling the common law tort of abuse of process.”).  
Because Delgado’s summons-related FDCPA claims do not bear a sufficiently close 
relationship to a common-law tort, she lacks Article III standing to bring these claims. 
                           c                                         
Delgado also brings § 1692f(1), § 1692e(5), and § 1692e(10) claims related to 

Midland’s notice of intent to enter a default.  She claims that the statement, “[Midland] will 
ask the Court to enter a judgment against you without any further court proceedings, unless 
you mail a written Answer or written response,” is (1) “contrary to” Minnesota Statute 
§ 548.101, Compl. ¶ 49; (2) a false threat to seek default judgment, id. ¶ 48; and (3) 
misrepresents Rule 5.02(a)(2), id.                                        
Delgado’s notice-related claims run into the same problem as her summons-related 

claims.  Delgado alleges no tangible harms fairly traceable to the alleged violation of 
Minnesota law, false threat, or misrepresentations in the notice.  Any informational injury 
is inadequately pleaded because there are no factual allegations of downstream, adverse 
consequences.  Delgado does not allege an injury bearing a close relationship to the tort of 
fraudulent misrepresentation because Delgado does not allege reliance on any aspect of the 

notice.  The tort of wrongful use of civil proceedings does not bear a close relationship to 
the facts of this case because the challenged conduct occurred within a lawsuit and is 
unrelated to Midland’s probable cause to bring the state-court suit, Delgado has not alleged 
an improper purpose, and there remains a state-court judgment entered in favor of Midland.  
And there is no close relationship with the tort of abuse of process because Delgado has 

not pleaded Midland drafted, served, or filed the notice with an improper purpose.  Nor is 
there reason to infer an improper purpose when Midland’s notice matches the language in 
Minnesota  Statute  §  548.101’s  statutory  template.    Without  a  concrete  injury  fairly 
traceable  to  Midland’s  notice-related  challenged  conduct,  Delgado  lacks  Article  III 
standing to bring her notice-related FDCPA claims.                        

                           d                                         
Finally, Delgado brings § 1692e(5) and § 1692e(10) claims based on Midland’s 
representations in a declaration to the state court that Delgado had been duly served and 
was in default.  Because Delgado suffered tangible harm from the judgment and related 
harm to her credit score, the question is whether the state-court judgment is fairly traceable 
to  Midland’s  representations.    For  Delgado’s  injury  to  be  fairly  traceable,  she  must 
“[allege] a sufficiently direct causal connection between the challenged action and the 

identified harm” that “cannot be overly attenuated.”  AGRED Found. v. United States Army 
Corps of Eng’rs, 

 (8th Cir. 2021).  The injury must “not [be] the result 
of the independent action of some third party not before the court.’”  

 (quoting Lujan, 

).  But the actions of a third party in the chain of causation do not always 
break that causal chain.  Dep’t of Com. v. New York, 588 U.S. ----, 

 

(2019).  An injury may be “produced by determinative or coercive effect upon the action 
of someone else.”  Bennett v. Spear, 

 (1997).  It can be enough if “third 
parties will likely react in predictable ways” to the challenged action.  Dep’t of Com., 588 
U.S. ----, 

.                                            
Although the state-court judge, a third party, entered the judgment, the judgment is 

fairly traceable to Midland’s representations that Delgado was duly served.  Delgado 
alleges that “the [state court], relying on Midland’s false and misleading statements, 
entered default judgment against . . . Delgado on in [sic] the claimed amount of $1,350.56.”  
Compl. ¶ 43.  And this reliance is plausible because service of process is required for a 
court to enter default judgment.  Laymon v. Minn. Premier Props., LLC, 

, 

19–20  (Minn.  Ct.  App.  2017).    Therefore,  the  state  court’s  default  judgment  was  a 
predictable result of Midland’s representations that Delgado had been duly served, and it 
is fair to conclude the judgment and diminution in credit score are fairly traceable to 
Midland’s representations.  Delgado thus has standing to challenge Midland’s alleged 
misrepresentations in the declaration as violations of § 1692e(5) and § 1692e(10). 
                           B                                         

Midland argues all of Delgado’s claims should be dismissed under the Rooker-
Feldman doctrine.  “In the two decisions for which the doctrine is named, Rooker v. Fidelity 
Trust Co., 

 (1923), and District of Columbia Court of Appeals v. Feldman, 

 (1983), the Court established the narrow proposition that with the exception 
of habeas corpus proceedings, the inferior federal courts lack subject-matter jurisdiction 

over ‘cases brought by state-court losers complaining of injuries caused by state-court 
judgments rendered before the district court proceedings commenced and inviting district 
court review and rejection of those judgments.’”  In re Athens/Alpha Gas Corp., 

 (8th Cir. 2013) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 

 (2005)).  “This conclusion follows from 

, which grants to the 

Supreme Court exclusive jurisdiction over appeals from state-court judgments.”  Id.; see 
also Exxon Mobil, 

 (“Federal district courts . . . are empowered to exercise 
original, not appellate, jurisdiction.”).  In Exxon Mobil, the Supreme Court noted that 
inferior federal courts had sometimes applied the Rooker-Feldman doctrine too broadly, 
“overriding Congress’ conferral of federal-court jurisdiction concurrent with jurisdiction 

exercised by state courts, and superseding the ordinary application of preclusion law 
pursuant to 

,” the Full Faith and Credit Act.  Exxon Mobil, 

.  To check the lower federal courts’ enthusiasm for the Rooker-Feldman doctrine, the 
Supreme Court made clear that the doctrine applies only to cases filed in federal court by 
the  losing  party  in  state  court  “complaining  of  an  injury  caused  by  the  state-court 
judgment”  that  “call[]  upon  the  District  Court  to  overturn  an  injurious  state-court 
judgment.”  

, 291–92.  Importantly, the Court also explained that § 1257 does not 

“stop a district court from exercising subject-matter jurisdiction simply because a party 
attempts to litigate in federal court a matter previously litigated in state court.  If a federal 
plaintiff ‘present[s] some independent claim, albeit one that denies a legal conclusion that 
a state court has reached in a case to which he was a party . . ., then there is jurisdiction and 
state law determines whether the defendant prevails under principles of preclusion.’”  Id. 

at 293 (quoting GASH Assocs. v. Rosemont, 

 (7th Cir. 1993)). 
Some cases present straightforward Rooker-Feldman questions while others are 
more difficult.  See Athens/Alpha, 

 (observing that “the scope of the Rooker-
Feldman doctrine, even as narrowly described in Exxon Mobil, is sometimes fuzzy on the 
margins”); Dodson v. Univ. of Ark. for Med. Scis., 

, 756 (8th Cir. 2010) 

(Melloy, J. concurring) (“Indirect appeals from state-court judgments have been more 
controversial[.]”).  Examples are instructive.  Consider Caldwell v. DeWoskin, 

 (8th Cir. 2016).  There, the plaintiff, Caldwell, sued his ex-wife (Lavender) and her 
attorney (DeWoskin) in a federal district court alleging they had violated the automatic 
stay by continuing to seek enforcement of a judgment of dissolution against Caldwell, 

including  contempt  sanctions,  in  Missouri  state  court  after  Caldwell  had  filed  for 
bankruptcy.  

 at 1006–08.  The Missouri state court “decided the automatic stay did not 
prevent it from holding Caldwell in contempt, and so held.”  

.  The Missouri 
Court of Appeals later reversed the contempt judgment on grounds other than the automatic 
stay.    

    The  federal  district  court  entered  summary  judgment  against  Caldwell, 
determining that it lacked subject-matter jurisdiction under the Rooker-Feldman doctrine, 

, and the Eighth Circuit reversed, 

 at 1008–09.  The Eighth Circuit explained: 

“Whether the doctrine applies depends on whether a federal plaintiff seeks relief from a 
state court judgment based on an allegedly erroneous decision by a state court—in which 
case the doctrine would apply—or seeks relief from the allegedly illegal act or omission of 
an adverse party.”  

 at 1008 (citing Hageman v. Barton, 

 (8th Cir. 
2016)).  Caldwell sought only “compensation for injuries he allege[d] were caused by the 

actions DeWoskin and Lavender took to enforce the state court’s [judgment] after the 
automatic stay was in place.”  Id. at 1009.  The Eighth Circuit concluded that “Caldwell’s 
claims are not barred by Rooker-Feldman because they challenge the actions taken by 
DeWoskin and Lavender ‘in seeking and executing the [state contempt orders],’ rather than 
the state court orders themselves.”  Id. (quoting Riehm v. Engelking, 

 

(8th Cir. 2008); see also Hageman, 

 (recognizing that the Rooker-Feldman 
doctrine “is limited in scope and does not bar jurisdiction over actions alleging independent 
claims arising from conduct in underlying state proceedings”); Robins v. Ritchie, 

 (8th Cir. 2011) (recognizing that Rooker-Feldman applies “if the federal claims 
can succeed only to the extent the state court wrongly decided the issues before it.”). 

Midland argues that Delgado’s FDCPA action is inextricably intertwined with the 
state-court  judgment  because  “to  enter  a  judgment  in  [Delgado’s]  favor  here  would 
fundamentally conflict with the factual findings based on evidentiary submissions in the 
Collection Action.”  Def.’s Mem. in Supp. [ECF No. 15] at 14.  But since Exxon, courts 
have generally found FDCPA claims to be independent claims, not collateral attacks on the 
state court action.  Hageman v. Barton, 

 (8th Cir. 2016); Janson v. 
Katharyn B. Davis, LLC, 

 (8th Cir. 2015); Ness v. Gurstel Chargo, P.A., 

 (D. Minn. 2013) (“Consequently, Rooker–Feldman does not 
bar an FDCPA claim challenging only a defendant’s debt-collection practices, without 
challenging the validity of the state-court judgment.”); Wyles v. Excalibur I, LLC, No. 05-
cv-2798 (JRT/JJG), 

, at *2 (D. Minn. Sept. 7, 2006) (“Because an 
FDCPA plaintiff is not challenging the validity of the debt, but rather the collection 

practices of the creditor, a claim under the FDCPA is an ‘independent claim’ from a state 
court action to collect a debt, and Federal courts have jurisdiction over the case.”).  FDCPA 
claims are typically independent because an FDCPA plaintiff challenges an opposing 
party’s debt collection practices and thus “seeks relief from the allegedly illegal act or 
omission of an adverse party.”  Caldwell, 

.               

That  general  rule  applies  here.    Delgado’s  FDCPA  claims  attack  Midland’s 
summons, declaration, notice, and attempts to collect a debt not owned.  Delgado’s FDCPA 
claims are not a collateral attack because they challenge “the collection practices of the 
creditor.”  Wyles, 

, at *2.  Rooker-Feldman does not prohibit Delgado’s 
FDCPA claims that “seek[] statutory penalties based on [a defendant’s] actions in the 

process of obtaining the judgment and order.”  Hageman, 

.  
                          IV                                         
                           A                                         
Turning to the Rule 12(c) issues, Midland argues that Delgado’s claims are barred 

by issue preclusion and claim preclusion.  When applying claim preclusion, also known as 
res judicata, “[t]he law of the forum that rendered the first judgment controls.”  Ashanti v. 
City of Golden Valley, 

 (8th Cir. 2012) (quoting Laase v. Cnty. of 
Isanti, 

 (8th Cir. 2011)).  A later claim is barred under Minnesota law 
“where ‘(1) the earlier claim involved the same set of factual circumstances; (2) the earlier 

claim involved the same parties or their privies; (3) there was a final judgment on the 
merits; (4) the estopped party had a full and fair opportunity to litigate the matter.’”  St. 
Paul Fire & Marine Ins. Co. v. Compaq Comput. Corp., 

 (8th Cir. 2008) 
(quoting  Hauschildt  v.  Beckingham,  

  (Minn.  2004)).    Claim 
preclusion does not depend on the legal theories identified in the complaint, rather, “[a] 

claim or cause of action is ‘a group of operative facts giving rise to one or more bases for 
suing.’”  Hauschildt, 

 (quoting Martin ex rel. Hoff v. City of Rochester, 

 (Minn. 2002)).                                            
Here, Delgado’s unpaid debt and Midland’s purchase of that debt are the operative 
facts in Midland’s state-court complaint.  ECF No. 16 at 14–15.  By contrast, the operative 

facts of Delgado’s Complaint in this case are Midland’s attempts to collect the debt in the 
state-court case.  See Compl. ¶¶ 45–58.  Because “the claims in this case are centered on 
[Midland’s] conduct in the state-court action,” the claims “could not have been raised in 
that case, and [Delgado] is free to raise them for the first time here.”  Heroux v. Callidus 
Portfolio Mgmt. Inc., No. 17-cv-5132 (DSD/HB), 

, at *3 (D. Minn. May 
1, 2018).  Delgado’s claim that Midland attempted to collect the debt despite not owning 
the debt—in violation of § 1692f(1)—has significant factual overlap with the state-court 

case.  But there are important distinctions.  Delgado’s FDCPA claim requires her to prove 
Midland attempted to collect the debt.  And the claims arose at different times: “[I]f the 
right to assert the second claim did not arise at the same time as the right to assert the first 
claim, then the claims cannot be considered the same cause of action.”  Care Inst., Inc.-
Roseville v. Cnty. of Ramsey, 

 (Minn. 2000); see also Hauschildt, 

 (noting “the right to assert a claim based on the 1998 acts and omissions 
arose after the right to a claim arose based on the 1992 distribution”).  Midland’s claim 
first arose when Delgado failed to pay the debt (and it purchased the debt), while Delgado’s 
claim only arose when Midland attempted to collect the debt by filing the state-court 
lawsuit.                                                                  

A slightly different result is merited under collateral estoppel.  “Under Minnesota 
law, collateral estoppel is appropriate when the following four elements are met: (1) the 
issue [is] identical to one in a prior adjudication; (2) there was a final judgment on the 
merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; 
and (4) the estopped party was given a full and fair opportunity to be heard on the 

adjudicated issue.”  Ill. Farmers Ins. Co. v. Reed, 

 (Minn. 2003) 
(quotation omitted).  Regarding the first element, “[t]he issue on which collateral estoppel 
is to be applied must be the same as that adjudicated in the prior action and it must have 
been necessary and essential to the resulting judgment in that action.”  Hauschildt, 

 (citing Ellis v. Minneapolis Comm’n on Civil Rights, 

 
(Minn. 1982), and Hauser v. Mealey, 

 (Minn. 1978)).  “The party 
asserting  collateral  estoppel  has  the  burden  to  establish  that  ‘the  issue  was  actually 

presented and necessarily determined in the earlier action.’”  Mach v. Wells Concrete 
Prods. Co., 

 (Minn. 2015) (quoting Lange v. City of Byron, 

 (Minn. 1977)).  Issue preclusion in Minnesota is not “rigidly applied,” 
rather, “the focus is on whether its application would work an injustice on the party against 
whom estoppel is urged.”  Falgren v. Bd. of Teaching, 

 (Minn. 1996) 

(quoting Johnson v. Consol. Freightways, Inc., 

, 613–14 (Minn. 1988)). 
Midland’s ownership of the debt satisfies all four elements.  “A default judgment 
may  operate  as  a  final  judgment  on  the  merits  for  collateral-estoppel  purposes.”  
S. Robideau Const., Inc. v. Hiber, No. A16-0451, 

, at *2 (Minn. Ct. App. 
Aug. 29, 2016) (citing Roberts v. Flanagan, 

, 886–87 (Minn. Ct. App. 

1987)).  And the parties here are the same as the parties in the state-court action.  Although 
the  first  element  requires  an  identical  issue  to  be  actually  litigated  and  necessarily 
determined, default judgments are nonetheless  “collateral estoppel as to those issues 
pleaded in the complaint.”  In re Gibson, 

 (Bankr. W.D. Wis. 2014) 
(quoting Roberts v. Flanagan, 

, 886–87 (Minn. Ct. App. 1987)).  It makes 

no difference if a defendant failed to interpose a defense in the action.  

 (citing North 
Tel, Inc. v. Brandl, 

 (Bankr. D. Minn. 1995)).  In the state-court 
complaint, Midland alleged it purchased and owned the debt.  ECF No. 16 at 13–14.  And 
Midland’s ownership of the debt was a fact essential to granting the default judgment in 
Midland’s favor.  As for the fourth element, Delgado argues defective service of process 
interfered with her full and fair opportunity to be heard.  But Delgado’s allegations that 
service was defective are conclusory.  And as will be explained when addressing the merits 

of Delgado’s FDCPA claims, representations in the summons did not render it fatally 
defective.  Therefore, Delgado is collaterally estopped from bringing an FDCPA claim 
premised on the fact that Midland did not own the debt.                   
                           B                                         
                           1                                         

Now turn to the merits of Delgado’s FDCPA claims.  Under 15 U.S.C. § 1692f, debt 
collectors are prohibited from:                                           
     us[ing] unfair or unconscionable means to collect or attempt to 
     collect any debt.  Without limiting the general application of  
     the foregoing, the following conduct is a violation of this     
     section:                                                        

     (1) The collection of any amount (including any interest, fee,  
     charge, or expense incidental to the principal obligation) unless 
     such amount is expressly authorized by the agreement creating   
     the debt or permitted by law.                                   

Under the relevant statutory provisions in § 1692e:                       
     A  debt  collector  may  not  use  any  false,  deceptive,  or  
     misleading representation or means in connection with the       
     collection  of  any  debt.    Without  limiting  the  general   
     application  of  the  foregoing,  the  following  conduct  is  a 
     violation of this section:                                      

     (5) The threat to take any action that cannot legally be taken or 
     that is not intended to be taken.                               
     (10) The use of any false representation or deceptive means to  
     collect or attempt to collect any debt or to obtain information 
     concerning a consumer.                                          

15 U.S.C. § 1692e.  “A violation of the FDCPA is reviewed utilizing the unsophisticated-
consumer standard.”  Strand v. Diversified Collection Serv., Inc., 

 (8th 
Cir.  2004).    This  standard  is  “designed  to  protect  consumers  of  below  average 
sophistication or intelligence without having the standard tied to ‘the very last rung on the 
sophistication ladder.’”  Duffy v. Landberg, 

, 874 (8th Cir. 2000) (quoting 
Taylor v. Perrin, Landry, deLaunay & Durand, 

 (5th Cir. 1997)).  
While protecting “the uninformed or naïve consumer,” the standard “also contains an 
objective element of reasonableness to protect debt collectors from liability for peculiar 
interpretations of collection letters.”  Strand, 380 F.3d at 317–18.      
                           2                                         
                           a                                         

Delgado’s declaration-related FDCPA claims—her only remaining claims—will be 
dismissed because the challenged statements were not false or misleading.  Delgado alleges 
Midland’s declaration filed in state court violated the FDCPA because it falsely represented 
that Delgado had been “duly served” and was “in default.”  Pl.’s Mem. in Opp’n at 2.  
Delgado acknowledges receiving Midland’s summons, Compl. ¶ 20, but contends that the 

summons was fatally defective because it misrepresents Minnesota Rule of Civil Procedure 
5.02(a)(2).  The summons states, “YOU WILL LOSE YOUR CASE IF YOU DO NOT   
SEND A WRITTEN RESPONSE TO THE COMPLAINT TO THE PERSON WHO                
SIGNED THIS SUMMONS,” Compl. ¶ 24, but Rule 5.02(a)(2) allows defendants to hand 
deliver an answer.  Because Delgado does not challenge any other aspect of service, the 
question is whether the contents of the summons rendered the summons defective. 
A summons is defective if it fails to “give defendant the notice which the [rule] 

directs should be given.”  Tharp v. Tharp, 

 (Minn. 1949); see also Tullis 
v. Federated Mut. Ins. Co., 

 (Minn. 1997) (“Service of process in a 
manner not authorized by the rule is ineffective service.”).  Rule 4.01 governs the contents 
of a summons as follows:                                                  
     The summons shall state the name of the court and the names     
     of the parties, be subscribed by the plaintiff or by the plaintiff’s 
     attorney, give an address within the United States where the    
     subscriber may be served in person and by mail, state the time  
     within which these rules require the defendant to serve an      
     answer, and notify the defendant that if the defendant fails to 
     do  so  judgment  by  default  will  be  rendered  against  the 
     defendant for the relief demanded in the complaint.             
Minn. R. Civ. P. 4.01.  Because Rule 4.01 governs the contents of a summons, a summons 
that violates Rule 4.01 is legally defective.  Wiley v. Portfolio Recovery Assocs., LLC, No. 
20-cv-00737 (SRN/KMM) et al., 

, at *5 (D. Minn. Mar. 1, 2021).  
However, Minnesota law only requires substantial compliance with its service-of-process 
rules.  Haas v. Brandvold, 

 (Minn. Ct. App. 1988).  The requirements 
should be “given a liberal construction to avoid defeating an action on account of technical 
and formal defects which could not reasonably have misled or prejudiced the defendant.”  
Tharp, 

.                                                   
Delgado  has  not  identified  any  requirement  in  Rule  4.01  that  is  absent  from 
Midland’s summons.  Although a summons must include an “address where the subscriber 
may be served in person and by mail,” Rule 4.01 does not require summonses to detail how 
a recipient may send an answer.7  Nor is it clear that additional misleading information 
would render the summons defective.  Gould v. Johnston, 

 (1877) (“The 

summons must notify the defendant of the filing of the complaint, allow him the proper 
time to answer . . . .  If there be anything more in the summons by which defendant is 
misled, it does not affect the jurisdiction; but the defendant’s relief must be got by applying 
to the court below.  If he is not so misled, then the redundant matter is harmless.”).  Delgado 
cites no legal authority to support her theory that misrepresenting Rule 5.02(a)(2) would 

render the summons defective.  See generally, Pl.’s Mem. in Opp’n at 15–22.  And as will 
be discussed in more detail shortly, the summons does not misrepresent Rule 5.02(a)(2) 
because the summons explains: “You must give or mail to the person who signed this 
Summons a written response called an Answer.”  ECF No. 16 at 12–13.  Moreover, 
Midland used a court-form summons.  Compl. ¶ 52.  To hold Midland’s court-form 

summons was fatally defective would mean countless Minnesota lawsuits have been served 
with fatally defective summons.  That sweeping conclusion is not merited here. 
Delgado counters that “the Court must accept as true [Delgado’s] allegations that 
service was defective[.]”  Pl.’s Mem. in Opp’n at 12.  Not so.  Courts are not required to 
accept as true conclusory allegations, such as Delgado’s allegation that “fatal defects in the 

Summons rendered service ineffective.”  Compl. ¶ 29.  Nor is Delgado’s reliance on Wiley 
v. Portfolio Recovery Assocs., LLC, 

, persuasive.  Wiley involved a 

7    By contrast, Rule 5.02(a)(2) only describes acceptable methods of service; it does 
not impose substantive requirements on the contents of a summons.         
violation of Rule 4.01, the Minnesota Rule of Civil Procedure governing the content of a 
summons.  Id. at *5 (“Like each of the state courts to address this issue, the Court finds 
that the summons did not comply with Rule 4.01.”).  In fact, the summons in Wiley included 

the same language Delgado challenges here: “YOU WILL LOSE YOUR CASE IF YOU 
DO NOT SEND A WRITTEN RESPONSE TO THE COMPLAINT TO THE PERSON             
WHO SIGNED THIS SUMMONS.”  Id. at *1.  But absent from Wiley is any discussion 
that such language could render a summons fatally defective.              
                           b                                         

Although Delgado’s summons-related claims will be dismissed for lack of Article 
III standing, they would alternatively be dismissed for failing to state a claim.  Delgado 
claims the state-court summons violated § 1692f(1), § 1692e(5), and § 1692e(10).   
A debt collector violates § 1692f(1) by “attempting to collect money not permitted 
by law.”  Demarais, 

.  “A plaintiff who pleads a violation of § 1692f(1) 

based on an action not ‘permitted by law’ must necessarily plead that another law, not the 
FDCPA,  was  violated.”    Klein  v.  Stewart  Zlimen  &  Jungers,  Ltd.,  No.  18-cv-658 
(JRT/ECW), 

, at *4 (D. Minn. Jan. 2, 2019).  Delgado’s only theory is that 
the summons was “contrary” to Minnesota Rule of Civil Procedure 5.02(a)(2).  See Compl. 
¶¶ 25–26.  But Delgado has not plausibly alleged the summons violated Rule 5.02(a)(2) 

because Rule 4.01, not Rule 5.02(a)(2), governs the contents of summons.  Therefore, 
Delgado’s summons-related § 1692f(1) claim fails to state a claim.        
For similar reasons, Delgado’s § 1692e(5) claim falls short.  Her theory is that the 
summons was defective, making the statement “YOU WILL LOSE YOUR CASE IF YOU 
DO NOT SEND A WRITTEN RESPONSE TO THE COMPLAINT TO THE PERSON             
WHO SIGNED THIS SUMMONS,” a false threat.  Pl.’s Mem. in Opp’n at 15.  Although 
a defective summons can render the required default-warning a false threat, see Wiley, 

, at *5, Midland’s summons was not defective.  Because Delgado has not 
plausibly alleged service of process was ineffective, she fails to plausibly allege the threat 
to obtain default was false or misleading.  And true to its word, Midland went on to obtain 
the default judgment. 8                                                   
Deciding whether the same language in the state-court summons was misleading—

in violation of § 1692e(10)—requires more analysis but ends at the same result.  Delgado 
contends the statement “YOU WILL LOSE YOUR CASE IF YOU DO NOT SEND A      
WRITTEN RESPONSE TO THE COMPLAINT TO THE PERSON WHO SIGNED THIS           
SUMMONS,” ECF No. 16 at 12, is misleading because Delgado could hand deliver an 
answer.  But that statement must be read in context.  The second paragraph of the summons 

reads:                                                                    
     YOU MUST REPLY WITHIN 21 DAYS TO PROTECT                        
     YOUR RIGHTS.  You must give or mail to the person who           
     signed this Summons a written response called an Answer         
     within  21  days  of  the  date  on  which  you  received  this 
     Summons.  You must send a copy of your Answer to the person     
     who signed this Summons located at Messerli & Kramer P.A.,      
     3033 Campus Drive, Suite 250, Plymouth, MN 55441.               


8    Delgado’s theory might also be that the threat of default was false because Delgado 
could hand deliver an answer.  See Compl. ¶ 46.  To the extent this is the case, her claim is 
based on the same misrepresentation as her § 1692e(10) claim, and therefore her § 1692e(5) 
claim would fail to state a claim for the same reason her § 1692e(10) claim fails.  
ECF No. 16 at 12.  The first sentence instructs the defendant to “give or mail” a response.  
Id.  The second sentence replaces give or mail with send.  Id.  Given this is the first 
paragraph describing how the defendant must respond to the summons, and “give or mail” 

precedes “send,” Delgado’s interpretation that the summons “required [her] to mail a 
written answer to the complaint,” Pl.’s Mem. in Opp’n at 15, is peculiar.  Send, defined as 
“to cause to be conveyed to a destination,” Send, The American Heritage Dictionary 750 
(5th Ed. 2012), is broader than mail, and at least includes the most common forms of 
personal service under Rule 5.02(a)(2).  The unsophisticated consumer standard “contains 

an objective element of reasonableness” to protect debt collectors from interpretations such 
as  Delgado’s  in  this  case.    Strand,  380  F.3d  at  317–18    When  read  in  context,  an 
unsophisticated consumer would not believe they are required to mail a response or unable 
to hand deliver a response.9                                              
Moreover,  courts  have  expressed  skepticism  of  FDCPA  claims  based  on 

misrepresentations in court forms.10  Lauber v. Lawrence & Morris, No. 16 C 11050, 

, at *4 (N.D. Ill. Sept. 20, 2017) (“[B]oth McHenry and St. Clair County 

9    Although the standard is objective, it is worth noting Delgado does not allege she 
was misled by the summons.                                                

10   Identical language is recommended by a Minnesota Judicial Branch form and the 
Minnesota Practice Series.  Minnesota Rules of Civil Procedure Appendices and Forms, 
Minnesota Judicial Branch, https://www.mncourts.gov/SupremeCourt/Court-Rules/Rules-
of-Civil-Procedure-Appendices-and-Forms.aspx (last visited March 24, 2024); 15 Allan 
Zlimen, Minnesota Practice Series Collections Handbook Form 17:8 (3d ed. Sep. 2023 
Update); Roger S. Haydock, David F. Herr, and Sonja D. Peterson, Minnesota Practice 
Series Civil Practice Forms § 4:2 (3d ed. June 2023 Update); David F. Herr & Roger S. 
Haydock, Minnesota Practice Series Civil Rules Annotated Rule 84 (6th ed. May 2023 
Update).                                                                  
courts use the language used by Defendants in the citation, meaning that finding this 
caption to violate § 1692e would also cause all citations from these two counties to violate 
§ 1692e.  Considering that this language has been sanctioned by two other county court 

systems and that the language does not substantially differ from that provided by state 
statute, clearly not even a significant fraction of the population would be misled by the 
language Lauber complains of in the caption here.” (quotation marks omitted)); Yan Lin v. 
Portfolio Recovery Assocs., LLC, No. 19-CV-2910, 

, at *5 (N.D. Ill. 
Apr. 22, 2020); Scioli v. Goldman & Warshaw P.C., 

 (D.N.J. 

2009) (“Thus, Scioli essentially asks this Court to hold that the form summons created by 
the State of Hew [sic] Jersey, and used by countless lawyers and non-lawyers throughout 
the State, violates the FDCPA.  But such a holding would defy common sense and would 
not further the goals of the FDCPA.  Contrary to Scioli’s contention, using the form 
summons—a form specifically created for the unsophisticated defendant—helps to ensure 

that even the least sophisticated debtor will understand the true ‘character, amount, or legal 
status’ of his debt.”); cf. Powers v. Credit Mgmt. Servs., Inc., 

 (8th Cir. 
2015);  Abraham  v.  Midland  Funding,  LLC,  No.  114CV03485RWSJFK,  

, at *4–7 (N.D. Ga. Jan. 21, 2016).  The common use of these form summonses, 
without  any  resulting  confusion,  undermines  Delgado’s  theory  that  send  materially 

misrepresents Rule 5.02(a)(2).                                            
Even if the statement is technically false, false but non-material statements are not 
actionable under § 1692e(10).  Hill v. Accts. Receivable Servs., LLC, 

, 345–
46 (8th Cir. 2018).  As the Seventh Circuit has explained: “The statute is designed to 
provide  information  that  helps  consumers  to  choose  intelligently,  and  by  definition 
immaterial information neither contributes to that objective (if the statement is correct) nor 
undermines it (if the statement is incorrect).”  Hahn v. Triumph P’ships LLC, 

, 

757–58 (7th Cir. 2009).  Therefore, “a misleading statement must have the ability to 
influence a consumer’s decision.”  O’Rourke v. Palisades Acquisition XVI, LLC, 

 (7th Cir. 2011).  Given hand delivery would rarely (if ever) be more convenient 
than mailing for a consumer, there is no plausible reason to believe defendants would only 
respond to a complaint if summons more clearly informed them that they could hand 

deliver answers, and the widespread use of the challenged language in form summons 
promulgated  by  the  Minnesota  Judicial  Branch  and  Minnesota  Practice  Series,  any 
violation of § 1692e here is not material.  It would not have the ability to influence a 
consumer’s decision to respond to a complaint.                            
                           c                                         

Delgado’s notice-related claims would also alternatively be dismissed for failing to 
state a claim.  Delgado brings § 1692f(1), § 1692e(5), and § 1692e(10) claims.  She argues 
that language in the notice—“[Midland] will ask the Court to enter a judgment against you 
without  any  further  court  proceedings,  unless  you  mail  a  written  Answer  or  written 
response[,]”  Compl.  ¶  34—was  false  and  misleading  in  two  ways.    First,  because 

Minnesota Rule of Civil Procedure 5.02(a)(2) allows hand delivery, id. ¶ 35, and second, 
because “Minnesota law requires further court involvement before default judgment can 
be entered,” Pl.’s Mem. in Opp’n at 20.                                   
Delgado’s § 1692f(1) claim runs into a familiar problem: “A plaintiff who pleads a 

violation of § 1692f(1) based on an action not ‘permitted by law’ must necessarily plead 
that another law, not the FDCPA, was violated.”  Klein, 

, at *4.  But 
Delgado only alleges the notice “is contrary to 

.”  Compl. ¶ 49.  
Without identifying a specific violation of statute, Delgado’s conclusory allegations fail to 
state a claim.  And having reviewed the statute and notice of intent, no violation is evident.  

The “without any further court proceedings” language is not false or misleading, 
and therefore does not violate § 1692e(5) or § 1692e(10).  The notice does not state that 
the  state  court  will  enter  a  judgment  without  any  further  court  proceedings,  it  only 
represents that Midland “will ask” the state court to do so.  ECF No. 16 at 20.  And upon a 
request for default, a court may “hold a hearing” or “enter an administrative default 

judgment without a hearing if the court determines that the evidence submitted satisfies the 
requirements [of the statute].”  

(c).  Delgado nonetheless contends 
that “Minnesota law requires further court proceedings” because “an assigned-consumer 
debt plaintiff must persuade a district court that its admissible documentary evidence [is 
sufficient].”  Pl.’s Mem. in Opp’n at 21.  But the unsophisticated consumer is not expected 

parse terms such as court proceeding in such a technical manner.  Miller v. Javitch, Block 
& Rathbone, 

 (6th Cir. 2009).  That a state court must review submissions 
before entering an administrative default is beside the point.  Midland’s notice plainly and 
accurately “conveys the consequences of failing [to respond].”  Peters v. Gen. Serv. 
Bureau, Inc., 

 (8th Cir. 2002).  “The unsophisticated consumer test is 
a practical one, and statements that are merely ‘susceptible of an ingenious misreading’ do 
not violate the FDCPA.”  

 (quoting White v. Goodman, 

 (7th Cir. 

2000)).                                                                   
Deciding  whether  the  “unless  you  mail”  language  violates  §  1692e(5)  and 
§ 1692e(10) is a closer call.  Unlike the summons, the notice plainly directs the consumer 
to mail a response.  ECF No. 16 at 20.  But the challenged language is part of Minnesota 
Statute § 548.101.  Section 548.101 requires debt collectors to mail consumers a notice of 

intent before requesting the state court enter a default.  

(a)(7).  The 
statute includes a template notice of intent.  

  A debt collector’s notice of intent “must 
be substantially” in the form of the template.  

  When the Minnesota Legislature passed 
the bill into law in 2013, 2023 Minnesota Laws Chapter 104, sec. 3, defendants could hand 
deliver answers.  In other words, the Minnesota Legislature could have included personal 

service or other methods of service in the template.  It decided not to.  To conclude the 
Minnesota Legislature’s template is a “false, deceptive, or misleading representation” of 
Minnesota’s Rules of Civil Procedure would be an absurd result.  After all, the notice of 
intent provides an extra layer of protection to a consumer by requiring the debt collector to 
mail the notice after the debtor has failed to answer the summons.  And there may be 

compelling reasons, such as clarity and readability, that the Minnesota Legislature decided 
to only include mail (and not alternative forms of personal service) in its template.  Just as 
courts are reluctant to conclude that court forms violate the FDCPA, that rationale applies 
with far greater force to a form template has gone through the legislative process and been 
signed into law.  For these reasons, and others discussed in the context of Midland’s 
summons, any technical violation of the FDCPA is not material here.       

Based on the foregoing, and on all the files, records, and proceedings herein, IT IS 
ORDERED THAT Defendant Midland Credit Management, Inc.’s Motion to Dismiss 
[ECF No. 13] is GRANTED as follows:                                       
1.   The  Complaint’s  summons-  and  notice-related  claims  are  DISMISSED 
     WITHOUT PREJUDICE for lack of subject-matter jurisdiction; and  

2.   In all other respects, the Complaint is DISMISSED WITH PREJUDICE. 
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

Dated: March 25, 2024              s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court           

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Diana Delgado,                         File No. 23-cv-2128 (ECT/JFD)      

     Plaintiff,                                                      

v.                                       OPINION AND ORDER                

Midland Credit Management, Inc.,                                          

     Defendant.                                                      

________________________________________________________________________  
Darren B. Schwiebert, Briol & Benson, PLLC, Minneapolis, MN, and John Michael Buhta, 
Southern Minnesota Regional Legal Services, Inc., Rochester, MN, for Plaintiff Diana 
Delgado.                                                                  
Kiralyn  Locke  and  Patrick  D.  Newman,  Bassford  Remele,  Minneapolis,  MN,  for 
Defendant Midland Credit Management, Inc.                                 
________________________________________________________________________  
Plaintiff  Diana  Delgado  brings  several  claims  under  the  Fair  Debt  Collection 
Practices  Act  (“FDCPA”)  against  Defendant  Midland  Credit  Management,  Inc.    In 
Minnesota state district court, Midland sought, and received, default judgment against 
Delgado in the amount of $1,350.56.  Now Delgado alleges that Midland’s state-court 
summons, notice of intent to enter default mailed to Delgado, and declaration of no answer 
filed in state court violated § 1692f(1), § 1692e(10), and § 1692e(10) of the FDCPA 
because the documents were inaccurate or misleading in some respect.  She also claims the 
state-court lawsuit and Midland’s related collection efforts violated § 1692f(1) of the 
FDCPA because Midland did not own the debt.  Midland moves to dismiss under Federal 
Rules of Civil Procedure 12(b)(1) and 12(c).                              
Midland’s motion will be granted.  The summons-related and notice-related FDCPA 
claims  will  be  dismissed  for  lack  of  Article  III  standing  because  Delgado  was  not 
concretely injured by the challenged conduct.  Delgado’s claim that Midland attempted to 

collect a debt it didn’t own in violation of § 1692f(1) will be dismissed because the claim 
is collaterally estopped by the state-court judgment.  And Delgado’s declaration-related 
FDCPA claims will be dismissed for failure to state a claim because the state-court 
summons was not fatally defective.                                        
                           I1                                        

On September 1, 2022, “Midland served what purported to be a Summons and 
Complaint” on Delgado.  Compl. [ECF No. 1] ¶ 20.  In relevant part, the summons reads 
as follows:                                                               
     YOU ARE BEING SUED.  Plaintiff has started a lawsuit            
     against you.  Plaintiff’s Complaint against you is attached to  
     this Summons.  Do not throw these papers away.  They are        
     official papers that affect your rights.  You must respond to this 
     lawsuit even though it may not yet be filed with the Court and  
     there may be no Court file number on this Summons.              

1    In analyzing a facial challenge to subject-matter jurisdiction under Rule 12(b)(1) or 
a Rule 12(c) motion for judgment on the pleadings, all factual allegations in the complaint 
are accepted as true and all reasonable inferences are drawn in favor of the plaintiff.  See 
Osborn v. United States, 

, 729 n.6 (8th Cir. 1990).  Accordingly, the relevant 
facts are drawn from Delgado’s Complaint and are accepted as true.  In resolving such 
motions, courts ordinarily do not consider matters outside the pleadings.  See Fed. R. Civ. 
P. 12(d); Zean v. Fairview Health Servs., 

 (8th Cir. 2017).  Courts may, 
however, “additionally consider matters incorporated by reference or integral to the claim, 
items subject to judicial notice, matters of public record, orders, items appearing in the 
record  of  the  case,  and  exhibits  attached  to  the  complaint  whose  authenticity  is 
unquestioned.”  Zean, 

 (internal quotation marks and citations omitted).  
The state-court summons, complaint, declaration, and notice are incorporated by reference 
in Delgado’s Complaint, are integral to her claim, and are matters of public record filed in 
state court.  Therefore, those filings will be considered.                
     YOU MUST REPLY WITHIN 21 DAYS TO PROTECT                        
     YOUR RIGHTS.  You must give or mail to the person who           
     signed this Summons a written response called an Answer         
     within  21  days  of  the  date  on  which  you  received  this 
     Summons.  You must send a copy of your Answer to the person     
     who signed this Summons located at Messerli & Kramer P.A.,      
     3033 Campus Drive, Suite 250, Plymouth, MN 55441.               

     . . . .                                                         

     YOU WILL LOSE YOUR CASE IF YOU DO NOT SEND                      
     A WRITTEN RESPONSE TO THE COMPLAINT TO                          
     THE PERSON WHO SIGNED THIS SUMMONS.  If you                     
     do not Answer within 21 days, you will lose this case.  You     
     will not get to tell your side of the story, and the Court may  
     decide against you and award the Plaintiff everything asked for 
     in the Complaint.  If you do not want to contest the claims     
     stated in the Complaint, you do not need to respond.  A Default 
     Judgment  can  then  be  entered  against  you  for  the  relief 
     requested in the Complaint.                                     

ECF No. 16 at 12.2  In Midland’s state-court complaint, it alleged (1) the original creditor, 
Synchrony Bank, issued a credit account number to Delgado; (2) Delgado “made purchases 
and/or received cash advances on the account”; (3) the last payment made on the account 
was received on May 21, 2019; (4) the balance of the account was $790.56; (5) Midland 
purchased the account on November 25, 2020; and (6) Midland owns the account as 
successor in interest to Synchrony Bank.  

 at 14–15.                   
On November 3, 2022, “Midland filed the Summons and Complaint in Olmsted 
County District Court, along with a Declaration of No Answer, Identification, Non-
Military Status, Amount Due and Costs and Disbursements . . ., a Notice of Intent to Apply 

2    Page citations are to a document’s CM/ECF pagination appearing in the upper right 
corner, not to a document’s original pagination.                          
for Default Judgment . . ., and a Proposed Order.”  Compl. ¶ 21.  The notice of intent is 
dated September 26, 2022, ECF No. 16 at 20, but the Complaint in this case does not allege 
whether Delgado received the notice.  See generally Compl.  In the notice, Midland 

represented that “[it] will ask the Court to enter a judgment against you without any further 
court proceedings, unless you mail a written Answer or written response contesting the 
debt within 14 days from the date below.”  Id. ¶ 34.  In its declaration of no answer, Midland 
stated Delgado had been duly served and was in default.  ECF No. 16 at 17; Compl. ¶¶ 27–
28.  The declaration further stated, “there is now due by [Delgado] to [Midland] on the debt 

set forth the amount of $790.56.”  Compl. ¶ 30.  Midland also requested costs and 
disbursements in the amount of $560.  Id. ¶ 31.                           
The state court entered default judgment against Delgado in the claimed amount of 
$1,350.56.  Compl. ¶ 43.  The judgment resulted in “harm to [Delgado’s] credit rating.”  
Id. ¶ 63.  Since the state court entered default judgment against Delgado, Midland has been 

attempting to collect on the judgment.  Id. ¶ 44.                         
On July 13, 2023, Delgado filed the Complaint.  Delgado alleges several distinct 
claims under § 1692f(1), § 1692e(5), and § 1692e(10) of the FDCPA.  Compl. ¶¶ 45–58.  
Delgado claims: (1) Midland violated § 1692f(1) by bringing the state-court suit and 
subsequently attempting to collect Delgado’s debt despite not owning the debt, id. ¶¶ 38–

42, 56; (2) Midland’s summons violated § 1692f(1), § 1692e(5), and § 1692e(10), id. 
¶¶ 25–26,  49;  (3)  Midland’s  notice  of  intent  violated  §  1692f(1),  §  1692e(5),  and 
§ 1692e(10),  id.  ¶¶  49–50;  and  (4)  Midland’s  declaration  violated  §  1692e(5)  and 
§ 1692e(10), id. ¶ 47.  Midland now moves to dismiss under Federal Rules of Civil 
Procedure 12(b)(1) and 12(c).                                             
                           II                                        

Both the jurisdictional and merits aspects of Midland’s motions are evaluated under 
the Rule 12(b)(6) standard.  Midland relies only on the Complaint and materials in the 
public  record,  meaning  it  brings  a  “facial”  challenge  to  subject-matter  jurisdiction.  
Branson Label, Inc. v. City of Branson, 

 (8th Cir. 2015).  In analyzing a 
facial challenge, a court “restricts itself to the face of the pleadings, and the non-moving 

party receives the same protections as it would defending against a motion brought under 
Rule 12(b)(6).”  Osborn v. United States, 

, 729 n.6 (8th Cir. 1990) (citations 
omitted).  “A claim has facial plausibility when the plaintiff pleads factual content that 
allows the court to draw the reasonable inference that the defendant is liable for the 
misconduct alleged.”  Ashcroft v. Iqbal, 

 (2009).        

A Rule 12(c) motion for judgment on the pleadings is assessed under the same 
standard as a Rule 12(b)(6) motion.  Ashley Cnty. v. Pfizer, Inc., 

 (8th 
Cir. 2009).  Under the familiar Rule 12(b)(6) standard, a court must accept as true all of 
the factual allegations in the complaint and draw all reasonable inferences in the plaintiff’s 
favor.  Gorog v. Best Buy Co., Inc., 

 (8th Cir. 2014) (citation omitted).  

Although the factual allegations need not be detailed, they must be sufficient to “raise a 
right to relief above the speculative level.”  Bell Atl. Corp. v. Twombly, 

 
(2007) (citation omitted).  The complaint must “state a claim to relief that is plausible on 
its face.”  

.  “A claim has facial plausibility when the plaintiff pleads factual 
content that allows the court to draw the reasonable inference that the defendant is liable 
for the misconduct alleged.”  Iqbal, 

.                     
                          III                                        

                           A                                         
                           1                                         
Although the parties did not brief Article III standing, it is necessary to start there.  
The United States Constitution limits the subject-matter jurisdiction of federal courts to 
ongoing cases and controversies.  See U.S. Const. art. III, § 2, cl. 1.  Article III standing “is 

a  jurisdictional  prerequisite  and  thus  a  threshold  issue  that  [a  court  is]  obligated  to 
scrutinize, sua sponte if need be.”  Bernbeck v. Gale, 

 (8th Cir. 2016) 
(internal quotation marks and citation omitted).  “To show Article III standing, a plaintiff 
has the burden of proving: (1) that he or she suffered an ‘injury-in-fact,’ (2) a causal 
relationship between the injury and the challenged conduct, and (3) that the injury likely 

will be redressed by a favorable decision.”  Steger v. Franco, Inc., 

, 892 (8th 
Cir. 2000) (quoting Lujan v. Defs. of Wildlife, 

, 560–61 (1992)).  A plaintiff 
must demonstrate standing “with the manner and degree of evidence required at the 
successive stages of the litigation.”  Lujan, 

.  “And standing is not dispensed 
in gross; rather, plaintiffs must demonstrate standing for each claim that they press and for 

each form of relief that they seek.”  TransUnion LLC v. Ramirez, 

 (2021). 
To establish an injury in fact, a plaintiff must show “an invasion of a legally 
protected interest” that is “concrete and particularized” and “actual or imminent.”  Lujan, 

.  The Supreme Court has explained in some detail what makes an injury 
“concrete” for Article III’s purposes.  See, e.g., Ramirez, 594 U.S. at 424–30.  A “concrete” 
injury is “real, and not abstract.”  Spokeo, Inc. v. Robins, 

 (2016) (cleaned 
up).  Complaints that allege “economic or physical harms” are almost always no-doubters.  

Hein  v.  Freedom  from  Religion  Found.,  Inc.,  

  (2007)  (Souter,  J., 
dissenting).  This is true even if the alleged harm is “only a few pennies.”  Wallace v. 
ConAgra Foods, Inc., 

 (8th Cir. 2014).  “Various intangible harms can 
also be concrete,” though they also may present more difficult and closer calls.  Ramirez, 

.  As the Court explained in Spokeo in the context of federal statutory 

claims:                                                                   
     In determining whether an intangible harm constitutes injury    
     in  fact,  both  history  and  the  judgment  of  Congress  play 
     important roles.  Because the doctrine of standing derives from 
     the  case-or-controversy  requirement,  and  because  that      
     requirement in turn is grounded in historical practice, it is   
     instructive to consider whether an alleged intangible harm has  
     a  close  relationship  to  a  harm  that  has  traditionally  been 
     regarded  as  providing  a  basis  for  a  lawsuit  in  English  or 
     American  courts.    In  addition,  because  Congress  is  well 
     positioned to identify intangible harms that meet minimum       
     Article III requirements, its judgment is also instructive and  
     important.    Thus,  we  said  in  Lujan  that  Congress  may   
     “elevat[e] to the status of legally cognizable injuries concrete, 
     de  facto  injuries  that  were  previously  inadequate  in  law.”  
     Similarly,  Justice  Kennedy’s  concurrence  in  that  case     
     explained that “Congress has the power to define injuries and   
     articulate chains of causation that will give rise to a case or 
     controversy where none existed before.”                         

578 U.S. at 340–41 (citations omitted).  Examples of “harms traditionally recognized as 
providing a basis for lawsuits in American courts . . . include, for example, reputational 
harms, disclosure of private information, and intrusion upon seclusion.”  Ramirez, 

.  In the context of an alleged federal statutory violation, the task, as I understand it, 
is to examine the plaintiff’s injury allegations and determine whether they have a “close 
relationship” to a harm traditionally recognized as the basis for a case under the common 

law.  Spokeo, 

; see also Braitberg v. Charter Commc’ns, Inc., 

, 
930–31 (8th Cir. 2016).3                                                  
                           2                                         
                           a                                         
Start with Delgado’s claim that Midland violated § 1692f(1) by attempting to collect 

the $790.56 debt despite not owning the debt.  Delgado plausibly alleges both tangible and 
intangible harms fairly traceable to Midland’s attempts to collect the debt.  Midland’s state-
court debt-collection efforts resulted in a money judgment with a related harm to Delgado’s 
credit rating.  Compl. ¶ 63.  “Several courts have found that diminution of credit score 
confers standing as a financial harm that impacts a consumer’s economic condition.”  

Norman v. Trans Union, LLC, 

, 371 (E.D. Pa. 2023) (collecting cases).  

3    Some post-Spokeo but pre-Ramirez cases hold that any violation of § 1692e or 
§ 1692f is a concrete injury.  See, e.g., Gause v. Med. Bus. Consultants, Inc., 

, 1198 (M.D. Fla. 2019) (“An overwhelming majority of courts have determined 
sections 1692e and 1692f of the FDCPA provide substantive rights to consumers that 
necessarily protect their Congressionally recognized, concrete interests in being free from 
abusive debt collection practices, and that violations of the statutes’ provisions therefore 
give rise to concrete injuries sufficient to confer Article III standing.”).  But Ramirez 
clarified that “plaintiffs must show that the statutory violation caused them a concrete 
harm, regardless of whether the statutory rights violated were substantive or procedural.”  
Maddox v. Bank of N.Y. Mellon Tr. Co., N.A., 

, 64 n.2 (2d Cir. 2021); see also 
Perez v. McCreary, Veselka, Bragg & Allen, P.C., 

 (5th Cir. 2022) 
(rejecting the distinction between substantive and procedural statutory rights).  In other 
words, a violation of the FDCPA, without more, is not enough for a plaintiff to have Article 
III standing.                                                             
The judgment and diminution of credit score are particularized to Delgado and were caused 
by Midland’s debt-collection efforts.                                     
To decide whether Delgado’s intangible injury allegations are sufficient, Demarais 

v. Gurstel Chargo, P.A., 

 (8th Cir. 2017), is instructive.  In Demarais, a debt 
collector dismissed its case against a consumer with prejudice, but later sent a letter 
attempting to collect the same debt, serving the consumer with interrogatories and stating 
that the consumer was required to respond within 30 days.  

.  The Eighth Circuit 
found the consumer had standing to sue under the FDCPA because the debt collector’s 

attempt to collect the dismissed debt bore a close relationship with unjustifiable-litigation 
torts.  

 at 691–92.  As the Eighth Circuit explained, “[w]ith § 1692f(1), Congress 
identified a harm—being subjected to attempts to collect debts not owed.”  Id. at 691.  That 
harm “is similar to the harm suffered by victims of the common-law torts of malicious 
prosecution, wrongful use of civil proceedings, and abuse of process.”  Id.  “In light of the 

similarities between [the consumer’s] alleged harm and traditionally recognized harms, and 
Congress’s judgment that attempts to collect debts not owed cause real injuries,” the Eighth 
Circuit found that the debt collector’s attempt to collect the dismissed debt caused the 
consumer a concrete injury in fact.  Id. at 692.                          
Some language in Demarais could be construed broadly.  For example, “[the debt 

collector’s] alleged invasion of [the consumer’s] § 1692f(1) rights is a concrete injury in 
fact,” id. at 693, could be read to mean that any violation of § 1692f(1) is a concrete injury 
because violations of the statute create real risks of harm.  However, Ramirez cautions 
against such a wholesale approach.  See Ramirez, 594 U.S. at 426–27.  And since Ramirez, 
the Eighth Circuit has framed Demarais more narrowly, explaining that in Demarais “the 
debtor’s FDCPA claims, including claims of mental distress, . . . bore a close relationship 
to ‘common-law unjustifiable-litigation torts.’”  Ojogwu v. Rodenburg L. Firm, 

 (8th Cir. 2022) (quoting Demarais, 869 F.3d at 691–92).  Therefore, I understand 
Demarais to hold that being subject to attempts to collect a debt not owed is an intangible 
harm sufficient to confer Article III standing when the underlying facts bear a sufficiently 
close relationship to a common-law unjustifiable-litigation tort.4        
Here,  Midland’s  suit  against  Delgado  without  owning  the  debt  bears  a  close 

relationship to the well-recognized tort of the wrongful use of civil proceedings.  See 
Viernes v. DNF Assocs., LLC, 

, 750 (D. Haw. 2022) (“There is a close 
relationship between being subjected to an unlawful lawsuit and the four elements of 
wrongful civil proceedings.”).  Viernes’s element-by-element analysis of an FDCPA claim 
is persuasive here.  

 at 749–52.  Moreover, the facts alleged in this case bear a closer 

relationship with the tort of wrongful use of civil proceedings than what the Eighth Circuit 

4    Cases have framed the intangible injury in Demarais differently.  Compare Thome 
v. Sayer L. Grp., P.C., 

, 1071 (N.D. Iowa 2021) (“Accordingly, the 
Demarais Court found the plaintiff's emotional distress was a concrete injury.”), and 
Ojogwu, 

 (describing Demarais as “including claims of mental distress”), 
with Buchholz v. Meyer Njus Tanick, PA, 

 (6th Cir. 2020) (describing the 
harm as “being asked to pay a debt not owed”), Hrdlicka v. Bruce, No. 3:21-cv-00033-
GFVT, 

, at *4 (E.D. Ky. May 11, 2022) (describing the harm as the 
attempt to collect the debt), and Mayfield v. Portfolio Recovery Assocs., LLC, 

, 682 (D. Minn. 2021) (same).  Demarais did not discuss any specific allegations of 
emotional distress or claims of mental distress.  See generally Demarais, 

.  
Instead, it framed “the harm of being subjected to baseless legal claims” as the intangible 
harm sufficient to confer Article III standing.  

 at 691–92.  Therefore, Delgado need not 
allege emotional harm (or some other intangible injury) to have been concretely injured by 
Midland’s attempts to collect a debt not owed.                            
found  sufficient  in  Demarais.    Therefore,  Delgado  has  Article  III  standing  to  claim 
Midland’s attempt to collect a debt it did not own violated § 1692f(1).   
                           b                                         

Turn  next  to  Delgado’s  claim  that  Midland’s  state-court  summons  violated 
§ 1692f(1), § 1692e(5), and § 1692e(10).  Delgado claims the summons was “contrary to” 
Minnesota Rule of Civil Procedure 5.02(a)(2), Compl. ¶¶ 25–26, falsely threatened that 
Midland would obtain default judgment, id. ¶ 46, and misrepresented how Delgado was 
required to respond, id.  According to Delgado, all three claims rest on Midland misleading 

her “about her rights under Minnesota law by making misrepresentations in a summons 
that she was required to mail a written answer.”  Pl.’s Mem. in Opp’n [ECF No. 29] at 2.5  
Because the challenged conduct is closely related, it makes sense to analyze Delgado’s 
standing to bring all three claims together.                              
Although  fairly  debatable,  the  better  answer  is  that  Delgado  lacks  Article  III 

standing to bring her summons-related FDCPA claims.  Delgado does not allege any 
tangible harms fairly traceable to the challenged conduct.  Although the judgment and 
subsequent hit to her credit score are concrete injuries, those tangible harms are not fairly 
traceable  to  the  alleged  violation  of  Rule  5.02(a)(2),  threat  of  default  judgment,  or 





5    Delgado’s § 1692e(5) claim also rests upon a subsequent statement: “YOU WILL 
LOSE YOUR CASE IF YOU DO NOT SEND A WRITTEN RESPONSE[.]”  Compl. ¶        
24.                                                                       
representation that Delgado must send a response.  Thus, the only possible injuries are 
intangible.                                                               
Delgado alleges “an informational injury [because the summons] misled her with 

regard to the rules governing her response to the claim against her.”  Compl. ¶ 51.  Although 
an informational injury may be a concrete injury, see Fed. Election Comm’n v. Akins, 

, (1998); Pub. Citizen v. Dep’t of Just., 

 (1989), as the Supreme Court 
emphasized in Ramirez, Delgado must identify “‘downstream consequences’ from failing 
to receive the . . . information.”  Ramirez, 

 (quoting Trichell v. Midland 

Credit Mgmt., Inc., 

, 1004 (11th Cir. 2020)). “An ‘asserted informational 
injury that causes no adverse effects cannot satisfy Article III.’”  

 (quoting Trichell, 964 
F.3d at 1004).  Here, Delgado’s allegation that she was misled is conclusory, and therefore 
insufficient to demonstrate downstream, adverse effects.  Nor is there reason to infer an 
adverse effect without any factual allegations that Delgado read the summons, believed she 

had to mail her answer, and acted upon such a belief.  Delgado’s alleged informational 
injury is not concrete.                                                   
Turning to the close relationship test, it makes sense to start with the tort of 
fraudulent  misrepresentation  because  this  tort  usually  offers  the  closest  historical 
comparison to a § 1692e claim.  See Trichell, 964 F.3d at 998.  “[I]n the FDCPA context, 

it is not sufficient for a debtor’s standing that Congress sought to protect all debtors from 
the receipt of false or misleading information from debt collectors; each plaintiff asserting 
a  §  1692e  violation  must  establish  that  ‘the  harm  [she  suffered]  from  a  misleading 
statement of this kind bears a sufficiently close relationship to the harm from [fraudulent 
misrepresentation].’”  Huber v. Simon’s Agency, Inc., 

 (3d Cir. 2023) 
(alterations in original) (quoting Ramirez, 

).  “Fraudulent misrepresentation 
recognizes harm flowing from plaintiffs’ reasonable reliance on a misrepresentation.”  

Bassett v. Credit Bureau Servs., Inc., 

 (8th Cir. 2023).  Therefore, for 
alleged  harms  to  bear  a  sufficiently  close  relationship  with  the  tort  of  fraudulent 
misrepresentation, a plaintiff must allege an injury caused by reliance on a misleading 
representation.  Id.; Trichell, 964 F.3d at 998; Morales v. Commonwealth Fin. Sys., Inc., 
No. 22-3388, 

, at *2 (3d Cir. Nov. 22, 2023); Shields v. Pro. Bureau of 

Collections of Md., Inc., 

 (10th Cir. 2022).  Because Delgado has not 
alleged any reliance on Midland’s representations or threat to obtain a default in the 
summons, see generally, Compl., the analogy to the tort of fraudulent misrepresentation 
fails.                                                                    
The remaining possible analogous torts are the wrongful use of civil proceedings 

and abuse of process.  Unlike Demarais, the comparison falls short here.  The tort of 
wrongful use of civil proceedings has the following four elements:        
     One who [(1)] takes an active part in the initiation, continuation 
     or procurement of civil proceedings against another is subject  
     to liability to the other for wrongful civil proceedings if [(2)] 
     he  acts  without  probable  cause,  and  [(3)]  primarily  for  a 
     purpose other than that of securing the proper adjudication of  
     the claim in which the proceedings are based, and [(4)] except  
     when they are ex parte, the proceedings have terminated in      
     favor of the person against whom they are brought.              
Silver v. Mendel, 

, 604 n.9 (3d Cir. 1990) (quoting Restatement (Second) of 
Torts § 674 (

 Update)); see also Hernon v. Revere Copper & Brass, Inc., 

 (8th Cir. 1974) (quoting similar elements from the first Restatement of 
Torts).  “The tort of malicious prosecution  lies  to  compensate an individual who is 
maliciously hailed into court and forced to defend against a fabricated cause of action.”  

Pace v. Hillcrest Motor Co., 

 (Cal. Ct. App. 1980).  The majority 
rule “does not require any showing of special injury to prevail in a malicious prosecution 
action.”  8 Stuart M. Speiser et al., American Law of Torts § 28:28 (Feb. 2024 Update); 
Restatement (Second) of Torts §§ 674, 681 (

 Update); Dan B. Dobbs et al., 
The Law of Torts § 593 (2d ed. May 2023 Update) (“According to most counts, a majority 

of American courts allow the plaintiff to pursue the wrongful civil litigation claim without 
showing any special kind of injury.”).  Because a wrongful-use-of-civil-proceedings claim 
does not require special damages, it is fair to conclude that being subject to wrongful civil 
proceedings is a “harm[] traditionally recognized as providing a basis for lawsuits in 
American courts.”  Ramirez, 

.  Therefore, a plaintiff bringing suit under the 

FDCPA may, as in Demarais, satisfy Article III by analogizing the facts of the alleged 
statutory violation to unjustified-litigation torts, including the tort of wrongful use of civil 
proceedings.                                                              
But  in  this  case,  the  analogy  quickly  flounders.    Delgado’s  summons-related 
FDCPA claims are premised on (1) a violation of the Minnesota Rules of Civil Procedure; 

(2) a false threat; and (3) a misrepresentation.  The challenged conduct all relates to a single 
component of a lawsuit, not the decision to start or continue a lawsuit.  The type of harm 
flowing from defects and misrepresentations in a summons is different than the type of 
harm found in a wrongful-use-of-civil-proceedings claim where damages are expected to 
flow  from  defending  and  being  subject  to  a  baseless  lawsuit.    And  violating  or 
misrepresenting Rule 5.02(a)(2) has nothing to do with Midland’s probable cause to bring 
the state-court suit.  Nor do the factual allegations allow an inference that Midland’s 

summons-related FDCPA violations were the result of an improper purpose.  Examples of 
improper purposes include malice, harassment, or delay.  Restatement (Second) of Torts 
§ 676(c) (

 Update).  Given Delgado failed to allege an improper purpose, 
see generally Compl., and Midland did not alter the challenged language taken from a 
court-form summons, it is neither alleged nor plausible that Midland’s representations in 

the summons were the product of an improper purpose.6  Where, as here, the challenged 
conduct occurred within a lawsuit, the challenged conduct is unrelated to the defendant’s 
probable cause to bring the suit, the plaintiff has not identified an improper purpose, and 
there remains a state-court judgment entered in favor of the defendant, the facts do not bear 
a close relationship to the tort of wrongful use of civil proceedings.    

Abuse of process is no better an analog.  The elements of abuse of process are: 
“(1) an ulterior purpose and (2) an act in the use of process which is improper in the regular 
prosecution of the proceeding.”  Van Vleck v. Leikin, Ingber, & Winters, P.C., No. 22-
1859, 

, at *5 (6th Cir. Apr. 27, 2023) (quoting Jordan v. Nat’l City Bank, 
No. 309428, 

, at *13 (Mich. Ct. App. Mar. 25, 2014)).  The misconduct 


6    In Viernes, the court found the fourth element “ill-suited for analogy, considering 
the three purposes behind that element.”  582 F. Supp. 3d at 751.  But one of those purposes, 
preventing  parallel  litigation,  is  “grounded  in  the  aversion  to  collateral  attacks  on 
judgments through civil-tort vehicles.”  Id. at 752.  That purpose remains relevant here, 
where there is a state-court judgment that Delgado has declined to attack.  To the extent 
the termination-in-favor-of element applies, it weighs against finding a close relationship. 
“is not the wrongful procurement of legal process or the wrongful initiation of criminal or 
civil proceedings; it is the misuse of process, no matter how properly obtained, for any 
purpose other than that which it was designed to accomplish.”  Restatement (Second) of 

Torts § 682(a) (

 Update).  “The usual case of abuse of process is one of 
some form of extortion, using the process to put pressure upon the other to compel him to 
pay a different debt or to take some other action or refrain from it.”  Restatement (Second) 
of Torts § 682(b) (

 Update).  Here, there are no allegations (or reason to 
infer) that Midland’s summons was drafted or served with an improper ulterior purpose.  

See generally, Compl.  And because such an improper purpose is at the heart of an abuse 
of process claim, the comparison fails.  Van Vleck, 

, at *5 (“That the 
[court-form summons] did not disclose the Michigan Supreme Court’s suspension [of the 
21-day deadline to respond to the complaint] does not permit drawing an inference that 
[the  defendant’s]  ulterior  purpose  was  to  obscure  the  suspension.    [The  plaintiff’s] 

allegation therefore falls short of resembling the common law tort of abuse of process.”).  
Because Delgado’s summons-related FDCPA claims do not bear a sufficiently close 
relationship to a common-law tort, she lacks Article III standing to bring these claims. 
                           c                                         
Delgado also brings § 1692f(1), § 1692e(5), and § 1692e(10) claims related to 

Midland’s notice of intent to enter a default.  She claims that the statement, “[Midland] will 
ask the Court to enter a judgment against you without any further court proceedings, unless 
you mail a written Answer or written response,” is (1) “contrary to” Minnesota Statute 
§ 548.101, Compl. ¶ 49; (2) a false threat to seek default judgment, id. ¶ 48; and (3) 
misrepresents Rule 5.02(a)(2), id.                                        
Delgado’s notice-related claims run into the same problem as her summons-related 

claims.  Delgado alleges no tangible harms fairly traceable to the alleged violation of 
Minnesota law, false threat, or misrepresentations in the notice.  Any informational injury 
is inadequately pleaded because there are no factual allegations of downstream, adverse 
consequences.  Delgado does not allege an injury bearing a close relationship to the tort of 
fraudulent misrepresentation because Delgado does not allege reliance on any aspect of the 

notice.  The tort of wrongful use of civil proceedings does not bear a close relationship to 
the facts of this case because the challenged conduct occurred within a lawsuit and is 
unrelated to Midland’s probable cause to bring the state-court suit, Delgado has not alleged 
an improper purpose, and there remains a state-court judgment entered in favor of Midland.  
And there is no close relationship with the tort of abuse of process because Delgado has 

not pleaded Midland drafted, served, or filed the notice with an improper purpose.  Nor is 
there reason to infer an improper purpose when Midland’s notice matches the language in 
Minnesota  Statute  §  548.101’s  statutory  template.    Without  a  concrete  injury  fairly 
traceable  to  Midland’s  notice-related  challenged  conduct,  Delgado  lacks  Article  III 
standing to bring her notice-related FDCPA claims.                        

                           d                                         
Finally, Delgado brings § 1692e(5) and § 1692e(10) claims based on Midland’s 
representations in a declaration to the state court that Delgado had been duly served and 
was in default.  Because Delgado suffered tangible harm from the judgment and related 
harm to her credit score, the question is whether the state-court judgment is fairly traceable 
to  Midland’s  representations.    For  Delgado’s  injury  to  be  fairly  traceable,  she  must 
“[allege] a sufficiently direct causal connection between the challenged action and the 

identified harm” that “cannot be overly attenuated.”  AGRED Found. v. United States Army 
Corps of Eng’rs, 

 (8th Cir. 2021).  The injury must “not [be] the result 
of the independent action of some third party not before the court.’”  

 (quoting Lujan, 

).  But the actions of a third party in the chain of causation do not always 
break that causal chain.  Dep’t of Com. v. New York, 588 U.S. ----, 

 

(2019).  An injury may be “produced by determinative or coercive effect upon the action 
of someone else.”  Bennett v. Spear, 

 (1997).  It can be enough if “third 
parties will likely react in predictable ways” to the challenged action.  Dep’t of Com., 588 
U.S. ----, 

.                                            
Although the state-court judge, a third party, entered the judgment, the judgment is 

fairly traceable to Midland’s representations that Delgado was duly served.  Delgado 
alleges that “the [state court], relying on Midland’s false and misleading statements, 
entered default judgment against . . . Delgado on in [sic] the claimed amount of $1,350.56.”  
Compl. ¶ 43.  And this reliance is plausible because service of process is required for a 
court to enter default judgment.  Laymon v. Minn. Premier Props., LLC, 

, 

19–20  (Minn.  Ct.  App.  2017).    Therefore,  the  state  court’s  default  judgment  was  a 
predictable result of Midland’s representations that Delgado had been duly served, and it 
is fair to conclude the judgment and diminution in credit score are fairly traceable to 
Midland’s representations.  Delgado thus has standing to challenge Midland’s alleged 
misrepresentations in the declaration as violations of § 1692e(5) and § 1692e(10). 
                           B                                         

Midland argues all of Delgado’s claims should be dismissed under the Rooker-
Feldman doctrine.  “In the two decisions for which the doctrine is named, Rooker v. Fidelity 
Trust Co., 

 (1923), and District of Columbia Court of Appeals v. Feldman, 

 (1983), the Court established the narrow proposition that with the exception 
of habeas corpus proceedings, the inferior federal courts lack subject-matter jurisdiction 

over ‘cases brought by state-court losers complaining of injuries caused by state-court 
judgments rendered before the district court proceedings commenced and inviting district 
court review and rejection of those judgments.’”  In re Athens/Alpha Gas Corp., 

 (8th Cir. 2013) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 

 (2005)).  “This conclusion follows from 

, which grants to the 

Supreme Court exclusive jurisdiction over appeals from state-court judgments.”  Id.; see 
also Exxon Mobil, 

 (“Federal district courts . . . are empowered to exercise 
original, not appellate, jurisdiction.”).  In Exxon Mobil, the Supreme Court noted that 
inferior federal courts had sometimes applied the Rooker-Feldman doctrine too broadly, 
“overriding Congress’ conferral of federal-court jurisdiction concurrent with jurisdiction 

exercised by state courts, and superseding the ordinary application of preclusion law 
pursuant to 

,” the Full Faith and Credit Act.  Exxon Mobil, 

.  To check the lower federal courts’ enthusiasm for the Rooker-Feldman doctrine, the 
Supreme Court made clear that the doctrine applies only to cases filed in federal court by 
the  losing  party  in  state  court  “complaining  of  an  injury  caused  by  the  state-court 
judgment”  that  “call[]  upon  the  District  Court  to  overturn  an  injurious  state-court 
judgment.”  

, 291–92.  Importantly, the Court also explained that § 1257 does not 

“stop a district court from exercising subject-matter jurisdiction simply because a party 
attempts to litigate in federal court a matter previously litigated in state court.  If a federal 
plaintiff ‘present[s] some independent claim, albeit one that denies a legal conclusion that 
a state court has reached in a case to which he was a party . . ., then there is jurisdiction and 
state law determines whether the defendant prevails under principles of preclusion.’”  Id. 

at 293 (quoting GASH Assocs. v. Rosemont, 

 (7th Cir. 1993)). 
Some cases present straightforward Rooker-Feldman questions while others are 
more difficult.  See Athens/Alpha, 

 (observing that “the scope of the Rooker-
Feldman doctrine, even as narrowly described in Exxon Mobil, is sometimes fuzzy on the 
margins”); Dodson v. Univ. of Ark. for Med. Scis., 

, 756 (8th Cir. 2010) 

(Melloy, J. concurring) (“Indirect appeals from state-court judgments have been more 
controversial[.]”).  Examples are instructive.  Consider Caldwell v. DeWoskin, 

 (8th Cir. 2016).  There, the plaintiff, Caldwell, sued his ex-wife (Lavender) and her 
attorney (DeWoskin) in a federal district court alleging they had violated the automatic 
stay by continuing to seek enforcement of a judgment of dissolution against Caldwell, 

including  contempt  sanctions,  in  Missouri  state  court  after  Caldwell  had  filed  for 
bankruptcy.  

 at 1006–08.  The Missouri state court “decided the automatic stay did not 
prevent it from holding Caldwell in contempt, and so held.”  

.  The Missouri 
Court of Appeals later reversed the contempt judgment on grounds other than the automatic 
stay.    

    The  federal  district  court  entered  summary  judgment  against  Caldwell, 
determining that it lacked subject-matter jurisdiction under the Rooker-Feldman doctrine, 

, and the Eighth Circuit reversed, 

 at 1008–09.  The Eighth Circuit explained: 

“Whether the doctrine applies depends on whether a federal plaintiff seeks relief from a 
state court judgment based on an allegedly erroneous decision by a state court—in which 
case the doctrine would apply—or seeks relief from the allegedly illegal act or omission of 
an adverse party.”  

 at 1008 (citing Hageman v. Barton, 

 (8th Cir. 
2016)).  Caldwell sought only “compensation for injuries he allege[d] were caused by the 

actions DeWoskin and Lavender took to enforce the state court’s [judgment] after the 
automatic stay was in place.”  Id. at 1009.  The Eighth Circuit concluded that “Caldwell’s 
claims are not barred by Rooker-Feldman because they challenge the actions taken by 
DeWoskin and Lavender ‘in seeking and executing the [state contempt orders],’ rather than 
the state court orders themselves.”  Id. (quoting Riehm v. Engelking, 

 

(8th Cir. 2008); see also Hageman, 

 (recognizing that the Rooker-Feldman 
doctrine “is limited in scope and does not bar jurisdiction over actions alleging independent 
claims arising from conduct in underlying state proceedings”); Robins v. Ritchie, 

 (8th Cir. 2011) (recognizing that Rooker-Feldman applies “if the federal claims 
can succeed only to the extent the state court wrongly decided the issues before it.”). 

Midland argues that Delgado’s FDCPA action is inextricably intertwined with the 
state-court  judgment  because  “to  enter  a  judgment  in  [Delgado’s]  favor  here  would 
fundamentally conflict with the factual findings based on evidentiary submissions in the 
Collection Action.”  Def.’s Mem. in Supp. [ECF No. 15] at 14.  But since Exxon, courts 
have generally found FDCPA claims to be independent claims, not collateral attacks on the 
state court action.  Hageman v. Barton, 

 (8th Cir. 2016); Janson v. 
Katharyn B. Davis, LLC, 

 (8th Cir. 2015); Ness v. Gurstel Chargo, P.A., 

 (D. Minn. 2013) (“Consequently, Rooker–Feldman does not 
bar an FDCPA claim challenging only a defendant’s debt-collection practices, without 
challenging the validity of the state-court judgment.”); Wyles v. Excalibur I, LLC, No. 05-
cv-2798 (JRT/JJG), 

, at *2 (D. Minn. Sept. 7, 2006) (“Because an 
FDCPA plaintiff is not challenging the validity of the debt, but rather the collection 

practices of the creditor, a claim under the FDCPA is an ‘independent claim’ from a state 
court action to collect a debt, and Federal courts have jurisdiction over the case.”).  FDCPA 
claims are typically independent because an FDCPA plaintiff challenges an opposing 
party’s debt collection practices and thus “seeks relief from the allegedly illegal act or 
omission of an adverse party.”  Caldwell, 

.               

That  general  rule  applies  here.    Delgado’s  FDCPA  claims  attack  Midland’s 
summons, declaration, notice, and attempts to collect a debt not owned.  Delgado’s FDCPA 
claims are not a collateral attack because they challenge “the collection practices of the 
creditor.”  Wyles, 

, at *2.  Rooker-Feldman does not prohibit Delgado’s 
FDCPA claims that “seek[] statutory penalties based on [a defendant’s] actions in the 

process of obtaining the judgment and order.”  Hageman, 

.  
                          IV                                         
                           A                                         
Turning to the Rule 12(c) issues, Midland argues that Delgado’s claims are barred 

by issue preclusion and claim preclusion.  When applying claim preclusion, also known as 
res judicata, “[t]he law of the forum that rendered the first judgment controls.”  Ashanti v. 
City of Golden Valley, 

 (8th Cir. 2012) (quoting Laase v. Cnty. of 
Isanti, 

 (8th Cir. 2011)).  A later claim is barred under Minnesota law 
“where ‘(1) the earlier claim involved the same set of factual circumstances; (2) the earlier 

claim involved the same parties or their privies; (3) there was a final judgment on the 
merits; (4) the estopped party had a full and fair opportunity to litigate the matter.’”  St. 
Paul Fire & Marine Ins. Co. v. Compaq Comput. Corp., 

 (8th Cir. 2008) 
(quoting  Hauschildt  v.  Beckingham,  

  (Minn.  2004)).    Claim 
preclusion does not depend on the legal theories identified in the complaint, rather, “[a] 

claim or cause of action is ‘a group of operative facts giving rise to one or more bases for 
suing.’”  Hauschildt, 

 (quoting Martin ex rel. Hoff v. City of Rochester, 

 (Minn. 2002)).                                            
Here, Delgado’s unpaid debt and Midland’s purchase of that debt are the operative 
facts in Midland’s state-court complaint.  ECF No. 16 at 14–15.  By contrast, the operative 

facts of Delgado’s Complaint in this case are Midland’s attempts to collect the debt in the 
state-court case.  See Compl. ¶¶ 45–58.  Because “the claims in this case are centered on 
[Midland’s] conduct in the state-court action,” the claims “could not have been raised in 
that case, and [Delgado] is free to raise them for the first time here.”  Heroux v. Callidus 
Portfolio Mgmt. Inc., No. 17-cv-5132 (DSD/HB), 

, at *3 (D. Minn. May 
1, 2018).  Delgado’s claim that Midland attempted to collect the debt despite not owning 
the debt—in violation of § 1692f(1)—has significant factual overlap with the state-court 

case.  But there are important distinctions.  Delgado’s FDCPA claim requires her to prove 
Midland attempted to collect the debt.  And the claims arose at different times: “[I]f the 
right to assert the second claim did not arise at the same time as the right to assert the first 
claim, then the claims cannot be considered the same cause of action.”  Care Inst., Inc.-
Roseville v. Cnty. of Ramsey, 

 (Minn. 2000); see also Hauschildt, 

 (noting “the right to assert a claim based on the 1998 acts and omissions 
arose after the right to a claim arose based on the 1992 distribution”).  Midland’s claim 
first arose when Delgado failed to pay the debt (and it purchased the debt), while Delgado’s 
claim only arose when Midland attempted to collect the debt by filing the state-court 
lawsuit.                                                                  

A slightly different result is merited under collateral estoppel.  “Under Minnesota 
law, collateral estoppel is appropriate when the following four elements are met: (1) the 
issue [is] identical to one in a prior adjudication; (2) there was a final judgment on the 
merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; 
and (4) the estopped party was given a full and fair opportunity to be heard on the 

adjudicated issue.”  Ill. Farmers Ins. Co. v. Reed, 

 (Minn. 2003) 
(quotation omitted).  Regarding the first element, “[t]he issue on which collateral estoppel 
is to be applied must be the same as that adjudicated in the prior action and it must have 
been necessary and essential to the resulting judgment in that action.”  Hauschildt, 

 (citing Ellis v. Minneapolis Comm’n on Civil Rights, 

 
(Minn. 1982), and Hauser v. Mealey, 

 (Minn. 1978)).  “The party 
asserting  collateral  estoppel  has  the  burden  to  establish  that  ‘the  issue  was  actually 

presented and necessarily determined in the earlier action.’”  Mach v. Wells Concrete 
Prods. Co., 

 (Minn. 2015) (quoting Lange v. City of Byron, 

 (Minn. 1977)).  Issue preclusion in Minnesota is not “rigidly applied,” 
rather, “the focus is on whether its application would work an injustice on the party against 
whom estoppel is urged.”  Falgren v. Bd. of Teaching, 

 (Minn. 1996) 

(quoting Johnson v. Consol. Freightways, Inc., 

, 613–14 (Minn. 1988)). 
Midland’s ownership of the debt satisfies all four elements.  “A default judgment 
may  operate  as  a  final  judgment  on  the  merits  for  collateral-estoppel  purposes.”  
S. Robideau Const., Inc. v. Hiber, No. A16-0451, 

, at *2 (Minn. Ct. App. 
Aug. 29, 2016) (citing Roberts v. Flanagan, 

, 886–87 (Minn. Ct. App. 

1987)).  And the parties here are the same as the parties in the state-court action.  Although 
the  first  element  requires  an  identical  issue  to  be  actually  litigated  and  necessarily 
determined, default judgments are nonetheless  “collateral estoppel as to those issues 
pleaded in the complaint.”  In re Gibson, 

 (Bankr. W.D. Wis. 2014) 
(quoting Roberts v. Flanagan, 

, 886–87 (Minn. Ct. App. 1987)).  It makes 

no difference if a defendant failed to interpose a defense in the action.  

 (citing North 
Tel, Inc. v. Brandl, 

 (Bankr. D. Minn. 1995)).  In the state-court 
complaint, Midland alleged it purchased and owned the debt.  ECF No. 16 at 13–14.  And 
Midland’s ownership of the debt was a fact essential to granting the default judgment in 
Midland’s favor.  As for the fourth element, Delgado argues defective service of process 
interfered with her full and fair opportunity to be heard.  But Delgado’s allegations that 
service was defective are conclusory.  And as will be explained when addressing the merits 

of Delgado’s FDCPA claims, representations in the summons did not render it fatally 
defective.  Therefore, Delgado is collaterally estopped from bringing an FDCPA claim 
premised on the fact that Midland did not own the debt.                   
                           B                                         
                           1                                         

Now turn to the merits of Delgado’s FDCPA claims.  Under 15 U.S.C. § 1692f, debt 
collectors are prohibited from:                                           
     us[ing] unfair or unconscionable means to collect or attempt to 
     collect any debt.  Without limiting the general application of  
     the foregoing, the following conduct is a violation of this     
     section:                                                        

     (1) The collection of any amount (including any interest, fee,  
     charge, or expense incidental to the principal obligation) unless 
     such amount is expressly authorized by the agreement creating   
     the debt or permitted by law.                                   

Under the relevant statutory provisions in § 1692e:                       
     A  debt  collector  may  not  use  any  false,  deceptive,  or  
     misleading representation or means in connection with the       
     collection  of  any  debt.    Without  limiting  the  general   
     application  of  the  foregoing,  the  following  conduct  is  a 
     violation of this section:                                      

     (5) The threat to take any action that cannot legally be taken or 
     that is not intended to be taken.                               
     (10) The use of any false representation or deceptive means to  
     collect or attempt to collect any debt or to obtain information 
     concerning a consumer.                                          

15 U.S.C. § 1692e.  “A violation of the FDCPA is reviewed utilizing the unsophisticated-
consumer standard.”  Strand v. Diversified Collection Serv., Inc., 

 (8th 
Cir.  2004).    This  standard  is  “designed  to  protect  consumers  of  below  average 
sophistication or intelligence without having the standard tied to ‘the very last rung on the 
sophistication ladder.’”  Duffy v. Landberg, 

, 874 (8th Cir. 2000) (quoting 
Taylor v. Perrin, Landry, deLaunay & Durand, 

 (5th Cir. 1997)).  
While protecting “the uninformed or naïve consumer,” the standard “also contains an 
objective element of reasonableness to protect debt collectors from liability for peculiar 
interpretations of collection letters.”  Strand, 380 F.3d at 317–18.      
                           2                                         
                           a                                         

Delgado’s declaration-related FDCPA claims—her only remaining claims—will be 
dismissed because the challenged statements were not false or misleading.  Delgado alleges 
Midland’s declaration filed in state court violated the FDCPA because it falsely represented 
that Delgado had been “duly served” and was “in default.”  Pl.’s Mem. in Opp’n at 2.  
Delgado acknowledges receiving Midland’s summons, Compl. ¶ 20, but contends that the 

summons was fatally defective because it misrepresents Minnesota Rule of Civil Procedure 
5.02(a)(2).  The summons states, “YOU WILL LOSE YOUR CASE IF YOU DO NOT   
SEND A WRITTEN RESPONSE TO THE COMPLAINT TO THE PERSON WHO                
SIGNED THIS SUMMONS,” Compl. ¶ 24, but Rule 5.02(a)(2) allows defendants to hand 
deliver an answer.  Because Delgado does not challenge any other aspect of service, the 
question is whether the contents of the summons rendered the summons defective. 
A summons is defective if it fails to “give defendant the notice which the [rule] 

directs should be given.”  Tharp v. Tharp, 

 (Minn. 1949); see also Tullis 
v. Federated Mut. Ins. Co., 

 (Minn. 1997) (“Service of process in a 
manner not authorized by the rule is ineffective service.”).  Rule 4.01 governs the contents 
of a summons as follows:                                                  
     The summons shall state the name of the court and the names     
     of the parties, be subscribed by the plaintiff or by the plaintiff’s 
     attorney, give an address within the United States where the    
     subscriber may be served in person and by mail, state the time  
     within which these rules require the defendant to serve an      
     answer, and notify the defendant that if the defendant fails to 
     do  so  judgment  by  default  will  be  rendered  against  the 
     defendant for the relief demanded in the complaint.             
Minn. R. Civ. P. 4.01.  Because Rule 4.01 governs the contents of a summons, a summons 
that violates Rule 4.01 is legally defective.  Wiley v. Portfolio Recovery Assocs., LLC, No. 
20-cv-00737 (SRN/KMM) et al., 

, at *5 (D. Minn. Mar. 1, 2021).  
However, Minnesota law only requires substantial compliance with its service-of-process 
rules.  Haas v. Brandvold, 

 (Minn. Ct. App. 1988).  The requirements 
should be “given a liberal construction to avoid defeating an action on account of technical 
and formal defects which could not reasonably have misled or prejudiced the defendant.”  
Tharp, 

.                                                   
Delgado  has  not  identified  any  requirement  in  Rule  4.01  that  is  absent  from 
Midland’s summons.  Although a summons must include an “address where the subscriber 
may be served in person and by mail,” Rule 4.01 does not require summonses to detail how 
a recipient may send an answer.7  Nor is it clear that additional misleading information 
would render the summons defective.  Gould v. Johnston, 

 (1877) (“The 

summons must notify the defendant of the filing of the complaint, allow him the proper 
time to answer . . . .  If there be anything more in the summons by which defendant is 
misled, it does not affect the jurisdiction; but the defendant’s relief must be got by applying 
to the court below.  If he is not so misled, then the redundant matter is harmless.”).  Delgado 
cites no legal authority to support her theory that misrepresenting Rule 5.02(a)(2) would 

render the summons defective.  See generally, Pl.’s Mem. in Opp’n at 15–22.  And as will 
be discussed in more detail shortly, the summons does not misrepresent Rule 5.02(a)(2) 
because the summons explains: “You must give or mail to the person who signed this 
Summons a written response called an Answer.”  ECF No. 16 at 12–13.  Moreover, 
Midland used a court-form summons.  Compl. ¶ 52.  To hold Midland’s court-form 

summons was fatally defective would mean countless Minnesota lawsuits have been served 
with fatally defective summons.  That sweeping conclusion is not merited here. 
Delgado counters that “the Court must accept as true [Delgado’s] allegations that 
service was defective[.]”  Pl.’s Mem. in Opp’n at 12.  Not so.  Courts are not required to 
accept as true conclusory allegations, such as Delgado’s allegation that “fatal defects in the 

Summons rendered service ineffective.”  Compl. ¶ 29.  Nor is Delgado’s reliance on Wiley 
v. Portfolio Recovery Assocs., LLC, 

, persuasive.  Wiley involved a 

7    By contrast, Rule 5.02(a)(2) only describes acceptable methods of service; it does 
not impose substantive requirements on the contents of a summons.         
violation of Rule 4.01, the Minnesota Rule of Civil Procedure governing the content of a 
summons.  Id. at *5 (“Like each of the state courts to address this issue, the Court finds 
that the summons did not comply with Rule 4.01.”).  In fact, the summons in Wiley included 

the same language Delgado challenges here: “YOU WILL LOSE YOUR CASE IF YOU 
DO NOT SEND A WRITTEN RESPONSE TO THE COMPLAINT TO THE PERSON             
WHO SIGNED THIS SUMMONS.”  Id. at *1.  But absent from Wiley is any discussion 
that such language could render a summons fatally defective.              
                           b                                         

Although Delgado’s summons-related claims will be dismissed for lack of Article 
III standing, they would alternatively be dismissed for failing to state a claim.  Delgado 
claims the state-court summons violated § 1692f(1), § 1692e(5), and § 1692e(10).   
A debt collector violates § 1692f(1) by “attempting to collect money not permitted 
by law.”  Demarais, 

.  “A plaintiff who pleads a violation of § 1692f(1) 

based on an action not ‘permitted by law’ must necessarily plead that another law, not the 
FDCPA,  was  violated.”    Klein  v.  Stewart  Zlimen  &  Jungers,  Ltd.,  No.  18-cv-658 
(JRT/ECW), 

, at *4 (D. Minn. Jan. 2, 2019).  Delgado’s only theory is that 
the summons was “contrary” to Minnesota Rule of Civil Procedure 5.02(a)(2).  See Compl. 
¶¶ 25–26.  But Delgado has not plausibly alleged the summons violated Rule 5.02(a)(2) 

because Rule 4.01, not Rule 5.02(a)(2), governs the contents of summons.  Therefore, 
Delgado’s summons-related § 1692f(1) claim fails to state a claim.        
For similar reasons, Delgado’s § 1692e(5) claim falls short.  Her theory is that the 
summons was defective, making the statement “YOU WILL LOSE YOUR CASE IF YOU 
DO NOT SEND A WRITTEN RESPONSE TO THE COMPLAINT TO THE PERSON             
WHO SIGNED THIS SUMMONS,” a false threat.  Pl.’s Mem. in Opp’n at 15.  Although 
a defective summons can render the required default-warning a false threat, see Wiley, 

, at *5, Midland’s summons was not defective.  Because Delgado has not 
plausibly alleged service of process was ineffective, she fails to plausibly allege the threat 
to obtain default was false or misleading.  And true to its word, Midland went on to obtain 
the default judgment. 8                                                   
Deciding whether the same language in the state-court summons was misleading—

in violation of § 1692e(10)—requires more analysis but ends at the same result.  Delgado 
contends the statement “YOU WILL LOSE YOUR CASE IF YOU DO NOT SEND A      
WRITTEN RESPONSE TO THE COMPLAINT TO THE PERSON WHO SIGNED THIS           
SUMMONS,” ECF No. 16 at 12, is misleading because Delgado could hand deliver an 
answer.  But that statement must be read in context.  The second paragraph of the summons 

reads:                                                                    
     YOU MUST REPLY WITHIN 21 DAYS TO PROTECT                        
     YOUR RIGHTS.  You must give or mail to the person who           
     signed this Summons a written response called an Answer         
     within  21  days  of  the  date  on  which  you  received  this 
     Summons.  You must send a copy of your Answer to the person     
     who signed this Summons located at Messerli & Kramer P.A.,      
     3033 Campus Drive, Suite 250, Plymouth, MN 55441.               


8    Delgado’s theory might also be that the threat of default was false because Delgado 
could hand deliver an answer.  See Compl. ¶ 46.  To the extent this is the case, her claim is 
based on the same misrepresentation as her § 1692e(10) claim, and therefore her § 1692e(5) 
claim would fail to state a claim for the same reason her § 1692e(10) claim fails.  
ECF No. 16 at 12.  The first sentence instructs the defendant to “give or mail” a response.  
Id.  The second sentence replaces give or mail with send.  Id.  Given this is the first 
paragraph describing how the defendant must respond to the summons, and “give or mail” 

precedes “send,” Delgado’s interpretation that the summons “required [her] to mail a 
written answer to the complaint,” Pl.’s Mem. in Opp’n at 15, is peculiar.  Send, defined as 
“to cause to be conveyed to a destination,” Send, The American Heritage Dictionary 750 
(5th Ed. 2012), is broader than mail, and at least includes the most common forms of 
personal service under Rule 5.02(a)(2).  The unsophisticated consumer standard “contains 

an objective element of reasonableness” to protect debt collectors from interpretations such 
as  Delgado’s  in  this  case.    Strand,  380  F.3d  at  317–18    When  read  in  context,  an 
unsophisticated consumer would not believe they are required to mail a response or unable 
to hand deliver a response.9                                              
Moreover,  courts  have  expressed  skepticism  of  FDCPA  claims  based  on 

misrepresentations in court forms.10  Lauber v. Lawrence & Morris, No. 16 C 11050, 

, at *4 (N.D. Ill. Sept. 20, 2017) (“[B]oth McHenry and St. Clair County 

9    Although the standard is objective, it is worth noting Delgado does not allege she 
was misled by the summons.                                                

10   Identical language is recommended by a Minnesota Judicial Branch form and the 
Minnesota Practice Series.  Minnesota Rules of Civil Procedure Appendices and Forms, 
Minnesota Judicial Branch, https://www.mncourts.gov/SupremeCourt/Court-Rules/Rules-
of-Civil-Procedure-Appendices-and-Forms.aspx (last visited March 24, 2024); 15 Allan 
Zlimen, Minnesota Practice Series Collections Handbook Form 17:8 (3d ed. Sep. 2023 
Update); Roger S. Haydock, David F. Herr, and Sonja D. Peterson, Minnesota Practice 
Series Civil Practice Forms § 4:2 (3d ed. June 2023 Update); David F. Herr & Roger S. 
Haydock, Minnesota Practice Series Civil Rules Annotated Rule 84 (6th ed. May 2023 
Update).                                                                  
courts use the language used by Defendants in the citation, meaning that finding this 
caption to violate § 1692e would also cause all citations from these two counties to violate 
§ 1692e.  Considering that this language has been sanctioned by two other county court 

systems and that the language does not substantially differ from that provided by state 
statute, clearly not even a significant fraction of the population would be misled by the 
language Lauber complains of in the caption here.” (quotation marks omitted)); Yan Lin v. 
Portfolio Recovery Assocs., LLC, No. 19-CV-2910, 

, at *5 (N.D. Ill. 
Apr. 22, 2020); Scioli v. Goldman & Warshaw P.C., 

 (D.N.J. 

2009) (“Thus, Scioli essentially asks this Court to hold that the form summons created by 
the State of Hew [sic] Jersey, and used by countless lawyers and non-lawyers throughout 
the State, violates the FDCPA.  But such a holding would defy common sense and would 
not further the goals of the FDCPA.  Contrary to Scioli’s contention, using the form 
summons—a form specifically created for the unsophisticated defendant—helps to ensure 

that even the least sophisticated debtor will understand the true ‘character, amount, or legal 
status’ of his debt.”); cf. Powers v. Credit Mgmt. Servs., Inc., 

 (8th Cir. 
2015);  Abraham  v.  Midland  Funding,  LLC,  No.  114CV03485RWSJFK,  

, at *4–7 (N.D. Ga. Jan. 21, 2016).  The common use of these form summonses, 
without  any  resulting  confusion,  undermines  Delgado’s  theory  that  send  materially 

misrepresents Rule 5.02(a)(2).                                            
Even if the statement is technically false, false but non-material statements are not 
actionable under § 1692e(10).  Hill v. Accts. Receivable Servs., LLC, 

, 345–
46 (8th Cir. 2018).  As the Seventh Circuit has explained: “The statute is designed to 
provide  information  that  helps  consumers  to  choose  intelligently,  and  by  definition 
immaterial information neither contributes to that objective (if the statement is correct) nor 
undermines it (if the statement is incorrect).”  Hahn v. Triumph P’ships LLC, 

, 

757–58 (7th Cir. 2009).  Therefore, “a misleading statement must have the ability to 
influence a consumer’s decision.”  O’Rourke v. Palisades Acquisition XVI, LLC, 

 (7th Cir. 2011).  Given hand delivery would rarely (if ever) be more convenient 
than mailing for a consumer, there is no plausible reason to believe defendants would only 
respond to a complaint if summons more clearly informed them that they could hand 

deliver answers, and the widespread use of the challenged language in form summons 
promulgated  by  the  Minnesota  Judicial  Branch  and  Minnesota  Practice  Series,  any 
violation of § 1692e here is not material.  It would not have the ability to influence a 
consumer’s decision to respond to a complaint.                            
                           c                                         

Delgado’s notice-related claims would also alternatively be dismissed for failing to 
state a claim.  Delgado brings § 1692f(1), § 1692e(5), and § 1692e(10) claims.  She argues 
that language in the notice—“[Midland] will ask the Court to enter a judgment against you 
without  any  further  court  proceedings,  unless  you  mail  a  written  Answer  or  written 
response[,]”  Compl.  ¶  34—was  false  and  misleading  in  two  ways.    First,  because 

Minnesota Rule of Civil Procedure 5.02(a)(2) allows hand delivery, id. ¶ 35, and second, 
because “Minnesota law requires further court involvement before default judgment can 
be entered,” Pl.’s Mem. in Opp’n at 20.                                   
Delgado’s § 1692f(1) claim runs into a familiar problem: “A plaintiff who pleads a 

violation of § 1692f(1) based on an action not ‘permitted by law’ must necessarily plead 
that another law, not the FDCPA, was violated.”  Klein, 

, at *4.  But 
Delgado only alleges the notice “is contrary to 

.”  Compl. ¶ 49.  
Without identifying a specific violation of statute, Delgado’s conclusory allegations fail to 
state a claim.  And having reviewed the statute and notice of intent, no violation is evident.  

The “without any further court proceedings” language is not false or misleading, 
and therefore does not violate § 1692e(5) or § 1692e(10).  The notice does not state that 
the  state  court  will  enter  a  judgment  without  any  further  court  proceedings,  it  only 
represents that Midland “will ask” the state court to do so.  ECF No. 16 at 20.  And upon a 
request for default, a court may “hold a hearing” or “enter an administrative default 

judgment without a hearing if the court determines that the evidence submitted satisfies the 
requirements [of the statute].”  

(c).  Delgado nonetheless contends 
that “Minnesota law requires further court proceedings” because “an assigned-consumer 
debt plaintiff must persuade a district court that its admissible documentary evidence [is 
sufficient].”  Pl.’s Mem. in Opp’n at 21.  But the unsophisticated consumer is not expected 

parse terms such as court proceeding in such a technical manner.  Miller v. Javitch, Block 
& Rathbone, 

 (6th Cir. 2009).  That a state court must review submissions 
before entering an administrative default is beside the point.  Midland’s notice plainly and 
accurately “conveys the consequences of failing [to respond].”  Peters v. Gen. Serv. 
Bureau, Inc., 

 (8th Cir. 2002).  “The unsophisticated consumer test is 
a practical one, and statements that are merely ‘susceptible of an ingenious misreading’ do 
not violate the FDCPA.”  

 (quoting White v. Goodman, 

 (7th Cir. 

2000)).                                                                   
Deciding  whether  the  “unless  you  mail”  language  violates  §  1692e(5)  and 
§ 1692e(10) is a closer call.  Unlike the summons, the notice plainly directs the consumer 
to mail a response.  ECF No. 16 at 20.  But the challenged language is part of Minnesota 
Statute § 548.101.  Section 548.101 requires debt collectors to mail consumers a notice of 

intent before requesting the state court enter a default.  

(a)(7).  The 
statute includes a template notice of intent.  

  A debt collector’s notice of intent “must 
be substantially” in the form of the template.  

  When the Minnesota Legislature passed 
the bill into law in 2013, 2023 Minnesota Laws Chapter 104, sec. 3, defendants could hand 
deliver answers.  In other words, the Minnesota Legislature could have included personal 

service or other methods of service in the template.  It decided not to.  To conclude the 
Minnesota Legislature’s template is a “false, deceptive, or misleading representation” of 
Minnesota’s Rules of Civil Procedure would be an absurd result.  After all, the notice of 
intent provides an extra layer of protection to a consumer by requiring the debt collector to 
mail the notice after the debtor has failed to answer the summons.  And there may be 

compelling reasons, such as clarity and readability, that the Minnesota Legislature decided 
to only include mail (and not alternative forms of personal service) in its template.  Just as 
courts are reluctant to conclude that court forms violate the FDCPA, that rationale applies 
with far greater force to a form template has gone through the legislative process and been 
signed into law.  For these reasons, and others discussed in the context of Midland’s 
summons, any technical violation of the FDCPA is not material here.       

Based on the foregoing, and on all the files, records, and proceedings herein, IT IS 
ORDERED THAT Defendant Midland Credit Management, Inc.’s Motion to Dismiss 
[ECF No. 13] is GRANTED as follows:                                       
1.   The  Complaint’s  summons-  and  notice-related  claims  are  DISMISSED 
     WITHOUT PREJUDICE for lack of subject-matter jurisdiction; and  

2.   In all other respects, the Complaint is DISMISSED WITH PREJUDICE. 
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

Dated: March 25, 2024              s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court