The Sixth Circuit Court of Appeals has reversed a lower court’s ruling in favor of a defendant that was sued for violating the Fair Debt Collection Practices Act, ruling that all the information that can be viewed through the glassine window portion of an envelope containing a collection letter matters under Section 1692f(8) of the statute.
A copy of the ruling in the case of Donovan v. FirstCredit can be accessed by clicking here.
The plaintiff received a collection letter from the defendant. The letter was placed in an envelope that had two glassine windows, one on top of the other. The bottom window contained the defendant’s name and mailing address. Visible in the top window was an empty checkbox followed by the phrase, “Payment in full is enclosed.” In some cases, also visible in the top window was another empty checkbox and the phrase, “I need to discuss this further. My phone number is _________” directly under the payment in full checkbox.
The plaintiff filed suit, alleging the letter violated Section 1692f(8) of the FDCPA, which prohibits the use of any language or symbol, other than the debt collector’s address on any envelope when communicating with a consumer via the mail. The defendant filed for a motion for judgment on the pleadings, arguing the language visible in the top window was benign, an argument with which a District Court judge agreed.
The plaintiff appealed, and the defendant argued that a literal reading of the provision would lead to “absurd results,” and that a benign language exception is needed, so that markings that do not indicate that the communication is from a debt collector are not liable under the statute.
Noting that there is a split at the Circuit Court level on how 1692f(8) is being interpreted, the Sixth Circuit sought its own answer, determining that a “literal reading of the unambiguous text” of 1692f(8) “does not lead to an absurd result, we have no cause to reach beyond the text and rely on legislative history or administrative guidance to read a ‘benign language’ exception into 1692f(8).”
The defendant attempted to argue that Congress did not explicitly exempt the consumer’s address and postage when it issued its blanket prohibition on “any language or symbol” other than the debt collector’s address. The prohibition, the defendant argued, “is so sweeping that it inadvertently forbids language and symbols required of mail communication, even though Congress plainly intended to endorse debt collectors’ ability to communicate with consumers by mail.”
But the Sixth Circuit noted that the provision “plainly sanctions” the use of the mails to communicate with a debtor and therefore also sanctions the use of language and symbols required for sending communications through the mail.
