Benign Language Does Not Violate The FDCPA

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The Fair Debt Collection Practices Act was enacted to eliminate abusive debt collection practices while ensuring collectors that refrain from abusive practices are not at a competitive disadvantage.  One such practice that Congress attempted to eliminate is addressed in § 1692f(8) of the FDCPA, which prohibits collectors from “using any language or symbol, other than the debt collector's address, on any envelope when communicating with a consumer by use of the mails.”  Last summer (2014), the Third Circuit heard an appeal from the Eastern District of Pennsylvania in Douglass v. Convergent Outsourcing and was asked to determine whether a collector that sends a letter with the consumer’s account number appearing through a glassine window on an envelope violated § 1692f(8). The Douglass court found that a visible account number was information identifying the consumer as a debtor and, therefore, prohibited by the FDCPA.  This ruling resulted in multiple claims by debtors arguing that collection letters they received violated the FDCPA because their account numbers could be seen through the glassine window.

However, since the Third Circuit’s ruling in Douglas, many courts including courts, in Illinois and New York, found that were was not FDCPA violation even if “benign language” could be seen through the glassine window.  On December 1 the Western District of Missouri joined these courts when they ruled in McShann v. Northland Group, Inc.  Just like the plaintiff in Douglass, McShann claimed that she received a letter from a collector with her account number visible through the glassine window on the envelope.  The McShann court commented that bizarre and absurd results would follow if courts were simply to following the plain language of the § 1692f(8) because that would lead to myriad possible claims if anything other than a name and address appeared on, or through, an envelope.  Recognizing that the intention of the FDCPA was to prohibit abusive practices the McShann court found that benign information appearing on an envelope, such as an account number which could mean anything or have no significance at all, does not violate the FDPCA.

Thus courts recognize that the FDCPA outlined practices that were harassing and abusive, and attempted to deter those types of practices.  While plaintiffs may continue to argue that certain actions that conflict with that is written in the FDCPA should be violations, courts are not going to award plaintiffs when the complaints are not in step with the purpose of the FDCPA.

For more information on the FDCPA or to request a review of your background check disclosure forms, contact Adam Hill at 312-334-3480 or ahill@messerstrickler.com.