Seventh Circuit splits from Fifth and Eight Circuits rejecting “benign-language exception” to FDCPA’s prohibition on writing on envelopes

In Preston v. Midland Credit Management, Inc., No. 18-3119 (Jan. 21, 2020), the Seventh Circuit reversed a district court’s order of dismissal, holding that the language “TIME SENSITIVE DOCUMENT” on the envelope of a dunning letter violated § 1692f(8) of the FDCPA. In doing so, it refused to recognize the benign‐language exception adopted by the Fifth and Eight Circuits.

The creditor in Preston sent the borrower a debt collection letter. The letter was enclosed in an envelope containing the words “TIME SENSITIVE DOCUMENT” on the face of the envelope. Thereafter, the borrower brought suit against the creditor alleging, inter alia, that the inclusion of language on the outside of the envelope violated §1692f(8) of the FDCPA, which prohibits any writing on the outside of the envelope containing a debt collection letter other than the creditor’s address, other than a creditor’s name, but only if the creditor’s name does not disclose the sender’s nature as a debt collector. The district court granted the creditor’s motion to dismiss  choosing to adopt the “benign-language exception” used by other circuits in finding the phrase “TIME SENSITIVE DOCUMENT” benign as it did not suggest that the contents involved debt collection.

The Seventh Circuit analyzed §1692f of the FDCPA and found that, under the plain language of the statute, the use of any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by mail constitutes an unfair or unconscionable means to collect or attempt to collect a debt. The creditor argued that such a literal application of §1692f(8) would lead to absurd results, citing both Strand v. Diversified Collection Service, Inc., 380 F.3d 316 (8th Cir. 2004) and Goswami v. American Collections Enterprise, Inc., 377 F.3d 488 (5th Cir. 2004) which held there was a “benign-language exception” to §1692f(8).In those cases, the courts found that “benign-language exception” is supported by the legislative history and intent of the drafters.

The Seventh Circuit rejected this position, instead holding that the statutory language of §1692f(8) neither leads to absurd results nor is ambiguous. Therefore, the Court need only adhere to the bright line rule found in the plain language of §1692f(8). Thus, the Seventh Circuit held that the meaning of § 1692f(8) is clear: When a debt collector communicates with consumers through mail, it may not use any language or symbol on the envelope except for its business name or address, as long as the name does not indicate that he is in the debt collection business.

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