6th Circuit Court of Appeals Joins 7th Circuit in Rejecting “Benign” Language Exception to 15 USC § 1692f(8), Contrary to the 5th and 8th Circuits.

In Donovan v. FirstCredit, Inc., No. 20-3485, 2020 U.S. App. LEXIS 39798 (6th Cir. Dec. 18, 2020) the Court of Appeals for the 6th Circuit reversed the trial court’s ruling granting FirstCredit’s motion for judgment on the pleadings and in doing so, rejected a “benign language” exception to 15 U.S.C. § 1692f(8) of  the Fair Debt Collection Practices Act (“FDCPA”). 15 U.S.C. § 1692f(8) limits the language and symbols that debt collectors may employ on an envelope when communicating with a consumer by mail.

The letter at issue contained two transparent glassine windows on the envelope, and depending on how the letter in the envelope was situated, different information was visible:

On or about April 11, 2019, Donovan received from FirstCredit a letter “demanding payment of a purported medical debt incurred with Mount Carmel Health System.” R. 11 (First Am. Compl. at ¶ 8) (Page ID #50). The letter came in an envelope with two transparent glassine windows on its face, stacked one on top of the other, together taking up most of the left half of the envelope. Id. at ¶ 9 & Ex. A (Page ID #50, 60). Because the letter, when folded, is smaller than the envelope containing it, the text visible through the glassine windows depends in part on where the letter is sitting within the envelope. See id. at ¶ 10 (Page ID #50). No matter how the letter is situated, Donovan’s name and address are always visible through the window located in the bottom left quadrant of the envelope. Id. at ¶ 11 (Page ID #51). Likewise, always visible through the window situated in the top left quadrant of the envelope is an empty checkbox followed by the phrase “Payment in full is enclosed.” [*3]  Id. at ¶ 11 (Page ID #51). Sometimes, a second empty checkbox followed by “I need to discuss this further. My phone number is    ,” is visible directly below the first. Id. at ¶ 12 (Page ID #51).

The 6th Circuit acknowledged there was a circuit split as to so-called “benign language” exception, but declined to read such an exception into 15 U.S.C. § 1692f(8):

The parties’ dispute arises in the context of a newly formed circuit split as to the proper interpretation of § 1692f(8), which derives from a disagreement as to whether the provision’s plain [*12]  text governs its application. On one side of the circuit split, the Seventh Circuit has held that § 1692f(8)’s plain text unambiguously prohibits markings on envelopes other than those “required for sending communications through the mail,” the debt collector’s return address, and, in limited prescribed circumstances, the debt collector’s name. Preston v. Midland Credit Mgmt., Inc., 948 F.3d 772, 782, 784 (7th Cir. 2020). On the other side of the split, the Fifth and Eighth Circuits have held that § 1692f(8) is ambiguous or that it leads to absurd results, invoking legislative history and administrative guidance to read a “benign language” exception into the statute. Strand, 380 F.3d at 319; Goswami, 377 F.3d at 494. This court has not yet decided whether § 1692f(8) is amenable to a “benign language” exception.

For the reasons that follow, we hold that Donovan has stated a claim for relief under § 1692f(8), the plain text of which forecloses a “benign language” exception. Because 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).

Previously, Severson & Werson attorneys Scott Hyman and Austin Kenney published an article about the judicial reaction to the 3rd Circuit Court of Appeals’ decision in Douglass v. Convergent Outsourcing, including the benign language exception. The article is available here. In Douglass, the 3rd Circuit held that a sequence of numbers visible through the glassine window on an envelope containing a collection letter violated the federal FDCPA’s proscription of “unfair or unconscionable” debt collection practices. However, the 3rd Circuit did not consider whether a benign language exception exists, as the 3rd Circuit determined the language at issue in Douglass was not benign.