Circuit Split Grows on Benign Language Exception for Debt Collection Envelopes

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The United States Court of Appeals for the Sixth Circuit has joined the split from holdings by the Fifth and Eighth Circuits regarding a “benign language” exception for debt collection letters. The Sixth Circuit instead joined with the Seventh Circuit in holding that the Fair Debt Collection Practices Act (“FDCPA”) does not contain a “benign language” exception to the requirement that the envelope for a debt collection letter contain no language other than that necessary to facilitate mail delivery. Donovan v. FirstCredit Inc.

In July 2019, Donovan sued FirstCredit for sending a medical bill with a glassine window exposing two check-boxes by the phrases “Payment in full is enclosed” and “I need to discuss this further.” Donovan argued that those phrases violated 15 U.S.C.A. § 1692(f)(8) by containing language other than that allowed by the statute.

The United States District Court for the Southern District of Ohio granted FirstCredit’s motion to dismiss the claim. The District Court agreed with FirstCredit that the FDCPA was intended to prohibit language indicating that the letter was an attempt to collect a debt. The District Court agreed with the Fifth and Eighth Circuits’ adoption of a “benign language” exception for “harmless words or symbols” that do not reveal that the letter concerns debt collection. The District Court further found that “payment enclosed” was not specific to debt collection and would not publicly reveal Donovan’s status as a debtor.

The Sixth Circuit reversed, agreeing with the Seventh Circuit that Section 1692(f)(8) expressly prohibited any language or symbol on an envelope other than that necessary to facilitate mail delivery. The Court disagreed with the Fifth and Eighth Circuits’ findings that literal application would lead to “bizarre results,” noting that use of the mail is clearly contemplated by the statute, and that the statute’s prohibition of any language or symbol on the envelope other than a business name and address provides an “easy-to-follow, predictable rule.” Accordingly, “Payment in full is enclosed” and “I need to discuss this further” were not within the statute’s itemized exemptions as they were not necessary for delivery of the letter, and the District Court erred in dismissing Donovan’s claim.

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