A district circuit has joined two Circuit Courts and numerous other districts in accepting the “benign language” exception to the Fair Debt Collection Practices Act (FDCPA), in this case dismissing a claim that an envelope with a barcode that contains the debtor’s account number violated the statute.
This District Court, the U.S. Court for the Southern District of Florida, is in the 11th Circuit, and follows similar rulings in the Fifth and Eighth Circuits as well. The case was Efran Martell v. ARS National Services.
A literal reading of the FDCPA bars 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 or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.”
That wording makes it seem that even putting the individual’s name on the outside of the envelope would make it illegal, which is why courts have started adopting the “benign language” exception, which allows collectors to use language or symbols that do not violate the spirit of the FDCPA. An individual’s account number does not violate the FDCPA, the District Court ruled.
Even though the 11th Circuit has not yet accepted the “benign language” exception, the District Court decided it would do so anyway.
The District Court rejected the Third Circuit’s ruling in Douglass v. Convergent Outsourcing that an account number is not benign. The tide appears to be turning against the Thur Circuit’s ruling.