Appeals Court Rules Emailed Validation Notice Not a ‘Communication’ Under FDCPA

The Court of Appeals for the Seventh Circuit has issued its long-awaited ruling in Lavallee v. Med-1 Solutions, affirming a lower court’s ruling that sending validation notices via email does not meet the Fair Debt Collection Practices Act’s definition of “communication.”

A copy of the ruling can be accessed by clicking here.

The plaintiff had two medical debts placed with the defendant for collection. The defendant send two emails to the plaintiff, which included links to access the validation notices as required under Section 1692g(a) of the FDCPA. The plaintiff did not recall seeing the emails in her inbox and never accessed them.

Months later, the plaintiff received a phone call from the original creditor about another bill. During that conversation, she learned about the two debts that had been placed with the defendant. She called the defendant, and the defendant did not provide any of the 1692g(a) disclosure requirements during the call or mail anything to the plaintiff after the call was concluded.

The plaintiff filed suit, alleging the defendant failed to make the required initial disclosures during the phone call she had with the defendant. The defendant introduced its emails as proof it had sent the validation notice, but a Magistrate judge granted summary judgment for the plaintiff, ruling the validation notices were never sent because the plaintiff never downloaded them. As well, the delivery method of the validation notices made it unlikely that they would have ever been viewed.

The defendant attempted to argue the plaintiff lacked standing to sue because she never suffered a concrete injury since she could not have deemed the emailed validation notices to be inadequate since she never opened them. But since the plaintiff didn’t know about the emails until the defendant introduced them in court, the Appeals Court ruled that the defendant’s standing challenge was “meritless.”

The defendant also argued that the emails should count as the initial communication with the plaintiff “because they contain the name and email address of the debt collector.” Other Appeals Courts have ruled that to meet the definition of “communication” under the FDCPA, there has to be at least an implication of the existence of a debt conveyed in the message.

None of the cases cited by the defendant as evidence that the emails constituted an initial communication were accepted by the Appeals Court.

Furthermore, the Appeals Court took issue with the six steps that were needed in order for the plaintiff to have actually accessed the validation notice.

To access the validation notice, Lavallee would have had to (1) click on the “View SecurePackage” hyperlink in the email; (2) check a box to sign for the “SecurePackage”; (3) click a link to open the “SecurePackage”; (4) click on the “Attachments” tab; (5) click on the attached .pdf file; and (6) view the .pdf with Adobe Acrobat or save it to her hard drive and then open it.

At best, the emails provided a digital pathway to access the required information. And we’ve already rejected the argument that a communication “contains” the mandated disclosures when it merely provides a means to access them.

The defendant attempted to compare the link in its email to the information contained in a letter inside an envelope, but the analogy fell on deaf ears.

An envelope is merely a means of transmitting a letter bearing a substantive message. The letter in Med-1’s analogy clearly “contains” the information it imparts. Conversely, Med-1’s emails contained nothing more than hyperlinks—gateways to an extended process that ends in the relevant message. The proper ana- logue is a letter that provides nothing more than the address of a location where the message can be obtained. That hypothetical letter, like the emails here, doesn’t “contain” the relevant information.

The Consumer Financial Protection Bureau had filed an amicus brief, seeking the affirmation of the lower court’s ruling on other grounds; namely that the defendant failed to “satisfy the conditions” of the E-Sign Act before the emails were sent.

But because the Appeals Court affirmed on other grounds and because “we don’t usually consider arguments introduced on appeal by an amicus,” the Appeals Court chose not to address this argument.

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