Anenkova v. Van Ru Credit Corp.

201 F. Supp. 3d 631, 2016 WL 4379296, 2016 U.S. Dist. LEXIS 108950
CourtDistrict Court, E.D. Pennsylvania
DecidedAugust 17, 2016
DocketCIVIL ACTION NO. 15-4968
StatusPublished
Cited by4 cases

This text of 201 F. Supp. 3d 631 (Anenkova v. Van Ru Credit Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anenkova v. Van Ru Credit Corp., 201 F. Supp. 3d 631, 2016 WL 4379296, 2016 U.S. Dist. LEXIS 108950 (E.D. Pa. 2016).

Opinion

MEMORANDUM OPINION

Savage, District Judge

In this action brought under the Fair Debt Collection Practices Act (“FDCPA”), we must decide whether there is a benign language exception to 15 U.S.C. § 1692f(8), which prohibits a debt collector from using “any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer”; and if so, whether the barcode visible through a glassine window of an envelope is benign.

Lyudmilla Anenkova claims Van Ru Credit Corporation used unlawful tactics to collect a debt in violation of the FDCPA.1 She alleges that Van Ru, through a mail vendor, sent a debt collection letter with a barcode visible through a glassine window in the envelope’s return address field. She contends the barcode, when scanned, reveals “personal, identifying information.”2 Van Ru argues that the barcode does not violate the FDCPA because it does not disclose that the sender is a debt collector or that Anenkova is a debtor.

We conclude there is a benign language exception to § 1692f(8). Because we find that the barcode was benign, there is no violation of § 1692f(8). Therefore, the defendant is entitled to judgment as a matter of law.

Background

On August 4, 2015, Calvary Portfolio Services, LLC, assigned Anenkova’s Bank of America credit card account to Van Ru.3 The next day, Van Ru sent Anenkova a letter seeking to collect a credit card debt of $12,261.45.4 The letter was printed, folded, placed in the envelope and mailed by RevSpring, a mail vendor hired by Van Ru.5

The envelope had two glassine windows, one for the mailing address and the other for the return address.6 Anenkova claims and Van Ru disputes that the “mail return barcode” on the enclosed letter was visible through the return address window.7 Examination of the envelope shows that it was clearly visible.8

When scanned, the barcode reveals a sequence of twenty-five numbers, consisting of RevSpring’s own five-digit customer identification number for Van Ru, an eight-number “identifier” for the particular mailing, and twelve numbers for the date and time of the mailing.9 RevSpring uses the eight-digit “identifier” to locate each piece of mail returned as undeliverable in its data file and then match it to Van Ru’s account number for the debtor.10 The num[633]*633bers do not contain or resemble Anenko-va’s account number with Van Ru.11 They are created by and for RevSpring to generate reports to Van Ru. The numbers in the barcode mean something to RevSpring and nothing to Van Ru.

Moving for summary judgment, Van Ru contends that the barcode does not violate the FDCPA because it does not disclose Anenkova’s personal, identifying information or that the communication was a debt collection effort. Van Ru essentially argues that the barcode is subject to the benign language exception to § 1692f(8).12Anenko-va contends there is no such exception; and, even if there was, the barcode violates the FDCPA because it reveals “personal identifying information” that can be linked to her account number.13

Analysis

In determining whether the barcode in this case violates § 1692f(8), we must first consider whether there is a benign language exception to § 1692f(8).

Section 1692f(8) of FDCPA prohibits debt collectors from:

[ujsing 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.

15 U.S.C. § 1692f(8).

Read literally, the statute permits only the sender’s name and address to appear on the envelope, and not the intended recipient’s name and address. It prohibits even innocuous or harmless markings on the envelope.

No circuit court has adopted a literal interpretation of the statute. The Fifth and the Eighth Circuits, the only circuits to interpret the provision, have rejected such a restrictive' reading: Strand v. Diversified Collection Serv., Inc., 380 F.3d 316, 319 (8th Cir.2004); Goswami v'. Am. Collections Enter., Inc., 377 F.3d 488, 494 (5th Cir.2004). Instead, they have adopted the benign language exception. Those courts held that the statute proscribes only markings that identify the mailing as a debt collection matter or reveal the debtor’s financial predicament and personal information. See Strand, 380 F.3d at 319; Gos-wami, 377 F.3d at 494. Any other markings are considered benign. Id.

The Fifth Circuit concluded the statute was ambiguous because there was more than one reasonable way to interpret it. Goswami, 377 F.3d at 494. It then looked to the legislative history and the Federal Trade Commission’s (“FTC”) interpretation. Id. at 494. The court observed that the Senate characterized the prohibition as applying to “symbols on envelopes indicating that the contents pertain to debt collection.” Id. (citing S. Rep. No. 95-382 at 8 (1977), as reprinted in 1977 U.S.C.C.A.N. 1695, 1702). Implementing the statute, the FTC exempts “harmless words and symbols” from the ambit of § 1692f(8), and permits language that does not “suggest the purpose of the communication.” Gos-wami, 377 F.3d at 494. (citing Statements [634]*634of General Policy or Interpretation Staff Commentary On the Fair Debt Collection Practices Act, 53 Fed. Reg. 50097-02, 50108 (Dec. 13,1988)).

The Eighth Circuit, noting that a literal interpretation of the statute would render an absurd result, held that a corporate logo and the words “personal and confidential” and “immediate reply requested” on a debt collection envelope did not violate § 1692f(8). Strand, 380 F.3d at 318-19. The court found this language and the logo benign because they did not reveal that the contents pertained to debt collection.

The Third Circuit has not adopted the benign language exception. Nor has it rejected it. When presented the issue, it declined to decide it. Douglass v. Convergent Outsourcing, 765 F.3d 299, 303, 306 n. 9 (3d Cir.2014).

Though it did not decide whether there is a benign language exception, the Douglass court did not rule it out. Id. Without rejecting or disagreeing with the Fifth and Eighth Circuits, the Douglass court distinguished those cases. It noted that Strand and Goswami, unlike the case before it, involved innocuous markings that “did not intimate the contents of the letters to pertain to debt collection.” Id. at 305.

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201 F. Supp. 3d 631, 2016 WL 4379296, 2016 U.S. Dist. LEXIS 108950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anenkova-v-van-ru-credit-corp-paed-2016.