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Douglass v. Convergent Outsourcing

United States Court of Appeals, Third Circuit

August 28, 2014

COURTNEY DOUGLASS, on behalf of herself and all others similarly situated, Appellant
v.
CONVERGENT OUTSOURCING, formerly known as ER SOLUTIONS, INC.

Argued April 8, 2014

On Appeal from the District Court for the Eastern District of Pennsylvania D.C. Civil No. 2-12-cv-01524 (Honorable Joel H. Slomsky)

Cary L. Flitter, Esq. [ARGUED] Andrew M. Milz, Esq. Flitter Lorenz SaraEllen M. Hutchison, Esq. Counsel for Appellant

Richard J. Perr, Esq. [ARGUED] Fineman, Krekstein & Harris 1735 Ed W. Walton, Esq. Bush & Ramirez 101 Metro Drive Terrell, TX 75160 Counsel for Appellee

Before: FISHER and SCIRICA, Circuit Judges, and [*] MARIANI, District Judge.

OPINION

SCIRICA, CIRCUIT JUDGE.

In this case we are asked to decide whether the disclosure of a consumer's account number on the face of a debt collector's envelope violates § 1692f(8) of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Section 1692f(8) limits the language and symbols that a debt collector may place on envelopes it sends to consumers. The District Court held the account number met a "benign language" exception to § 1692f(8) and granted summary judgment to the debt collector. We will vacate and remand.[1]

I.

On May 16, 2011, Plaintiff Courtney Douglass received a debt collection letter from Convergent Outsourcing ("Convergent") regarding the collection of a debt that Douglass allegedly owed T-Mobile USA. Visible on the face of the letter, above Douglass's name and address, was the following sequence of numbers representing Douglass's account number with Convergent: "R-xxxx-5459-R241." This number does not refer or relate to her account with T-Mobile USA. Convergent mailed the letter in an envelope with a glassine window. When mailed, the top portion of the letter, including Douglass's account number, was visible through the window. Also visible through the window was Douglass's name and address, a United States Postal Service bar code, and a quick response ("QR") code, which, when scanned by a device such as a smart phone, revealed the same information as that displayed through the glassine window, as well as a monetary amount corresponding to Douglass's alleged debt.

This action was filed in the United States District Court for the Eastern District of Pennsylvania.[2] The complaint was amended to add Douglass as the sole named plaintiff, as well as to initiate a putative class action on behalf of residents of Montgomery County, Pennsylvania, who received similar letters from Convergent exposing their account numbers. The operative Second Amended Complaint alleges when Convergent disclosed Douglass's account number, both on the face of the envelope and embedded in the QR code, it violated § 1692f(8) of the FDCPA, which prohibits "using any language or symbol" other than a debt collector's name and address on an envelope. 15 U.S.C. § 1692f(8). Convergent moved for summary judgment under Fed.R.Civ.P. 56, contending the account number qualified as "benign language" that § 1692f(8) was not meant to prohibit.

The District Court granted summary judgment to Convergent. The court reasoned that a strict interpretation of § 1692f(8) would contradict Congress's true intent, aimed at barring markings on an envelope that would reveal the letter to pertain to debt collection or harass or humiliate a consumer. Accordingly, the court adopted a benign language exception to the statute, limiting § 1692f(8)'s reach to language or symbols that either (1) signal the letter's purpose of debt collection or (2) tend to humiliate, threaten, or manipulate the recipient of the letter. The court concluded the account number qualified as benign language because it neither indicated the purpose of the letter nor threatened, harmed, or manipulated Douglass. This timely appeal followed.[3]

II.

On appeal, Douglass contends the language of § 1692f(8) is unambiguous and plainly applies to Convergent's disclosure of her account number on the face of the envelope.[4] Convergent maintains that to enforce the plain meaning of § 1692f(8) would lead to absurd results and the statute must be read to allow for certain benign language, including account numbers, on the face of the envelope. In reply, Douglass insists that even if § 1692f(8) included an exception for benign language, her account number with Convergent is not benign. We agree with Douglass that § 1692f(8) applies to this set of facts and her account number is not benign.

Congress enacted the FDCPA in 1977 "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). These abusive debt collection practices, Congress found, lead to personal bankruptcies, marital instability, the loss of jobs, and, relevant to our analysis, "invasions of individual privacy." Id. ยง 1692(a). "As remedial legislation, the FDCPA must be broadly construed ...


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