In Preston v. Midland Credit Mgmt., No. 18-3119, 2020 U.S. App. LEXIS 1775 (7th Cir. Jan. 21, 2020), the Court of Appeals for the Seventh Circuit rejected a ‘benign language’ exception to section 1692f(8), finding that an envelope’s label “TIME SENSITIVE DOCUMENT” potentially violated the FDCPA.
Following his receipt of the letter, Mr. Preston filed this action in which he alleged that the language on the envelope, the language in the letter, and the combination of the two violated the FDCPA. Specifically, in Count I, he alleged that the phrase “TIME SENSITIVE DOCUMENT” violated § 1692f(8) because it was language other than Midland’s address that appeared on an envelope containing a debt collection letter. He also alleged that the envelope itself constituted a false representation of the character, amount, or legal status of a debt, under § 1692e(2)(A), as well a false or deceptive means to collect a debt under § 1692e(10). Count II made equivalent allegations on behalf of a class of consumers. Count III alleged that the envelope, together with the language of the discounted offers and the disclaimer that Midland was not obligated to renew any offers, “create[d] a false sense of urgency,” which constituted both a “false representation of—the character, [and] legal status of any debt” in violation of § 1692e(2)(A), and a “false representation or deceptive means to collect … a debt” under § 1692e(10).4 Count IV made equivalent allegations on behalf of the purported class. Counts V and VI alleged individual and class claims, respectively, that the discounted offers, standing alone, violated §§ 1692e(2)(A), 1692e(10), and 1692f(8). Finally, Count VII alleged that Midland’s letter violated the Illinois Consumer Fairness Act. Midland moved to dismiss the complaint. It first observed that the purpose of § 1692f(8), as set forth in the legislative history, was to prohibit debt collectors from using language or symbols that revealed that the letter concerned debt collection; it was not intended to “bar the use of harmless words or symbols.”5 It further noted that several courts, including the Courts of Appeals for the Fifth and Eighth Circuits, had adopted a “‘benign language’ exception” to § 1692f(8)’s absolute prohibition of the use of any symbol or language on the envelope of the debt collection letter.6 Because “TIME SENSITIVE DOCUMENT” did not suggest that the contents involved debt collection, Midland argued, this language fell within such an exception. . .The district court agreed with Midland and dismissed the complaint. It noted that two Courts of Appeals, the Fifth Circuit in Goswami v. American Collections Enterprise, Inc., 377 F.3d 488 (5th Cir. 2004), and the Eighth Circuit in Strand v. Diversified Collection Service, Inc., 380 F.3d 316 (8th Cir. 2004), “ha[d] accepted … a benign language exception” to § 1692f(8).13 On the basis of these authorities, the district court was persuaded to reject a literal interpretation. The court determined that the language “TIME SENSITIVE DOCUMENT” was indistinguishable from the phrases such as “priority mail” and “immediate reply requested” that the courts in Goswami and Strand had determined were benign. . .We respectfully disagree with the approach taken by our sister circuits. Adherence to the plain wording of § 1692f(8) does not, as Strand suggests, prohibit the use of a debtor’s address. Nor does the language prohibit pre-printed postage or the use of words such as “overnight mail.” The section plainly sanctions “use of the mails” to communicate with a debtor and therefore also sanctions the use of the language and symbols required for sending communications through the mail. It does not prohibit markings required by the United States Postal Service such as stamping or affixing language or symbols to ensure the successful delivery of the communication . . . In sum, the meaning of § 1692f(8) is clear: When a debt collector communicates with consumers through the mails, it may not use any language or symbol on the envelope except for its business name or address, as long as the name does not indicate that he is in the debt collection business. Turning to the facts here, there is no question that the language “TIME SENSITIVE DOCUMENT” appears on the envelope enclosing a communication to a consumer. It is equally apparent that the language at issue does not fall within the itemized exception set forth in subsection (8): It is not Midland’s name nor its address. The inclusion of this phrase thus violates § 1692f(8), and the district court erred in dismissing the claim set forth in Count I of Mr. Preston’s complaint.