Going For The Gold With Jonathan S. Goodgold
On July 5, 2017, the United States District Court for the District of New Jersey issued its opinion in Stever v. Harrison, 2017 WL 2869505 (D.N.J.) (not for publication). At issue in Stever, was whether a class action matter could proceed against a debt collector attorney who sent out demand letters in envelopes containing glassine windows that exposed a bar code. Judge Jose L. Linares denied the motion of Defendants to dismiss and allowed the case to continue.
The vast majority of the opinion dealt with standing and whether the class made the showing of an injury in fact. I do not want to address this issue in this article. I want to focus on the Fair Debt Collection Practices Act (FDCPA) implications.
By way of background, the FDCPA provides detailed instruction of what is an unfair act at 15 U.S.C. § 1692f(8). That definition provides in relevant part:
A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(8) 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.
The Court rejected Defendants’ arguments to extend Fifth and Eighth Circuits interpretations of this section to allow for a “benign” symbol exception. The Court noted that the Third Circuit had yet to determine whether such an exception exists. See Stever, at *7. Regardless, the Court held that the barcode at issue would not fall within such an exception if it in fact exists in this Circuit. Id. Of note the Court found that:
Much like the envelopes in Douglass with visible account numbers, the envelopes at issue in this case included symbols that contained core information relating to the debtor’s financial predicament. These symbols, therefore, implicate the core priovacy concerns that the FDCPA was enacted to protect.. . .
In sum, the Court finds that Plaintiffs have sufficiently pled a cause of action under the FDCPA. The Court’s conclusion is consistent with the requirement that remedial legislation such as the FDCPA is to be construed broadly.
Id., at *8.
This case provides further guidance and warnings to debt collectors–be careful as the Court’s will broadly interpret the remedial purposes of the FDCPA. And it is further clear that any markings other than the name and address of the debtor should not be on envelopes or visible through glassine windows, otherwise it could be problematic for debt collectors. Case numbers, account numbers, or any other way you identify your collection matter, even if in code or barcode, should not and cannot be visible, otherwise you run afoul of the FDCPA.
Jonathan S. Goodgold, Esq. became Of Counsel to the firm in January 2015 and merged his own law firm into The Beinhaker Law Firm, LLC as of January 1, 2016. Jonathan had his own law firm for over seven years focusing on employment and collection law matters, as well as all aspects of civil litigation. Prior to having his own practice, Jonathan practiced at a leading labor and employment law firm in New Jersey and a civil litigation firm in Hackensack, New Jersey. You can reach Jonathan by email at firstname.lastname@example.org