U.S. District Court Rules Letter with Internal Reference Number Does Not Violate FDCPA

 federal judge in New York has ruled that a letter which contained an internal reference number that may have been visible through an envelope window does not violate the Fair Debt Collection Practices Act (FDCPA).

The case is Rodriguez v. I.C. Systems, Inc. (Case No. 14-CV-06558, United States District Court, Eastern District of New York). A copy of the Judge’s Memorandum and Order can be found here.

Background

Plaintiff Wendy Torres Rodriguez brought an action pursuant to 15 U.S.C. § 1692f(8) of the FDCPA. Defendant, I.C. Systems, Inc. (ICS) sent a letter dated January 4, 2014 (the Letter) to plaintiff seeking to collect on a debt that was assigned to it by Con Edison, plaintiff’s original creditor. The Letter contained an ICS Reference Number (ICS Reference Number), which is a unique internal reference number ICS assigns to each account it receives from a creditor. The number does not have any significance to anyone outside of ICS. Located above plaintiff’s name and address on the Letter is a string of numbers, 64140020-1-19/0510, which includes the ICS Reference Number. The ICS Reference Number has no relation to any of plaintiff’s personal identifying information. Plaintiff alleged that the ICS Reference Number, her name, and address were visible through the glassine window of the envelope (the Envelope) when she received the Letter.

On November 6, 2014 plaintiff filed the Complaint. ICS filed its answer on February 9, 2015, and served interrogatories and document requests on May 21, 2015, but plaintiff failed to respond timely. Plaintiff served her unverified interrogatory responses that attached a copy of the Letter on July 17, 2015, and provided a verification for her interrogatory responses on August 18, 2015. Plaintiff, however, did not appear for her noticed deposition nor did she respond to defendant’s document demands which sought, among other things, a full and complete copy of the Letter and a copy of the Envelope in which the Letter arrived. ICS also requested that plaintiff produce the original Letter and the original Envelope, but plaintiff did not do so. The parties filed a joint status report to the court on September 2, 2015, in which plaintiff’s counsel confirmed that the Envelope was no longer available.

On November 16, 2015, ICS filed a motion for summary judgment. 

Editor’s NoteA motion for summary judgment is based upon a claim by one party (or, in some cases, both parties) that contends that all necessary factual issues are settled or so one-sided they need not be tried. The summary judgment is appropriate when the court determines there no factual issues remaining to be tried, and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial.

ICS argued that it was entitled to summary judgment because (1) plaintiff’s claim fails as a matter of law because without the original Envelope, plaintiff cannot establish what, if any, identifying information was visible and (2) even if the ICS Reference Number was visible, the ICS Reference Number does not reveal any identifying information about plaintiff and therefore it falls within the benign language exception to § 1692f(8) of the FDCPA that has been recognized and applied in the Second Circuit.

The Court’s Decision

The Honorable Judge Kiyo A. Matsumoto presided over the case and issued the Memorandum and Order referenced above granting the ICS motion for Summary Judgment.

Judge Matsumoto wrote:

“The court finds that plaintiff cannot prove her case because she cannot produce the Envelope giving rise to her claims. Even construing all evidence in favor of the non-moving plaintiff, and assuming the ICS Reference Number was visible through the Envelope, the court finds that the exposure of the ICS Reference Number, a string of random digits, does not violate § 1692f(8) of the FDCPA.

Courts have recognized a “benign exception” to § 1692f(8) of the FDCPA which allows bill collectors to include language and symbols on their mailings, including internal reference numbers, as long as the language and symbols are not indicative of the party’s status as a debtor and do not reveal other private information about the party.

The series of numbers and letters is indecipherable to anyone, sophisticated or not, and its significance only becomes apparent when the letter is opened.  The ICS Reference Number does not contain any specific information indicating that plaintiff is a debtor. The ICS Reference Number is meaningless to anyone outside of ICS, including the least sophisticated consumer, and plaintiff has not shown that the ICS Reference Number is any different from the identifiers used on junk mail.

Accordingly, the court finds as a matter of law that the FDCPA was not violated even if the ICS Reference Number was displayed on the Envelope. Therefore, defendant’s motion for summary judgment is granted.”

Judge Matsumoto then addressed a request by ICS for an award of attorney’s fees for successfully defending the case.  The Judge wrote:

“Defendant’s requests for attorneys’ fees is denied, although plaintiff’s failure to retain the Envelope, a material piece of evidence giving rise to her claim, presents a close case. Plaintiff’s counsel is advised that he should not commence actions if he lacks evidence to prove his clients’ claim.”

insideARM Perspective

This case is another in a long string of “Envelope Cases.”  See the insideARM FDCPA Resources page in our Compliance Portal to review our FDCPA Caselaw chart. In that chart you will find several other cases discussing envelopes, visible account numbers, and bar codes. The takeaway should be that the issue is far from settled.  There are opinions on both sides of this argument.  One should not read this single case and come to a conclusion on a course of conduct regarding what items may be visible on an envelope. 

The case also demonstrates the difficulty of a prevailing defendant being awarded attorney’s fees in an FDCPA matter.  In this case the plaintiff was unable to produce the material piece of evidence that gave rise to the lawsuit. Yet, the Judge denied the request, calling it a “close case” for an award of attorney’s fees.  Seeking attorney’s fees is an uphill battle.

By Tim Bauer