ESTATE OF WILFRED C. CLEMENTS v. APEX ASSET MANAGEMENT, LLC.

Filing 16

OPINION. Signed by Judge Jerome B. Simandle on 3/25/2019. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ESTATE OF WILFRED C. CLEMENTS,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.

Civil Action
No. 18-0843 (JBS-AMD)

APEX ASSET MANAGEMENT, LLC,
Defendant.

OPINION

APPEARANCES:
Thomas Patrick Kelly, III, Esq.
KELLY LAW OFFICES, LCC
3000 Atrium Way, Suite 291
Mount Laurel, NJ 08054
Attorney for Plaintiffs
Andrew Michael Schwartz, Esq.
Lawrence J. Bartel, III, Esq.
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN
2000 Market Street, Suite 2300
Philadelphia, PA 19103
Attorney for Defendant
SIMANDLE, District Judge:
I. INTRODUCTION
In this action, Plaintiff Estate of Wilfred C. Clements
(hereinafter

“Plaintiff”)

alleges

that

Defendant

Apex

Asset

Management, LLC (hereinafter “Defendant”) violated the Fair Debt
Collection

Practices

Act

(hereinafter

“FDCPA”),

15

U.S.C.

§ 1692f(8), in its efforts to collect an outstanding debt against

Plaintiff. [Docket Item 4-1, 1.] Plaintiff alleges it received
Defendant’s debt collection letter in an envelope that permitted
Plaintiff’s account number and another five-digit number to show
through the envelope’s glassine window, thus failing to protect
Plaintiff’s financial privacy with regard to symbols of debt
collection

activity,

on

envelopes.

In

the

present

motion,

Plaintiff seeks summary judgment. [Docket Item 4.] For the reasons
stated herein, Plaintiff’s motion will be denied, and Plaintiff
will be directed to show cause under Rule 56(f)(1), FED. R. CIV.
P.,

why

summary

judgment

should

not

be

entered

in

favor

of

Defendant.
II.

BACKGROUND
A. Facts
Defendant operates as a debt collector within the meaning of

15 U.S.C. § 1692(a)(6) [Docket Items 4-2, ¶ 2; 6-2, ¶ 2] and
contracts with a third-party vendor to mail its collection letters.
[Docket Item 6-3, ¶ 3.] Defendant drafted a collection letter to
collect Plaintiff’s outstanding debt. [Docket Item 4-2, ¶ 3; 6-2,
¶ 3.] Defendant’s mail vendor created, printed, folded, inserted
Plaintiff’s letter into a glassine-windowed envelope [Docket Item
4-2, ¶ 4; 6-2, ¶ 4], and mailed Plaintiff the collection letter on
May 10, 2017. [Docket Item 6-2, ¶ 3.] Plaintiff claims that a
fivedigit number and a twenty-three-digit number, the latter
containing the Plaintiff’s entire account number, were visible

2

through

the

glassine

window

of

the

envelope

in

which

the

correspondence was mailed. [Docket Item 4-2, ¶¶ 5-6.] Plaintiff
says it relies on a copy of the envelope and letter located in
“Exhibit C” [id.]; however, the exhibit was not provided. Exhibit
C has no content, so no example of the envelope and letter is in
evidence. Defendant argues that the twenty-three-digit number,
containing Plaintiff’s account number, could not have been visible
through the glassine window of the sealed envelope. [Docket Item
6-2, ¶ 4.] Additionally, Defendant admits only that the five-digit
number was visible through the glassine window but argues it did
not contain any of the Plaintiff’s personal or private account
information. [Docket Item 6, 2.]
B. Procedural History
On May 11, 2018, Plaintiff filed a complaint in the Superior
Court of New Jersey, Law Division, alleging Defendant violated the
FDCPA, 15 U.S.C § 1692f(8). [Docket Item 1.] Defendant timely
removed the case to the U.S. District Court for the District of
New Jersey [Docket Item 1] and timely filed an answer. [Docket
Item 3.] Plaintiff thereafter filed the present motion for summary
judgment [Docket Item 4] and Defendant subsequently filed a Brief
in Opposition to Plaintiff’s motion. [Docket Item 6.] Plaintiff
did not file a reply brief, and did not supply the alleged envelope
or letter that was missing from its moving papers.
III. STANDARD OF REVIEW

3

At summary judgment, the moving party bears the initial burden
of demonstrating that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law. FED. R. CIV. P. 56(a); accord Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
A party assertion that a fact cannot beor, alternatively,
isgenuinely disputed must be supported either by citing to
"particular
depositions,

parts

of

materials

documents,

in

the

electronically

record,
stored

including

information,

affidavits or declarations, stipulations (including those made for
the

purposes

of

the

motions

only),

admissions,

interrogatory

answers, or other materials," or by "showing that the materials
cited do not establish the absence or presence of a genuine
dispute,

or

that

an

adverse

party

cannot

produce

admissible

evidence to support the fact." FED. R. CIV. P. 56(c)(1)(A),(B).
Once a properly supported motion for summary judgment is made,
the burden shifts to the non-moving party, here the defendant, who
must set forth specific facts showing that there is a genuine issue
for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). In reviewing a motion for summary judgment, the court is
required to examine the evidence in the light most favorable to
the nonmoving party, here the Defendant, and extend all reasonable
inferences in that party's favor. Scott v. Harris, 550 U.S. 372,

4

378 (2007); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014).
A factual dispute is material when it “might affect the
outcome of the suit under the governing law,” and genuine when
“the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248. The nonmoving
party “need not match, item for item, each piece of evidence
proffered by the movant,” but must simply present more than a “mere
scintilla” of evidence on which a jury could reasonably find for
the non-moving party. Boyle v. Cty. of Allegheny Pennsylvania, 139
F.3d 386, 393 (3d Cir. 1998) (quoting Anderson, 477 U.S. at 252).
IV.

DISCUSSION

A. The FDCPA
Congress

enacted

the

FDCPA

“to

eliminate

abusive

debt

collection practices, to ensure that debt collectors who abstain
from such practices are not competitively disadvantaged, and to
promote consistent state action to protect consumers.” Jerman v.
Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 577
(2010)

(citing

15

U.S.C.

§ 1692(e)).

The

FDCPA

is

remedial

legislation and “must be broadly construed in order to give full
effect to these purposes.” Douglass v. Convergent Outsourcing, 765
F.3d 299, 302 (quoting Caprio v. Healthcare Revenue Recovery Grp.,
LLC, 709 F.3d 142, 148 (3d Cir. 2013)).
In enacting the FDCPA, Congress recognized that abusive debt
collection

practices

lead

to

personal

5

bankruptcies,

marital

instability, the loss of jobs, and, potentially relevant in this
instance, “invasions of individual privacy.” Douglass, 765 F.3d at
302 (quoting 15 U.S.C. § 1692(a)). The Third Circuit has stated
that a “core concern” of the FDCPA is “the invasion of privacy”
and recognized that privacy interests include an individual's
“status as a debtor” and “financial predicament.” Id. at 303.
Here, the provision of the FDCPA at issue is Section 1692f,
which

prohibits

a

debt

collector

from

using

“unfair

or

unconscionable means” to collect a debt. Id. at 302 (citing 15
U.S.C. § 1692f). The statute lays out a nonexclusive list of
conduct that qualifies as unfair or unconscionable. 15 U.S.C.
§ 1692f. Subparagraph 8, relevant here, prohibits a debt collector
from:
[u]sing 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). In this case, the only issue is whether
Defendant violated Section 1692f(8) of the FDCPA. [Docket Items 42, ¶ 1-3,6; 6-2, ¶ 1-3, 6.]
“In statutory interpretation, we begin with the text.” Allen
ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 367 (3d Cir.
2011).

“If

the

statute's

plain

language

is

unambiguous

and

expresses [Congress's] intent with sufficient precision, we need

6

not look further.” Allen, 629 F.3d at 367. “But if the literal
application of a statute will produce a result demonstrably at
odds with the intentions of its drafters, then we are obligated to
construe statutes sensibly and avoid constructions which yield
absurd or unjust results.” Douglass, 765 F.3d at 302 (internal
quotations omitted). “Where the plain meaning of a statute would
lead to an absurd result, we presume ‘the legislature intended
exceptions to its language [that] would avoid results of this
character.’” Id. (quoting Gov't of Virgin Islands v. Berry, 604
F.2d 221, 225 (3d Cir. 1979)).
The United States Court of Appeals for the Third Circuit
interpreted and applied Section 1692f(8) in Douglass v. Convergent
Outsourcing, 765 F.3d 299 (3d Cir. 2014). In Douglass, the Third
Circuit analyzed whether a debtor’s account number printed on the
outside of an envelope violated Section 1692f(8). Id. at 302. The
Circuit determined that it did violate the FDCPA because the
account number was “a piece of information capable of identifying
[the plaintiff] as a debtor” and “its disclosure has the potential
to cause harm to a consumer that the FDCPA was enacted to address.”
Id. at 306.
The

Court

in

Douglass

noted,

“[t]hough

several

courts,

including the Courts of Appeals for the Fifth and Eighth Circuits,
have interpreted Section 1692f(8) to permit an exception for
certain benign or innocuous markings, they did so in the context

7

of envelope markings that did not have the potential to cause
invasions of privacy.” Id. at 304. The defendant moved for summary
judgment

“contending

the

account

number

qualified

as

‘benign

language’ that [Section] 1692f(8) was not meant to prohibit.” Id.
The defendant argued that the Court must adopt the benign language
exception because the literal interpretation of Section 1692f(8)
creates

an

absurdity

that

makes

sending

collection

letters

impossiblethe envelope could not display the name and address of
the recipient. Id.
The Third Circuit disagreed with the defendant because the
plaintiff’s account number was not benign as it was a core piece
of information pertaining to the plaintiff’s status as a debtor.
Id. at 303, 306. Therefore, the Third Circuit declined to decide
whether a benign language exception exists under Section 1692f(8)
because the disclosure of the plaintiff’s account number was not
benign. Id. at 306.
However, the Eastern District of Pennsylvania applied the
benign language exception to language and symbols that did not
disclose private information. See Anenkova v. Van Ru Credit Corp.,
201 F. Supp. 3d 631 (E.D. Pa. 2016) (holding a visible barcode
created by and for a third-party mail vendor was benign and did
not violate the FDCPA); Waldron v. Prof'l Med. Mgmt., No. CIV. 121863, 2013 WL 978933 (E.D. Pa. Mar. 13, 2013) (holding that a

8

visible QR code, used to efficiently process return mail, was
benign and did not violate the FDCPA).
B. The Five-Digit Number
Plaintiff

and

Defendant

agree

that

a

five-digit

number

(“00155”) was visible through the glassine window of the envelope.
[Docket Item 6-2, ¶ 5.] However, Defendant asserts that its
thirdparty

mailing

vendor

randomly

generated

the

five-digit

number for mailing purposes and that the number did not reveal the
decedent’s personal or financial information. [Docket Item 6, 9.]
Congress created the FDCPA to protect consumers from abusive debt
collection practices and the invasion of their privacy. Douglass,
765 F.3d at 302. The placement of innocuous symbols or digits on
a collection envelope is not an evil Congress intended to prevent.
Unlike the visible account number in Douglass, a randomlygenerated
five-digit number for mailing purposes visible on the envelope
does not implicate the privacy concerns embedded in the FDCPA as
a matter of law.
Plaintiff failed to present any evidence that the number
revealed the decedent’s private information. Rather, Plaintiff
merely stated that the Third Circuit declined to expressly adopt
the benign language exception. [Docket Item 4-1, 2.] Without
sufficient evidence to demonstrate that the fivedigit number
implicated the privacy concerns that Congress intended to protect,

9

Plaintiff failed to state a claim upon which relief is granted
under the FDCPA. The five-digit number falls under the benign
language exception and did not violate Section 1692f(8) of the
FDCPA. Therefore, Plaintiff’s motion for summary judgment will be
denied as to the five-digit visible number.
C. The Twenty-Three-Digit Number
Defendant

argues

that

the

twenty-three-digit

number

containing Plaintiff’s account number and located on the bottom
left of the letter could not have been visible through the glassine
window of the sealed envelope. [Docket Item 6, 5.] Defendant’s
owner

and

corporate

representative

submitted

a

detailed

description and example of how Defendant’s mail vendor folds and
inserts each collection letter into envelopes. [Docket Item 6-1.]
He indicated that it would be physically impossible to see the
twentythreedigit number through the glassine window unless the
letter shifted up by 7/16 inch. [Id. at ¶ 12.] However, there was
only 3/16 inch of space within the envelope for the letter to move.
[Id. at. ¶ 9.] Therefore, the only way the twenty-three-digit
number could be seen through the glassine window would be by
manipulating and pulling the letter outside the four corners of
the envelope. [Docket Item 6, 7.] Additionally, Defendant provided
over twenty copies of its previously mailed debt collection letters
that do not reveal account numbers to one looking at the envelope.
[Id. at 10-35.]

10

The Court acknowledges that Defendant provided ample evidence
of its typical mailing practices and procedures to demonstrate to
a reasonable fact finder that the account number was not visible.
[Docket Items 6; 6-1.] This suffices to defeat Plaintiff’s summary
judgment motion concerning the twenty-three-digit number.
FED R. CIV. P. 56(a) provides, “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). Additionally, FED. R. CIV. P.
56(c)(1)(A), states,
[a] party asserting that a fact cannot be . . . genuinely
disputed must support the assertion by: (A) citing to
particular parts of materials in the record, including
depositions,
documents,
electronically
stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
FED. R. CIV. P. 56(c)(1)(A).
Plaintiff failed to provide sufficient evidence to support
its assertion that the account number was “visible through the
outside of the glassine window.” [Docket Item 4-2, ¶ 5.] Plaintiff
solely relies on a copy of the envelope and letter located in
“Exhibit C” [Docket Item 4-2, ¶¶ 5-6]; however, as Defendant duly
pointed out, Plaintiff did not provide the exhibit. [Docket Item
6, 7.] Plaintiff did not thereafter submit the envelope itself,
eye-witness

testimony

about

the

envelope,

previously

mailed

envelopes that displayed debtor account numbers, and/or a reply to

11

Defendant’s declaration that “Exhibit C” is “nonexistent.” [Docket
Item 6, 7.] Without sufficient evidence to support the alleged
material fact that the account number was visible through the
glassine window of the envelope, Plaintiff failed to adduce even
a prima facie case from which a violation of § 1692f(8) could be
found. Therefore, Plaintiff’s motion for summary judgment will be
denied.
D. Notice of Contemplation
Moving Plaintiff

of

Summary

Judgment

Against

the

It appears beyond dispute, upon the facts submitted in the
record of this summary judgment motion, that, as a matter of law,
Plaintiff will be unable to prove that the twenty-three-digit
account number was visible through the glassine window, such that
Defendant Apex Asset Management may be entitled to judgment in its
favor. Plaintiff’s failure to provide any evidence to support that
the five-digit number implicated privacy concerns and that the
twenty-three-digit number was visible through the glassine window
of the envelope leads this Court to consider FED. R. CIV. P. 56(f).
Rule 56(f) provides: “[a]fter giving notice and a reasonable time
to respond, the court may: (1) grant summary judgment for the
nonmovant.” FED. R. CIV. P. 56(f)(1).
The Court will therefore give notice to Plaintiff Estate of
Wilfred C. Clements that it is contemplating entering summary
judgment in favor of the nonmovant Defendant Apex Asset Management.

12

Plaintiff

will

accompanying

have

Order

is

fourteen

(14)

entered

to

days
file

from
any

the

date

the

opposition,1

and

Defendant will have seven (7) days thereafter to reply.
V. CONCLUSION
For the reasons stated above, the Court will deny Plaintiff’s
motion for summary judgment. Plaintiff will have fourteen (14)
days to show cause why summary judgment should not be entered in
favor of Defendant, Apex Asset Management, pursuant to FED. R. CIV.
P. 56(f)(1), no cause for action, as provided in part IV.D above.
An accompanying Order will be entered.

March 25, 2019
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

1

Alternatively, if Plaintiff chooses to dismiss its case, it
should submit a stipulation of dismissal and need not file
opposition.
13