TrueAccord is no stranger to litigating cases that establish good case law for digital collections, and the recent decision in Robertson v. TrueAccord Corp. is no exception to this. The industry has faced confusion as to whether or not a text message is as intrusive as a phone call to consumers, legally speaking. It’s one of many gray areas the debt collection industry faces. However, to date, few participants have sought to establish legal clarity through court action.
Closing some gaps to this key gray area, the Robertson decision contains several pivotal rules for digital collections, which added TCPA clarity as the cherry on top. The court found that text messages are not as intrusive as phone calls, settled the debate on whether the mailbox rule applies to debt collection emails (hint: it does!), and found that the content of TrueAccord’s text messages necessitates a finding that an automatic telephone dialing system (ATDS) was not used. Ready for more details? Let’s jump in.
Text Messages are Not as Intrusive as Phone Calls
In Branham v. TrueAccord, TrueAccord spearheaded case law finding that email is not as intrusive as a phone call, and now we have a companion case that finds the same is true about text messages. In this case, the plaintiff alleges that TrueAccord’s text messages constituted harassment under the FDCPA, and the court squarely disagreed. Here’s the key reasons why this decision was reached:
First, the court noted that the volume of text messages sent did not rise to the level of harassment. TrueAccord sent 11 text messages in the span of 2 months. Second, the court found that the Opt-Out option in each text message (“Reply STOP to opt out”) was also a strong factor against harassment, as stopping the messages was in the plaintiff’s control. Third, the court equated text messages to emails and found both styles of digital communications are not as intrusive as phone calls.
The Court said:
“This conduct does not approach a level that would allow the Court to infer an intent to harass, especially because text messages, like letters, are easily ignored and far less intrusive than phone calls.”
Mailbox Rule Applies to Email
The Robertson court confirms again that the mailbox rule applies to email.
The mailbox rule is a legal doctrine that states if someone puts a piece of mail into a mailbox, then there is a rebuttable presumption that the piece of mail was delivered to the recipient. This presumption can be rebutted by the recipient by presenting credible evidence that shows otherwise. As recognized in the Robertson decision, courts have been applying the mailbox rule to email since 2013, including the Fifth Circuit in 2021. If a debt collector can prove that it sent an email, then there is a rebuttable presumption that it was received by the consumer.
In the instant case, the plaintiff could not rebut the presumption. The Plaintiff alleged that TrueAccord sent the above-referenced text messages without first providing a validation notice as required by the FDCPA. As evidence, plaintiff provided screenshots of an inbox search plaintiff conducted after the litigation began showing no emails received from TrueAccord.
TrueAccord, on the other hand, provided business records evidencing that it did, prior to sending any text messages to plaintiff, send an email to the email address of the plaintiff containing all validation notice requirements. TrueAccord received no indication of any email bounce backs or other undeliverability notices.
The Court said:
“Even though the statute requires only that the notice be sent, the mailbox rule presumes email [sic] was received…Because Plaintiff has presented evidence only of email searches performed some indeterminate time after this litigation began, she has not rebutted the presumption created by the mailbox rule.”
The Content of a Text Message Can Indicate When an ATDS is Not Used
The industry has seen endless case law over the years narrowing down what, exactly, is and what is not an automatic telephone dialing system (ATDS) under the TCPA. While it’s been generally settled since the U.S. Supreme Court case Facebook v. Duguid that the systems industry members do not qualify as an ATDS, the Robertson decision adds another decision supporting this.
In this decision, the court found that the content of the text messages themselves held the key to determining whether an ATDS was used or not. The fact that TrueAccord’s text messages included certain characteristics that would only be applicable to the plaintiff’s specific account, e.g., the debt amount, necessarily means that the system used was not randomly generating phone numbers. It’s another example of how personalization helps create a better ecosystem for all parties involved in the industry.
The Court said:
“The facts alleged by Plaintiff only plausibly support the inference Defendant did not use an ATDS… Crucially though, Plaintiff alleges the messages contained personalized information (specific debt amounts),making it implausible that Defendant sent them to her using a device that randomly generates the phone numbers to be contacted.”
Get More Insight Into Debt Collection Compliance with TrueAccord
This case is a great example of the expertise TrueAccord’s legal team puts into practice. We’re committed to following and moving case law forward that furthers our mission of bringing a consumer-centric approach to debt collection. Our digital collections process is controlled by code and sets the standard for compliance.
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