Author: Katie Neill

Defeating TCPA Claims: How Tech Documentation and Do-Not-Call Registry Rules Protect Digital Debt Collection

By on October 13th, 2026 in Company News, Product and Technology
The blog title set in front of a lawyer working at a desk.

A documented messaging platform defeats an autodialer claim: Maryland federal court grants TrueAccord summary judgment

A new decision out of the United States District Court for the District of Maryland delivers another win for digital debt collection. The case is a clear reminder that knowing, and being able to prove, exactly how your messaging technology works can decide a case. In Beaufort Nickson v. TrueAccord Corp., Civil Action No. DKC 25-3686, the court granted TrueAccord summary judgment on the plaintiff’s Telephone Consumer Protection Act (TCPA) autodialer claim, holding that there was no genuine dispute because the technology used to message the plaintiff was not an automatic telephone dialing system.

The decisive evidence came from TrueAccord’s messaging partner, Solutions by Text (“SBT”), who provided technical specifications regarding SBT’s platform which  left the plaintiff’s conclusory autodialer allegation with nothing to stand on. The court entered judgment for TrueAccord and closed the case on October 5, 2026. The decision is also another important reminder that the national do-not-call registry does not apply to the collection of debts. 

The Case

Proceeding pro se, plaintiff Beaufort Nickson sued TrueAccord under the TCPA, alleging two counts:

  1. That TrueAccord violated 47 U.S.C. § 227(b) by using an Automatic Telephone Dialing System (ATDS) to send him debt collection messages without his consent; and
  2. That TrueAccord violated 47 U.S.C. § 227(c) by contacting him despite his number being on the national do-not-call registry.

The messages at issue were debt collection communications: TrueAccord began sending the plaintiff text messages about his balance on August 25, 2024, followed by a September 29, 2024 email explaining that TrueAccord was attempting to help resolve it.

After the close of discovery, TrueAccord moved for summary judgment on count one and, with leave of court, later moved to dismiss (or in the alternative for judgment on the pleadings) on count two. The plaintiff did not oppose the second motion.

Platforms that Do Not Store or Generate Numbers Are Not ATDS.

The court granted summary judgment to TrueAccord on count one because there was no genuine dispute that the technology used to message the plaintiff was not an ATDS. Under Facebook, Inc. v. Duguid, 592 U.S. 395 (2021), a device qualifies as an ATDS only if it can “store a telephone number using a random or sequential generator or … produce a telephone number using a random or sequential number generator.” The complaint offered only a conclusory assertion that TrueAccord used an ATDS.

TrueAccord, by contrast, came to the record with proof. SBT, TrueAccord’s messaging vendor, provided a statement of technical specifications confirming that its platform does not “create, derive or independently store telephone numbers” and does not permit sending messages using random or sequential number generation. On that record, the court found no genuine dispute that the platform was not an ATDS. Because the plaintiff could not establish ATDS use, the heavily-briefed consent question never affected the outcome.

Nickson is the latest in a growing line of cases confirming that the technology behind modern digital debt collection is not an autodialer. In Robertson v. TrueAccord another court reached the same no-ATDS conclusion from a different direction, reasoning that because TrueAccord’s text messages contained personalized account details such as the specific debt amount, it was implausible the messages were sent by a system that randomly generates numbers. Where Robertson looked at the content of the messages, Nickson looked at the documented capabilities of the platform itself. Read together, the two decisions show from both angles that debt collection messaging technology does not meet the ATDS definition.

Debt Collection Messages Are Not Solicitations.

The court also dismissed count two, and the reasoning is worth spelling out. Section 227(c) creates a private right of action for a person who receives more than one telephone solicitation within a 12-month period to a number on the national do-not-call registry. The plaintiff plausibly alleged that his number was on the registry but that allegation alone does not make out a claim. The statute protects against telephone solicitations, not against every unwanted message, and a plaintiff must therefore allege that the messages he received were solicitations within the meaning of the TCPA.

They were not. The TCPA defines a “telephone solicitation” as a message initiated “for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services.” 47 U.S.C. § 227(a)(4). The plaintiff alleged that every message TrueAccord sent him related to debt collection. However,  a debt collection message is not sent to encourage a purchase, rental, or investment. Because the messages were not solicitations, the do-not-call rules did not apply, and the plaintiff failed to state a § 227(c) claim. The holding is a useful reaffirmation of a long-settled but frequently misunderstood point: the national do-not-call registry does not reach the collection of debts.

The do-not-call framework also does not fit the nature of digital debt collection for a more practical reason. Text messaging is a far less intrusive channel than the phone calls that prompted the TCPA in the first place — a text can be read and ignored on the consumer’s own schedule, and does not interrupt a person’s day the way a ringing phone does. 

Key Takeaways

The lesson of this decision is a practical one: knowing and being able to prove how your messaging technology actually works is a core compliance asset. Post-Duguid, a plaintiff must show that the technology can randomly or sequentially generate numbers. A conclusory allegation that a collector used an autodialer will not survive against a well-documented record.  A collector that can put the actual capabilities of its platform in front of the court, through technical specifications and a sworn declaration, can take the autodialer question off the table on summary judgment.

That is only possible with the right partners. Here, the decisive evidence came from SBT, whose detailed technical specifications directly answered the autodialer question and carried the day. We are grateful for that partnership. When a vendor stands behind its technology, and can document precisely what the platform does and does not do,  it protects not just itself but every collector who relies on it.

A Closing Note on the Motion to Compel and Pro Se Litigation

One feature of this case deserves a closer look. The plaintiff challenged the adequacy of the SBT technical specifications and moved to compel additional discovery. The court held a telephone conference on July 10, 2026, and denied the motion, finding that TrueAccord had adequately complied with the plaintiff’s discovery requests.

The plaintiff litigated this case pro se, as was his right. Courts across the country are seeing a significant rise in pro se filings, a trend accelerated by the growing use of large language model tools that help consumers prepare and file their own cases. That is neither surprising nor improper, access to the courts is a right, and these tools are lowering the barriers to exercising it. But it is a reality that businesses and the court system alike are now navigating, and it changes the texture of litigation. 

It is fair to say we may not have seen this motion to compel at all without a pro se litigant testing the sufficiency of the defense evidence firsthand. For collectors, the takeaway reinforces the point above: the better documented your technology and your defenses, the better positioned you are to meet challenges from any litigant, represented or not, and to give the court a clear, well-supported record on which to rule.

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.

Do you want a firsthand look at how TrueAccord could bring personalization at scale for your accounts? Our expert team is ready to help.

This blog is not legal advice. Legal advice must be tailored to the particular facts and circumstances of each unique matter.

Using AI to Communicate with Consumers – What Responsible Engagement Looks Like

By on May 22nd, 2026 in Compliance, Industry Insights, Machine Learning
A robot looking at a collection of screens set behind the blog title.

Most businesses aren’t thinking about if they’re going to use AI to communicate with consumers, but how they can put the technology in action. For companies in highly regulated industries like debt collection, it’s essential for AI to consumer conversations to be compliant and operate under responsible engagement. 

To make this notion a reality, there are four key pillars businesses should follow to implement AI for consumer communications ethically and responsibly.

Pillar 1 – Building a Proper AI Data Integrity Foundation

For top musicians and athletes, an amazing performance is the product of countless hours of practice. In the world of AI, that grounding all happens in the foundational data layer. The best AI foundations are set up to prevent hallucinations (cases where AI models make-up facts) and limit the number of context gaps the technology fills in. 

The first step to achieve this is the idea of “treasures In, treasures out”. This means setting up a highly structured and vetted knowledge base for AI tools to pull from. One of the best ways to put this into practice is with a RAG (Retrieval-Augmented Generation). Think of RAG as an open book test. Instead of the AI guessing at the answer for a certain situation, there’s a verified source of truth from your business that it can rely on to formulate its real-time response with consumers. Other key aspects of reliable foundation include: 

  • Knowledge Base Curation: Build a single source of truth for your compliance data. 
  • Structured Templates: Create response templates for sensitive consumer interactions. 
  • Vetted & Restricted Terminology: Maintain a list of approved industry terms and any banned language.  

Pillar 2 – Designing the Right Omnichannel Blueprint

After the AI is trained, your communication strategy needs a playbook to follow, using both AI and human agents, for effective communication with consumers. This way, organizing email, text and phone call conversations is done in accordance with your omnichannel strategy. It’s important for AI tools to have clear paths to be highly efficient, while always displaying the empathy consumers expect from businesses. To help with this goal, it’s important to never let an AI operate in a silo, there needs to be human oversight. 

Modern AI technology excels at dynamic intent recognition. By analyzing consumer data points in real time, the system can use this information to shift its approach in real time. For an omnichannel strategy, this equates to AI optimizing interactions based on data unique to interaction with a specific consumer, in contrast to the traditional a one-size-fits-all approach. While human agents are needed for more complex cases, AI can be effectively leveraged to take care of low-risk interactions and repetitive tasks.

Pillar 3 – Transparency in AI to Consumer Interactions

Now it’s time for AI systems to interact directly with consumers, and it’s essential for the digital handshake between them to go off without a hitch. First, responsible AI begins with disclosing to the customer that they’re talking to AI. By starting off with honesty, your business will build baseline trust and lower the risk of customers being caught off guard and ending the conversation. 

In debt-related conversations with businesses, consumers can have an undertone of shame, anxiety or even embarrassment. In these situations, many consumers may prefer interacting with AI since it strips away the emotional friction of human judgement. It often makes it easier for the consumer to calmly explore their options for repayment, smoothing out the debt collection process. 

AI systems can also monitor positive and negative keywords, which is beneficial in each scenario. If a negative keyword is mentioned by a consumer, or the AI picks up on escalating frustration, it can be trained to hand off the conversation to a human agent. Conversely, AI can match a consumer’s positivity and guide them more effectively to self-service solutions.

Pillar 4 – AI Post-Performance Review

The final and most crucial pillar of an AI tool’s communication with consumers is a performance review to foster continuous improvement and human-in-the-loop governance. Similar to a car, AI models experience performance drift as real-world consumer behavior shifts, requiring continuous calibration to keep outputs accurate. By running continuous testing on AI models, your business reduces the risk of errors or hallucinations occurring during customer interactions. 

It’s important for businesses to treat AI systems the same way as a human agent. This means working to create the following: 

  • Human-in-the-Loop Accountability: Assign clear owners who will audit AI transcripts and decisions made for consumers. 
  • Reinforced Learning: Take time to steer the AI system through feedback loops, mark optimal outcomes and manually correct missed opportunities. 

Stop Lever: Have a definitive “stop button” mechanism so if a system mistake is detected, supervisors have the ability to process immediately.

A Consumer-Friendly Experience for High Performance Recovery

TrueAccord is the premier omnichannel debt collection agency that leverages data science and AI technology to deliver a consumer-centric experience. With full-lifecycle recovery solutions, our team gets rid of any guesswork to find consumers a way forward. Contact our team to learn more about our first and third party services.

TrueAccord Sets New Debt Collection Industry Case Law

By on March 13th, 2026 in Company News, Compliance, Industry Insights
The blog title set in front gavel on a court bench.

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.

Do you want a firsthand look at how TrueAccord could bring personalization at scale for your accounts? Our expert team is ready to help.

Beyond the Word “STOP”: Why Businesses Need to Expand How Consumers Can Opt-Out of Communications

By on April 2nd, 2025 in Industry Insights, Compliance, Customer Experience, Machine Learning, Product and Technology, User Experience
TAC Blog Beyond the Word STOP

In today’s digital communication landscape, businesses—especially those that use digital outreach to engage delinquent consumers to collect debts—are facing increasing pressure to ensure they respect consumers opting out of communications from a particular channel.

While the word “STOP” has been a widely recognized method for consumers to unsubscribe from text messages, the reality is that consumers may express their desire to opt out in various ways. And with the advent of accepting MMS (Multimedia Messaging Service) replies that allow for multimedia content like images, videos, and audio, along with longer text messages, consumers are bound to get creative.

On top of consumer preferences, new and upcoming regulations from the Federal Communications Commission (FCC) and the Consumer Financial Protection Bureau (CFPB) are making it crucial for businesses to go beyond just the word “STOP” and ensure they have a comprehensive system in place to honor opt-out requests promptly and accurately.

Keeping Up with the Evolving Regulatory Landscape

The FCC is currently revising its rules as part of efforts to reduce unnecessary regulatory burdens, particularly those that affect automated communications like debt collection calls and texts—a shift in policy could influence how businesses, especially those in debt collection, approach consumer opt-out requests.
Two FCC orders in particular have direct consequences for companies that rely on automated communications, including debt collectors:

1. The 2024 FCC Order:

  • Consumers can revoke consent for robocalls or robotexts in “any reasonable manner,” making it vital for businesses to broaden their opt-out options beyond a single keyword like “STOP.”
  • The revocation applies not only to the channel through which the request was made but also to any other forms of communication at that phone number.
  • Businesses must process these requests promptly, no later than 10 business days.

2. The 2025 FCC Order:

  • This order strengthens rules regarding call blocking, which may affect legitimate debt collection communications. It mandates that service providers block calls they deem “highly likely to be illegal,” based on their internal Do Not Originate (DNO) lists.
  • The risk is that legitimate calls could get mistakenly blocked, disrupting lawful debt collection efforts.

Going Beyond “STOP”: Why It’s Essential for Businesses

As these new FCC orders take effect, why else do businesses need to expand their opt-out processes? Let’s start by looking at existing regulations and requirements along with other factors that can impact an organization’s ability to engage consumers, collect debt, and ultimately their bottom line.

  • Compliance and Legal Risk: By honoring only “STOP,” companies may miss other legitimate opt-out expressions, risking violations of regulations like the Telephone Consumer Protection Act (TCPA) or the Fair Debt Collection Practices Act (FDCPA). Failure to comply can lead to legal consequences and damage to a business’s reputation.
  • Efficiency: In industries like debt collection, where high volumes of communication are involved, a flexible, automated opt-out process can ensure that no consumer request is overlooked. Implementing technology to track and process these requests quickly is key to maintaining a streamlined, efficient operation.
  • Technology and Innovation: The digital age demands businesses use advanced technology to manage consumer interactions effectively. Automating the opt-out process ensures that all channels are updated in real time, avoiding mistakes and minimizing delays.
  • Consumer Trust: Consumers are more likely to engage with a company that respects their preferences and responds to opt-out requests quickly. Offering various opt-out methods and honoring them promptly can significantly improve customer experience.

TrueAccord Leads the Way in Opt-Out Efficacy and Efficiency with RPA Bots

At TrueAccord, we understand that consumer opt-out preferences must be managed with the utmost care. Using Robotic Process Automation (RPA) and artificial intelligence to automate back-office operations helps ensure compliance, improved customer experience, and a more cost-effective way to engage and collect.

  • Automated Opt-Out Recognition: While many companies recognize the word “STOP” as an opt-out request, TrueAccord’s system goes further. We use AI tools to scan incoming messages for not just “STOP,” but also for variations like “revoke,” “quit,” “cancel,” and even unusual or colorful expressions of dissatisfaction. If a message contains any of these keywords, the bot automatically processes the opt-out request by unsubscribing the consumer from the SMS channel.
  • Real-Time Compliance: Our system, powered by HeartBeat—TrueAccord’s patented machine learning engine—ensures that consumer preferences are respected. If a consumer opts out of one communication channel, we ensure that all future communications to that particular channel are paused, preventing any further contact that could lead to complaints or violations.
  • RPA Efficiency: Thanks to our RPA bots, tasks that once took hours or even days for human employees to manage are now completed in a matter of minutes. For example, our bots can process large volumes of responses, automatically unsubscribing consumers or flagging accounts for further review, reducing the time needed to comply with opt-out requests and ensuring that no request goes unnoticed.
  • Advanced Reporting and Monitoring: We don’t just automate the opt-out process—we also track and report on all consumer interactions. This allows us to maintain a detailed audit trail for compliance purposes, ensuring that all opt-out requests are processed promptly and accurately.

TrueAccord is committed to staying ahead of regulatory changes and technological advancements. As the FCC’s rules continue to evolve, we are constantly refining our processes to ensure we are not only compliant but also providing an exceptional consumer experience.

What Does This Fish Mean to You? Navigating Opt-Outs Through MMS

When it comes to consumers opting out of receiving TrueAccord communications through MMS, consumers can truly get creative: photos, memes, emojis, songs, selfies, and more. While text-based responses can be scanned and filtered, MMS is trickier.

For MMS, the reviews need that human set of eyes. Why? Let’s use this actual consumer reply to a text message from TrueAccord that included the standard “STOP to opt-out” language:

Screenshot 2025 04 01 at 10.38.47 AM

What does this fish mean to you? Specifically in the context of debt collection communications with a business, what action do you think the consumer is trying to invoke?

While there are plenty of words and phrases you can program into a filter or scanner, this fish is not as easy to decipher the meaning. Automation takes the burden of basic reviewing off the shoulders of agents and allows bandwidth for examining the more creative responses and handling them appropriately.

So if your debt collection partner is only using a rudimentary scanner for opt-outs, it’s likely that unique opt-out requests are falling through the cracks—and that’s if that partner even has an automated process to manage replies and responses in the first place.

For businesses looking for a debt collection partner, this is a differentiator between choosing TrueAccord versus a competitor—our system is built on code-based compliance which allows us to communicate with consumers at a scale that’s unimaginable from traditional call-and-collect or DIY collection programs. The more traditional operations that do not have these automated processes are also unable to keep up with the variety of replies consumers send to opt-out. Even if they have automation to send out mass volumes of emails or text messages, do they have automation to handle the volume of replies within regulatory timelines? Do they actually offer efficiency and scalability—or are they opening you up new compliance risks around opt-outs?

Opt-In to a More Efficient and Effective Debt Collection and Consumer Communication Process

In the ever-evolving landscape of consumer protection and compliance, businesses must be proactive in managing opt-out requests. It’s no longer enough to rely on a single keyword like “STOP.” As consumer expectations and regulatory requirements evolve, so too must the tools and technologies used to manage opt-outs. TrueAccord’s cutting-edge automation and machine learning technology leads the way in ensuring that consumer preferences are respected, compliance is maintained, and operations remain efficient.

By embracing a more comprehensive, technology-driven approach to managing opt-outs, businesses can build trust with their customers, reduce legal risks, and stay ahead of the regulatory curve.

Ready to opt-in to a more efficient and effective debt collection and consumer communication process? Schedule a consultation today»»

TrueAccord’s Recent Litigation Win: Email Is Always Convenient

By on November 22nd, 2024 in Industry Insights
TAC Blog TrueAccords Litigation Win

TrueAccord is at the forefront of defending litigation related to digital communications in debt collection and its recent victory in the Southern District of Florida is a resounding victory for digital channels in our industry.

In Quinn-Davis v. TrueAccord, the court grappled with the concept of timing in order to figure out when an email is considered inconvenient under both the Federal Debt Collection Practices Act (FDCPA) and the Florida Debt Collection Practices Act (FCCPA). In this case, TrueAccord sent the email at 8:23pm, which is considered a convenient time by both statutes. The plaintiff’s email service provider delivered the email into plaintiff’s inbox at 10:14pm, and the consumer opened the email the following day at 11:44am. The court found no violation of the FDCPA or the FCCPA and granted summary judgment in TrueAccord’s favor.

The FDCPA and FCCPA Prohibitions on Inconvenient Time

To reach its decision, the Court evaluated the inconvenient time provisions of the two statutes. First, the Court analyzed the FDCPA’s provision, breaking it down into three principles:

  1. The basic prohibition: A debt collector may not “communicate with a consumer” in connection with any debt collection at (i) any unusual time or place, or (ii) a time or place known or which should be known to be inconvenient to the consumer. 
  1. The safe harbor: In the absence of the debt collector’s knowledge of circumstances to the contrary, a debt collector shall assume that communicating with a consumer between 8:00 a.m. and 9:00 p.m. (at the consumer’s location) is convenient (and therefore does not trigger liability). 
  1. The prior consent exemption: If the “prior consent of the consumer” is given “directly to the debt collector,” then the debt collector can engage in the activity described in #1 above, regardless of the debt collector’s knowledge or assumptions of the consumer’s communication preferences. 

–See 15 U.S.C. § 1692c(a)(1).

The Court explained that the FCCPA uses similar language to the FDCPA, quoting the statute:

In collecting consumer debts no person shall: … Communicate with the debtor between the hours of 9 p.m. and 8 a.m. in the debtor’s time zone without the prior consent of the debtor.” Fla. Stat. Ann. § 559.72(17) (emphasis added).

The Court noted that, since this case turned on the interpretation of “communicate with,” it did not have to “parse” the “prior consent” exception language. Applying the facts to these two statutes, the court found no violation of law under either—the first published decision relating to email and inconvenient times.

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The Court’s Decision: Email, By Its Silent Nature, Is Never Inconvenient Like Noisy Calls

The decision starts with an eye-catching quote:

“If a tree falls in the forest and no one else is around to hear it, does it make a sound?” This case poses a modern variation of that old chestnut, with a tip-of-the-cap to our elected representatives in Washington, D.C. and Tallahassee…

The court cites its authority under the recent U.S. Supreme Court decision Loper-Bright Enterprises v. Raimondo to reject the CFPB’s interpretation of when an email is considered inconvenient in Regulation F, discussed further below. In its own interpretation, the court found that the consumer opened and read the email at 11:44am, which is a presumably convenient time under both statutes.

The court explicitly stated that it did not take into consideration facts about whether the timing of the email was inconvenient because no evidence was presented on it. However, the court said:

So, what is a prohibited e-mail communication under the FDCPA? When precisely does liability attach? If a debt collector sends an e-mail after 9:00 p.m. and the consumer opens and reads it at 9:00 a.m. the following day, does that violate the FDCPA? What if the debt collector sends an e-mail before 9:00 p.m. but the consumer reads it at midnight? Liable? Clearly, the FDCPA’s safe harbor was aimed at protecting consumers from after-hours noisy telephone rings—not e-mails sitting in one’s e-mail box (silently) overnight. (Emphasis added.)

By this language, the Court suggests that even an email sent after 9:00pm may not be a violation of the inconvenient time prohibition. In this case, the plaintiff opened the email over 13 hours after it was delivered into their inbox, indicating the consumer waited to read it until it was convenient for them.

Ultimately, an email is convenient whenever the consumer opens it because that is when they chose to do so. TrueAccord knows this to be true based on our email communications with millions of consumers. Our own engagement data shows that 25% of consumers engage with emails after 9:00 pm and before 8:00 am. The timing between when an email is sent, delivered, and opened, similar to physical letters, may vary widely from consumer to consumer based on their own choices.

The Court Refused to Follow the CFPB’s Interpretation of the FDCPA

It is important to recognize that in reaching this decision, the Court declined to follow the CFPB’s guidance. In Regulation F, the CFPB spelled out its official interpretation that the time an email is sent, not delivered, is used to determine whether the communication was sent during an inconvenient time. See 12 C.F.R. Part 1006.6(b)(1)(i)(1).

Citing both the Supreme Court Loper decision (and the original, landmark Supreme Court decision in Marbury), the Court stated:

While the CFPB interpretation may have some appeal (on policy grounds), I am neither bound by it nor required to defer to it. See generally Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024) (overruling Chevron USA, Inc. v. Nat’l Res. Defense Council, 467 U.S. 837 (1984)). “It is emphatically the province and duty of the judicial department to say what the law is.” Loper, 144 S.Ct. at 2257 (citing Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803)).

Based on the plain language of the FDCPA, the Court independently concluded that a debt collector must “actually transmit or transfer information to another person in order to communicate with a consumer.” Notably, in reaching this conclusion, the Court pointed out what all of us already know because we use email every day, stating:

You don’t need to be a Ph.D. in computer science to take judicial notice of the basic nature of e-mail communication. Hundreds of millions of Americans use e-mail all the time.

This decision does not require debt collectors who set up their email policies and practices based on the CFPB’s Regulation F guidance to change their practices. As the Court noted, sending proactive, debt collection emails during the presumptively convenient hours of 8:00am to 9:00pm may be “more protective of consumers in many cases.” Just like sending physical letters, the time when a consumer chooses to read the email is outside of a debt collector’s control and fully within the control of the consumer. If the consumer chooses to read it late at night or 2 days later at noon, that is the consumer’s choice and their preferred time to read that message. Therefore, it remains a best practice for compliance with the plain language of the FDCPA and similar state laws like the FCCPA, to send proactive, debt collection emails during presumptively convenient times.

—
Note: This blog post is for informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship. Readers should consult their own counsel for advice regarding their specific situation.

An email is less intrusive than a phone call, finds N.D. Illinois while granting TrueAccord’s motion to dismiss

By on April 12th, 2023 in Company News, Compliance, Customer Experience, Industry Insights, User Experience
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By Katie Neill & Steve Zahn

A court victory by TrueAccord Corp. (TrueAccord) in the Northern District of Illinois continues to showcase the benefits of digital collection as the court found receiving an email about a debt is less intrusive to consumers than receiving a phone call. Messer Strickler Burnette represented TrueAccord and filed the briefing in the case.

In the Branham v. TrueAccord opinion, the court granted TrueAccord’s motion to dismiss finding that the alleged injuries claimed by the plaintiff—undue stress and anxiety, financial and monetary loss, uncertainty as to how to proceed about the debt, and a harm that “bears a close resemblance” to invasion of privacy—are insufficient to establish standing for a Fair Debt Collection Practices Act (FDCPA) claim.

Plaintiff’s Allegations

Plaintiff alleged that TrueAccord violated the FDCPA by contacting her twice by email after having received notice that she was represented by an attorney. TrueAccord had no record of receiving a notice of attorney representation from the plaintiff. However, when deciding on a motion to dismiss like this, the court must rely solely on the facts and allegations in the complaint and consider them as true, whether or not they are.

In the complaint, the plaintiff included a laundry list of alleged injuries suffered as a result of receiving the two emails from TrueAccord. These injuries included:

  • “Actual” financial and monetary loss without any specifics
  • Confusion on how to proceed with TrueAccord’s debt collection attempts due to “misleading statements”
  • Undue stress and anxiety as well as wasted time, annoyance, emotional distress, and informational injuries
  • A harm that “bears close resemblance to” invasion of privacy

Plaintiff Did Not Allege a Concrete, Particularized Injury

In its decision, the court shot down each of these alleged harms and found that the plaintiff failed to properly plead a concrete, particularized injury as the U.S. Supreme Court required in Spokeo, Inc., v. Robins. 

Specifically, the court found:

  1. Unlike telephone calls, two unwanted emails are insufficient to confer standing and wouldn’t be “highly offensive” to the reasonable person.
  2. Alleged physiological harms (e.g., emotional distress, anxiety, and stress) are abstract harms and not concrete enough to support standing without a physical manifestation of such harms.
  3. Vague and conclusory statements that the plaintiff suffered financial harm without any allegations of facts to support that alleged harm are insufficient.
  4. Attorney fees for bringing suit on a matter cannot be the sole basis of standing to bring the matter; to do otherwise would permit any plaintiff without standing to create it by retaining counsel.
  5. “Wasted time” is not a sufficient harm for standing where no facts are alleged to support the claim.
  6. The risk of an invasion of privacy without an actual invasion of privacy is too speculative and not sufficient to confer standing.

Sophisticated Omnichannel Communication Strategies

This decision is another step forward for the use of email in debt collection as the consumer-friendly way. It also showcases the need for mindfulness when implementing an omnichannel communication strategy. Notably, while the court found a couple of emails are less intrusive than a phone call, it also stated that text messages, voicemail, and calls are different as they “are sufficiently intrusive on an individual’s peace and quiet” to support standing. Using a sophisticated omnichannel strategy helps debt collectors reach consumers at times that are right for the consumer and through the right communication channel, which ultimately creates a non-intrusive consumer experience.

Schedule a consultation to learn more about how email and an omnichannel approach can help their business’s collection efforts today»»