Judge Grants MTD in FDCPA Case Over Sending Initial Communication via Email

A District Court judge in California has granted a defendant’s motion to dismiss after it was sued for violating the Fair Debt Collection Practices Act by sending an initial communication via email.

A copy of the ruling in the case of Greene v. TrueAccord can be accessed by clicking here.

[EDITOR’S NOTE: Join the attorneys who represented TrueAccord in this case — Kelly Knepper-Stephens and Leah Strickland — along with Nicole Strickler for a free webinar on Friday, May 22 at 1pm ET to discuss this case and integrating email into your communication strategy. REGISTER HERE.]

The plaintiff received an email from the defendant, attempting to collect on an unpaid debt. This initial communication included a validation notice. The plaintiff filed suit, alleging the email violated the Electronic Signatures in Global Commerce (E-SIGN) Act because she never consented to receive email from the defendant. The plaintiff also claimed the email violated Section 1692g(a)(4) of the FDCPA because the email referred to “send[ing]” a copy of the verification of the debt where the FDCPA says the verification must be mailed.

The defendant sent a half-dozen or so more emails during the validation period, which the plaintiff claimed overshadowed the validation notice.

Because the FDCPA allows the initial communication to be made either in writing or orally, allowing it to be made electronically is a “reasonable argument,” said Judge Edward Chen of the District Court for the Northern District of California, especially since the Consumer Financial Protection Bureau indicated in its proposed debt collection rule that the validation notice can be sent via email when it is part of the initial communication.

The plaintiff also tried to argue that the subject line of the email — “This needs your attention” — violated the FDCPA because it did not convey that the message was about collecting a debt. But Judge Chen noted that the plaintiff opened the email and clicked on a link in it. That negated any standing she might have had to sue on that basis, Judge Chen ruled.

Finally, Judge Chen noted that using the word “send” instead of “mailed” in the initial communication would not have confused the least sophisticated consumer. “The least sophisticated debtor, if concerned about
getting a verification of debt via email, could always ask for a copy to be sent via physical mail instead,” he wrote.

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