Opting Out of Letters? Not So Fast Says Texas Court

Consumers cannot opt out of receiving mail through the United States Postal Service; at least according to  a Judge in the Eastern District of Texas.  Per the court, a preference to avoid physical mail is outside the scope of the consumer’s right to limit the time and place of communications. 

Marks v. Javitch Block LLC, Civil Action 1:23-CV-431-MJT-CLS (E.D. Tex. Mar 15, 2024), began like many Fair Debt Collection Practice Act (FDCPA) cases: A collector sent a demand letter that informed the consumer of their ability to dispute the debt, the consumer responded with a request for verification and, the collector responded verifying the consumer’s debt. However, the consumer’s letter also stated that it was only convenient to contact them via email and the collector mailed their verification letter. The consumer then filed suit claiming that the collector’s last letter was an FDCPA violation as it was mailed to them despite their preference for email.

Though a consumer can limit communications to certain times and/or the consumer did not claim that the communication was sent at an inconvenient time or to an inconvenient place. Instead, the consumer alleged that mail was an inconvenient mode of communication. In dismissing the suit, the court focused on the time and place aspects stating that the consumer’s email preference “falls outside the scope of his right to limit the time and place of communications from the debt collector under the FDCPA and the caselaw of this circuit.” The decision also pointed out that the FDCPA definition of communication is information about a debt being sent “through any medium.”

insideARM Perspective

While we cannot know if the consumer was baiting the debt collector or if they truly find physical mail to be inconvenient, many collectors are having trouble balancing compliance with the FDCPA and compliance with the preferences of consumers. This case, though just a district court decision, is certainly a step in the right direction as collectors can have some confidence that, when in doubt, they can still mail a letter. It also highlights the importance of training employees to catch this type of preference language in communications from consumers because, while successfully defending against an FDCPA suit is convenient, not being sued in the first place should be the preference.