Robertson v. TrueAccord Corp et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
J ASMINE ROBERTSON, 	§
Plaintiff, 	§
§
v. 	§ 	C IVIL A CTION N O. 4:25-CV-2816
§
T RUEA CCORD CORP., ET AL., 	§
Defendants. 	§
MEMORANDUM AND RECOMMENDATION
Before the Court is Defendant TrueAccord Corp.’s (“TrueAccord”) Motion to
Dismiss Plaintiff’s Amended Complaint (ECF 4) under Rule 12(b)(6) for failure to
state a claim. 1 ECF 8. With respect to two of Plaintiff’s claims, alleged violations
of 15 U.S.C. §§ 1692g(a) and 1692(e)(10), the Court converted the Motion to a
motion for summary judgment. 	ECF 33. 	After reviewing the record, the Parties’
arguments, and the applicable law, the Court recommends the Motion to Dismiss
and converted motion for summary judgment be GRANTED with respect to all
claims for the reasons discussed below.
I. 	Background
This case arises from Defendant’s alleged attempts to collect on Plaintiff’s
debts. 	Congress enacted the Fair Debt Collection Practices Act (“FDCPA”) “to
1 The District Judge referred this case to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act,
and Federal Rule of Civil Procedure 72. ECF 16.
United States District Court
Southern District of Texas
ENTERED
February 19, 2026
Nathan Ochsner, Clerk
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eliminate abusive debt collection practices” and protect consumers. 	15 U.S.C. §
1692(e). The Act prohibits a variety of conduct that Congress deemed abusive and
provides for civil liability for violations of the act. 15 U.S.C. § 1692k. To state a
claim under the FDCPA, a plaintiff must allege facts demonstrating: “(1) the plaintiff
has been the object of collection activity arising from consumer debt; (2) the
defendant is a debt collector defined by the FDCPA; and (3) the defendant has
engaged in an act or omission prohibited by the FDCPA.” Woodley v. Resurgent
Cap. Servs., L.P., No. CV H-24-1587, 2024 WL 2806189, at *2 (S.D. Tex. May 31,
2024) (internal quotation marks and citation omitted). See also Sibley v. Firstcollect,
Inc., 913 F. Supp. 469, 471 (M.D. La. 1995). 	For purposes of the motions under
consideration, no party disputes that Plaintiff is a consumer who owed a debt within
the meaning of the FDCPA and Defendant is a debt collector as defined by the
FDCPA. ECF 4 ¶¶ 3, 9-11, 13. 	Defendant seeks dismissal under Rule 12(b)(6) and
Rule 56 based on Plaintiff’s failure to allege or provide summary judgment evidence
demonstrating that Defendant engaged in an act or omission prohibited by the
FDCPA.
Plaintiff claims Defendant violated five provisions of the FDCPA. ECF 4 ¶¶
37-48. 	Plaintiff alleges Defendant violated § 1692g(a) by failing to provide the
statutorily required debt validation notice containing: the debt amount; name of the
creditor; statement regarding the presumption of validity; the right to dispute and
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receive verification of the debt; and the right to request the name of the original
creditor. See 15 U.S.C. § 1692g(a). Plaintiff alleges Defendant violated § 1692g(b)
by failing to mail her verification of the debt and the original creditor’s information.
See 15 U.S.C. § 1692g(b). Plaintiff claims Defendant violated § 1692e(2)(A), which
prohibits false representations as to the character, amount, or legal status of any debt,
by allegedly sending text messages implying the debt was legally enforceable
without providing the debt validation notice. See 15. U.S.C. § 1692e(2)(A). Plaintiff
alleges Defendant violated § 1692e(10) by texting repeated payment demands
without providing the required debt validation notice explaining her right to dispute
the debt or request validation. See 15. U.S.C. § 1692e(10). Finally, Plaintiff claims
that in violation of § 1692e(10), Defendant caused her phone to ring with the intent
to annoy, abuse, or harass her in violation of the Act by repeatedly sending her text
messages. See 15. U.S.C. § 1692e(10).
Plaintiff also alleges that Defendant violated the Telephone Consumer
Protection Act by sending her text messages using an automatic telephone dialer
system without her consent.
II. 	Legal Standards
TrueAccord initially moved for dismissal of all Plaintiff’s FDCPA claims
under Rule 12(b)(6). ECF 8. After reviewing the Motion to Dismiss, Plaintiff’s
Response, and Defendant’s Reply (ECF 8; ECF 10; ECF 13), the Court notified the
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parties that with respect to Plaintiff’s claims for violations of 15 U.S.C. §§ 1692g(a)
and 1692e(10), it would convert the Motion to Dismiss to a motion for summary
judgment. ECF 33. 	This M&R applies the Rule 12(b)(6) standards when addressing
the TCPA claim and the FDCPA claims under 15 U.S.C. §§ 1692g(b), 1692e(2)(A),
1692d(5). 	The Court applies the Rule 56 standards when addressing the alleged
violations of §§ 1692g(a) and 1692(e)(10).
A. Rule 12(b)(6) motion to dismiss for failure to state a claim
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the conduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). In reviewing a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6), this Court “accepts all
well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.”
Alexander v. AmeriPro Funding, Inc., 848 F.3d 698, 701 (5th Cir. 2017) (citing
Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.
2004)). However, the court does not apply the same presumption to conclusory
statements or legal conclusions. Iqbal, 556 U.S. at 678-79.
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Generally, the court may consider only the allegations in the complaint and
any attachments thereto in ruling on a Rule 12(b)(6) motion. If a motion to dismiss
refers to matters outside the pleading it is more properly considered as a motion for
summary judgment. See F ED. R. CIV. P. 12(d). However, the court may take judicial
notice of public documents, and may also consider documents a defendant attaches
to its motion to dismiss under 12(b)(6) if the documents are referenced in the
plaintiff’s complaint and central to the plaintiffs’ claims. See Norris v. Hearst
Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007); Collins v. Morgan Stanley Dean Witter,
224 F.3d 496, 498-99 (5th Cir. 2000); King v. Life Sch., 809 F. Supp. 2d 572, 579
n.1 (N.D. Tex. 2011).
B. Rule 56 motion for summary judgment
Summary judgment is appropriate if no genuine issues of material fact exist,
and the moving party is entitled to judgment as a matter of law. 	FED. R. CIV. P.
56(a). The party moving for summary judgment has the initial burden to prove there
are no genuine issues of material fact for trial. 	Provident Life & Accident Ins. Co.
v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). 	Dispute about a material fact is
“genuine” if the evidence could lead a reasonable jury to find for the nonmoving
party. Hyatt v. Thomas, 843 F.3d 172, 177 (5th Cir. 2016). “An issue is material if
its resolution could affect the outcome of the action.” 	Terrebonne Parish Sch. Bd.
v. Columbia Gulf Transmission Co., 290 F.3d 303, 310 (5th Cir. 2002). 	If the
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moving party meets its initial burden, the nonmoving party must go beyond the
pleadings and must present evidence such as affidavits, depositions, answers to
interrogatories, and admissions on file to show “specific facts showing that there is
a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
The court construes the evidence in the light most favorable to the nonmoving
party and draws all reasonable inferences in that party’s favor. R.L. Inv. Prop., LLC
v. Hamm, 715 F.3d 145, 149 (5th Cir. 2013). 	In ruling on a motion for summary
judgment the Court does not “weigh evidence, assess credibility, or determine the
most reasonable inference to be drawn from the evidence.” Honore v. Douglas, 833
F.2d 565, 567 (5th Cir. 1987). 	However, “[c]onclus[ory] allegations and denials,
speculation, 	improbable 	inferences, 	unsubstantiated 	assertions, 	and 	legalistic
argumentation do not adequately substitute for specific facts showing a genuine
issue for trial.” U.S. ex rel. Farmer v. City of Houston, 523 F.3d 333, 337 (5th Cir.
2008) (citation omitted).
III. 	Analysis.
After notifying the parties of 	its intent to convert the motion to dismiss
Plaintiff’s claims under 15 U.S.C. §§ 1692g(a) and 1692e(10) to a motion for
summary judgment, the Court 	permitted limited discovery regarding the May 5,
2025 email Defendant claims to have sent in fulfilment of its initial communication
and debt validation notice duties under the FDCPA. 	In support of summary
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judgment Defendant submitted Plaintiff’s responses to Requests for Admission
(ECF 34-1) and a Declaration from a record custodian stating Defendant’s email
system sent the May 5, 2025 email to Plaintiff per usual practice and did not receive
any error message (ECF 34-2 at 1-5). Defendant also submitted a copy of the May
5, 2025 email (ECF 34-2 at 7-10).
In 	response 	to 	the 	converted 	motion 	for 	summary 	judgment 	Plaintiff
submitted an affidavit declaring she did not receive the email as evidenced by her
unsuccessful search for the email in her inbox. 	ECF 35 at 8-9. 	She attached two
exhibits to her affidavit. 	The first consists of three screenshots of text messages
Defendant sent to her phone. 	Id. at 11-12. 	The second exhibit consists of five
purported screenshots of the results from various searches Plaintiff conducted on her
Yahoo inbox. 	Id. at 14-16. 	The Court considered Defendant’s and Plaintiff’s
evidence in evaluating the alleged violations of §§ 1692g(a) and 1692(e)(10) under
the Rule 56 standard.
A. The FDCPA claims.
1. Plaintiff’s claim under § 1692g(a) should be dismissed under
Rule 56.
Section 1692g(a) of the FDCPA requires debt collectors to send debtors a
written 	notice 	of 	the 	following 	information 	within 	five 	days 	of 	the 	initial
communication, unless the information is contained in the initial communication:
(1) the amount of the debt;
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(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt
of the notice, disputes the validity of the debt, or any portion thereof,
the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing
within the thirty-day period that the debt, or any portion thereof, is
disputed, the debt collector will obtain verification of the debt or a copy
of a judgment against the consumer and a copy of such verification or
judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the
thirty-day period, the debt collector will provide the consumer with the
name and address of the original creditor, if different from the current
creditor.
15 U.S.C. §1692g(a).
Defendant 	claims 	to 	have 	emailed 	the 	required 	debt 	validation 	notice
information in its initial communication with Plaintiff on May 5, 2025. Defendant’s
General Counsel and record custodian, Katie Neill, submitted an affidavit stating
that based on a search of the regularly maintained account records, Defendant sent
an email to Plaintiff on May 5, 2025. 2 	ECF 34-2 ¶¶ 2-6. The affidavit attests that
Defendant’s email system receives and makes a note of any bounce-back and non-
delivery messages. 	However, no such bounce back or undeliverable message was
received after Defendant sent the May 5, 2025 email to Plaintiff. 	ECF 34-2 ¶¶ 6-
11. Neill’s affidavit states that other emails were sent by Defendant’s email system
to Plaintiff’s same email address without issue. Id. at 12. Defendant also provided
2 Defendant indicates it sent the email to the address jasmine.robertson11@yahoo.com. ECF 8 ¶
7; ECF 34-2; ECF 35 at 8-9. Plaintiff has admitted that she owned and had access to the email
address during the relevant period. ECF 34-1.
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a copy of the May 5, 2025 email, which contains information about the specific debt,
methods for disputing the debt, and the deadline for disputing the debt, payment
options, and Defendant’s contact information. ECF 34-2 at 7-10.
Plaintiff argues she did not receive the May 5, 2025 email containing the
required notice information. 	See ECF 35 at 3 (“TrueAccord says the Court should
presume the May 5, 2025 email was sent and received even though Plaintiff denies
receipt.”); ECF 4 ¶¶ 22-23; ECF 34-1 (response to request for admission). Rather,
Plaintiff alleges TrueAccord’s first contact with her regarding the debt was via text
message on May 9, 2025 sent from the short code 58469. 	ECF 4 ¶¶ 15, 17. 	She
argues that none of the text messages contained the required statutory notice
information. Id. ¶ 16. Plaintiff submitted a sworn declaration stating she conducted
a keyword and sender search of her email inbox and found no record of the May 5,
2025 email. ECF 35 at 8-9. Plaintiff attached screenshots of her inbox searches. Id.
at 14-16.
Whether Plaintiff received the May 5, 2025 email is irrelevant for purposes of
her § 1692g(a) claim. 	Section 1692g(a) requires only that the debt collector send
the statutory notice, not that the debtor actually receive it. See 15 U.S.C. § 1692(a)
(“Within five days after the initial communication with a consumer . . . a debt
collector shall . . . send the consumer a written notice containing [the statutorily
required information”); 12 C.F.R. § 1006.42(a)(1) (“A debt collector who sends
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disclosures required by the Act and this part in writing or electronically must do so
in a manner that is reasonably expected to provide actual notice”). Well established
law holds that § 1692g(a) only requires the debt collector to demonstrate the notice
was sent, not that the debtor received it. See Mahon v. Credit Bureau of Placer Cnty.
Inc., 171 F.3d 1197, 1201 (9th Cir. 1999) (“We hold that section 1692g(a) requires
only that a Notice be ‘sent’ by a debt collector. A debt collector need not establish
actual receipt by the debtor.”), as amended on denial of reh'g and reh'g en banc
(Apr. 28, 1999); Ghanta v. Immediate Credit Recovery, Inc., No. 3:16-CV-00573-
O, 2017 WL 1423597, at *7 (N.D. Tex. Apr. 18, 2017) (“But it is irrelevant whether
Plaintiff actually received the debt verification because Defendant's statutory duty
to mail Plaintiff debt verification would have been satisfied when the debt
verification was placed in the mail with a proper address and sufficient postage,
regardless of whether Plaintiff ultimately received it.”); Johnson v. Att'y Off. of
Newman, Mathis, Brady & Spedale, No. 12-706-RLB, 2013 WL 6834381, at *6
(M.D. La. Dec. 23, 2013) (collecting cases).
Thus, even though for summary judgment purposes the Court accepts as true
Plaintiff’s testimony that she never received the May 5, 2025 email, no genuine
dispute of material fact exists as to whether Defendant sent the email in a manner
reasonably expected to provide actual notice. 	Plaintiff admits she owns the email
address to which Defendant sent the email. 	None of her summary judgment
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evidence creates a genuine dispute of fact as to whether Defendant sent the notice.
Defendant has presented uncontroverted summary judgment evidence that it sent the
required notice by email on May 5, 2025 to an email address owned by Plaintiff and
received no bounce-back or error message. 	ECF 34-2; see also, Antoine v. J.P.
Morgan Chase Bank, 757 F. Supp. 2d 19, 23 (D.D.C. 2010) (granting summary
judgment because “Plaintiff alleges that he never received this notice, but presents
no evidence that it was not sent or that it does not satisfy the FDCPA disclosure
requirements.” [emphasis in original]); Neel v. Fannie Mae, No. 1:12CV311-HSO-
RHW, 2014 WL 977328, at *9 (S.D. Miss. Mar. 12, 2014) (citing Antoine and
granting defendant’s summary judgment claim where plaintiffs contested receipt by
did not provide evidence showing failure to send notice).
The May 5, 2025 email satisfied the FDCPA’s § 1692g validation notice
requirement: the email constitutes Defendant’s initial communication with Plaintiff
and it contained all required information. 3 The May 5, 2025 email preceded the May
9, 2025 text message which did not contain the required notice information. Section
1692g does not require a debt collector to send an additional § 1692g notice in a
3 Defendant’s May 5, 2025 email contained the following information: 	(1) the debt was for
$337.13; (2) the original creditor was AT&T U-Verse; (3) Defendant would assume the debt was
valid unless Plaintiff disputed it by June 11, 2025 (37 calendar days from date of email); (4)
Defendant would stop collection on any portion of the debt disputed during that period until it sent
Plaintiff information showing she owed the debt; and (5) Plaintiff could request the name and
address of the original creditor, if different from the current creditor, within that period, and
Defendant would stop collection until providing the information. ECF 34-2 at 7-10. See 15 U.S.C.
§ 1692g(a) (listing the five pieces of statutorily required information).
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particular form if the statutorily required information is included in the initial
communication. See 15 U.S.C. § 1692a(2) (defining communication as “conveying
of information . . . through any medium”); 15 U.S.C. § 1692g(a) (requiring notice
“unless the . . . information is contained in the initial communication”); Greene v.
TrueAccord Corp., No. 19-CV-06651-EMC, 2020 WL 12834572, at *4-5, *7 (N.D.
Cal. 	May 	19, 	2020) 	(explaining 	that 	where 	the 	§ 	1692g 	validation 	notice
requirements are included in the body of an emailed initial communication,
compliance with the E-Sign Act (15 U.S.C. §§ 7001 et seq.) consent provisions is
not required); 12 C.F.R. § 1006.42(b) (explaining that § 1692g validation notices
separate from the initial communication must conform with the E-Sign Act is sent
via 	electronic 	means). 	The 	uncontroverted 	summary 	judgment 	evidence
demonstrates Defendant’s initial communication was the May 5, 2025 email, the
email was sent to an email address Plaintiff admits to owning, and the email
contained the statutorily required information. 	Thus, Defendant is entitled to
summary judgment on Plaintiff’s § 1692g(a) claim.
2. Plaintiff’s § 1692g(b) claim should be dismissed under Rule
12(b)(6).
Section 1692g(b) requires a debt collector to cease collection of a debt if the
consumer disputes the debt or requests the original creditor’s information in writing
within the 30-day period described in subsection (a). 	15 U.S.C. § 1692g(b). 	The
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debt collector may not resume collection until it has provided the consumer with
either the verification or the requested creditor info. Id.
Although Plaintiff alleges TrueAccord violated § 1692g(b) (ECF 4 ¶ 48), she
has not stated any facts indicating she attempted to dispute the debt, request the
original 	creditor’s 	information, 	or 	communicated 	with 	Defendant 	in 	writing
whatsoever. Therefore, she has failed to state a claim for a violation of § 1692g(b).
3. Plaintiff’s 	§ 	1692e(2)(A) 	should 	be 	dismissed 	under 	Rule
12(b)(6).
Section 1692e prohibits debt collectors from making “any false, deceptive, or
misleading representation or means in connection with the collection of any debt.”
15 	U.S.C. 	§ 	1692e. 	Section 	1692e(2)(A) 	specifically 	prohibits 	the 	false
representation of “the character, amount, or legal status of any debt” in connection
with collection activity. 15 U.S.C. § 1692e(2)(A).
Plaintiff alleges that after sending the May 9, 2025 text message, Defendant
sent additional text messages on May 9, May 13, May 17, May 20, May 24, May 28,
June 1, June 5, June 8, and June 12, 2025. ECF 4 ¶ 18. Plaintiff claims that the May
24 and June 8, 2025, messages contained payment links and language such as “‘Start
a plan with payments of $56.19’ and ‘Pay $279.82 and resolve your outstanding
balance.’” Id. ¶ 21 (original formatting removed). 	Plaintiff argues that Defendant
“falsely [implied] that the alleged debt was legally due and enforceable before
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providing the validation [§ 1692g(a)] notice . . . [which created] a misleading
impression of the debt’s legal status.” Id. ¶ 39.
Plaintiff’s § 1692e(2)(A) claim that the language of the text messages falsely
represents the character, amount, or legal status of the debt in the absence of the
required debt validation notice information fails because she does not identify a false
representation in the text messages. Nothing in the text messages, even absent the
statutory notice, asserts payment is immediately due or creates a false sense of
urgency, and Plaintiff did not plead that the messages claimed a different amount of
debt than actually owed. 	See Bentson v. Chyma, No. 4:15-CV-00523-ALM-CAN,
2017 WL 9250309, at *6 (E.D. Tex. July 7, 2017) (explaining that § 1692e(2)(A)
can encompass misrepresenting the amount of a debt, falsely asserting a debt is
mature, or creating a false sense of urgency), report and recommendation adopted,
No. 4:15-CV-523, 2017 WL 3431501 (E.D. Tex. Aug. 10, 2017). 	Additionally,
failure to provide a debt validation notice does not cause otherwise unobjectionable
language to be misleading. See Lindley v. TRS Recovery Assocs., Inc., No. 2:12-CV-
109, 2012 WL 6201175, at *2 (S.D. Tex. Dec. 12, 2012) (“The FDCPA does not
protect consumers who intentionally distort communications or make irrational
claims.”). 	Furthermore, the statute specifically allows a debt collector to make an
initial communication to a debtor that does not contain the validation notice
information, and then send a separate validation notice up to five days later. 	15
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U.S.C. § 1692g(a). 	The debt collector therefore can begin collection efforts up to
five days before sending the validation notice information. 	Plaintiff’s argument,
taken to its logical end, would convert statutorily permitted collection activity
occurring 	during 	that 	five-day 	period, 	in 	situations 	in 	which 	the 	initial
communication did not contain the § 1692g(a) information, into a violation of §
1692e(2)(A) even though the communications during that five-day period contained
no objectionable language.
4. Plaintiff’s § 1692e(10) claim should be dismissed under Rule 56.
Section 1692e(10) specifically disallows “[t]he use of any false representation
or deceptive means to collect or attempt to collect any debt or to obtain information
concerning a consumer.” When considering whether a statement is misleading, the
Court looks to the least sophisticated consumer standard, 4 which serves to protect
even inexperienced or naive debtors while also shielding creditors from liability for
“bizarre 	or 	idiosyncratic 	consumer 	interpretations 	of 	collection 	materials.”
McMurray v. ProCollect, Inc., 687 F.3d 665, 669 (5th Cir. 2012) (internal quotation
marks and citation omitted). 	The Court may only dismiss a § 1692e claim when
reasonable minds cannot differ as to whether a communication would be misleading
to the least sophisticated consumer. 	See Gonzalez v. Kay, 577 F.3d 600, 607 (5th
4 The Fifth Circuit has noted that there is a ‘least sophisticated’ and ‘unsophisticated’ consumer
standard, and that both are viable, arrive at the same results, and serve the same purpose.
McMurray v. ProCollect, Inc., 687 F.3d 665, 669 (5th Cir. 2012).
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Cir. 2009) (employing the “reasonable minds can differ” standard to reverse
dismissal).
Plaintiff claims Defendant violated § 1692e(10) by “using deceptive means to
collect the debt, including sending repeated payment demands [the multiple text
messages] without disclosing 	Plaintiff’s right 	to dispute the debt or request
validation [i.e., the information required in the § 1692g notice—here, the email].”
ECF 4 ¶ 40. 	Although Plaintiff argues in her supplementary briefing that the §
1692e(10) claim does not rise or fall on the notice issue (see ECF 35 at 6-7), the
pleadings indicate the claim is predicated on the alleged § 1692g notice violation. 5
See ECF 4 ¶ 41 (“[t]hese omissions [i.e., the lack of validation notice] misled
Plaintiff into believing she had no right to challenge the debt and pressured her to
pay without full knowledge of her legal options.”).
For the same reasons discussed above, no genuine dispute of material fact
exists that Defendant met the § 1692g(a) validation notice requirements. 	Even
though the statute requires only that the notice be sent, the mailbox rule presumes
email was received. See Gezu v. Charter Commc'ns, 17 F.4th 547, 553–54 (5th Cir.
5 To the extent that Plaintiff’s claim rests on a factual theory other than the lack of the
statutory notice, her pleading does not put Defendant on notice of that allegation and the claim
should be dismissed under 12(b)(6). 	See Nelson v. Receivables Outsourcing, LLC, No.
CV1711543RBKAMD, 2018 WL 3854796, at *3 (D.N.J. Aug. 14, 2018) (dismissing a §
1692e(10) claim and noting “And to the extent Plaintiff relies on an alternative, unstated theory of
‘false representation or deceptive means,’ the Court finds that Plaintiff has failed to put Defendant
on notice as to the claims against it.”).
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2021) (applying mailbox rule to email and explaining that mailbox rule presumes
receipt if there is evidence the email was sent; the presumption shifts the burden to
other party to rebut receipt). Defendant’s records custodian indicated the email was
sent according to Defendant’s regular procedures and that there was no record of a
bounce-back or other error. 	ECF 34-2. 	See Custer v. Murphy Oil USA, Inc., 503
F.3d 415, 420 (5th Cir. 2007) (noting that sworn affidavits stating a letter was sent
according to a party’s normal mailing procedures is enough to establish mailbox rule
presumption of receipt). 	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. ECF 35 at 8-9. 	See Nart v.
Open Text Corp., No. A-10-CV-870-LY-AWA, 2013 WL 442009, at *2 n.4 (W.D.
Tex. Feb. 5, 2013) (applying mailbox rule to email and finding presumption of
receipt not rebutted by assertion of non-receipt where there was no evidence of email
bounce back), report and recommendation adopted, No. A-10-CV-870-LY, 2013
WL 12385060 (W.D. Tex. Mar. 12, 2013); Krohn v. Spectrum Gulf Coast, LLC, No.
3:18-CV-2722-S, 2019 WL 4572833, at *3 (N.D. Tex. Sept. 19, 2019). Therefore,
the Court must apply the mailbox rule presumption.
The May 5, 2025 email communication provided the required information
Plaintiff claims was omitted: specific instructions on how to dispute the debt; how
to request validation, and how to communicate via email, phone, or mail with
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Defendant. 	ECF 34-2. 	The text messages presented by Plaintiff as summary
judgment 	evidence 	include 	language 	on 	resolving 	the 	debt 	(“Resolve 	your
outstanding balance with us,” “[Y]ou can take care of this debt online,” “Check out
your account summary and also select a payment option,” “Start a plan with
payments”). ECF 35 at 11-12. Each message states that Defendant is a debt collector
and provides instructions for opting out of text message communication. Id. Given
the non-threatening tone, lack of time pressure, and the email’s instructions, nothing
in the messages would mislead the least sophisticated consumer. 	See Goswami v.
Am. Collections Enter., Inc., 377 F.3d 488, 495 (5th Cir. 2004) (finding language is
not misleading where it “appropriately expresses importance of correspondence . . .
[but] would not serve to intimidate or threaten even the most gullible debtor.”). Even
the least sophisticated consumer would be able to read a simple text message in light
of information he or she learned from reading a prior, straightforward email.
5. Plaintiff’s 	§ 	1692d claim 	should 	be 	dismissed 	under 	Rule
12(b)(6).
Section 1692d of the FDCPA prohibits debt collectors from engaging “in any
conduct the natural consequence of which is to harass, oppress, or abuse any person
in connection with the collection of a debt.” 	15 U.S.C. § 1692d. 	The statute
specifically prohibits “[c]ausing a telephone to ring or engaging any person in
telephone conversation repeatedly or continuously with intent to annoy, abuse, or
harass any person at the called number.” 15 U.S.C. § 1692d(5). Typically, “whether
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a debt collector's conduct constituted harassment, oppression or abuse in violation
of the Act is a question of fact for the jury, however, in appropriate cases, the
question can be resolved as a matter of law.” Lee v. Credit Mgmt., LP, 846 F. Supp.
2d 716, 725 (S.D. Tex. 2012) (dismissing plaintiff’s § 1692d claim in the absence of
evidence defendant intended to annoy, abuse or harass, defendant only called
plaintiff 	“a 	handful 	of 	times,” defendant’s 	representatives 	were not 	rude or
threatening, calls were brief, and there was never more than one call in a day).
Courts infer intent by examining the frequency, pattern, and substance of the
defendant’s communications. See Karp v. Fin. Recovery Srvcs, Inc., No. A-12-CA-
985-LY, 2013 WL 6734110, at *6 (W.D. Tex. Dec. 18, 2013), 	report and
recommendation approved sub nom. Karp v. Fin. Recovery Servs., Inc., No. A-12-
CV-0985-LY, 2014 WL 12638504 (W.D. Tex. Jan. 7, 2014).
As mentioned above, Plaintiff alleges Defendant sent her text messages
concerning the debt on May 9, May 13, May 17, May 20, May 24, May 28, June 1,
June 5, June 8, and June 12, 2025. 	ECF 4 ¶ 18. 	Plaintiff claims some messages
contained payment links and language such as “‘Start a plan with payments of
$56.19’ and ‘Pay $279.82 and resolve your outstanding balance.’” Id. ¶ 21 (original
formatting removed).
Plaintiff’s allegations that TrueAccord sent her around 11 text messages in
May and June 2025 do not create the inference of harassment. 	Although no
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brightline rule defines the intent to harass, courts typically require high frequency or
overall number of calls. Compare Miller v. Cain, No. 14-2613, 2015 WL 222434, at
*5 (W.D. La. Jan. 14, 2015) (dismissing claim because single call was legally
insufficient to state a claim under § 1692d(5) and noting courts have found six calls
over two weeks or four calls over seven days insufficient, collecting cases), with
Karp, 2013 WL 6734110, at *7 (noting that courts found 33 calls over 73 days was
sufficient, six calls in 24 minutes was sufficient, 54 calls to consumer’s workplace
was sufficient). 	Defendant sent approximately 11 messages across slightly over a
month, never sent more than one in a single day, and waited at least two full days
between messages. 	See Reed v. Receivable Recovery Servs., LLC, No. CV 16-
12666, 2017 WL 1399597, at *13 (E.D. La. Apr. 19, 2017) (finding on summary
judgment that 14 calls over five weeks without egregious conduct—such as multiple
calls in a single day, calling plaintiff’s work or third parties, or calling after being
asked to stop—did not support a harassment claim), aff'd sub nom. Reed v.
Receivable Recovery Servs., L.L.C., 702 F. App'x 239 (5th Cir. 2017). Plaintiff also
never requested Defendant stop texting her, even though the message explicitly
provided an opt-out option as described above. 	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. See
Vazzano 	v. 	Receivable 	Mgmt. 	Servs., 	LLC, 	No. 	3:21-CV-0825-D, 	2021 	WL
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3742618, at *4 (N.D. Tex. Aug. 24, 2021) (explaining that letters are less intrusive
than phone calls). 	See also Cunningham v. Radius Glob. Sols. LLC, No. 4:20-CV-
00294, 2020 WL 5518073, at *4 (E.D. Tex. Sept. 14, 2020) (noting in discussion of
TCPA claim that text messages are less intrusive because they can be dealt with in
“one glance”).
B. Plaintiff’s TCPA should be dismissed under Rule 12(b)(6).
Congress enacted the TCPA to curb “abusive telemarketing practices by . . .
imposing restrictions on making calls with an ‘automatic telephone dialing system.’”
Facebook, Inc. v. Duguid, 592 U.S. 395, 398 (2021). The TCPA prohibits “any call
(other than a call made for emergency purposes or made with the prior express
consent of the called party) using any automatic telephone dialing system [“ATDS”]
or an artificial or prerecorded voice . . . to any telephone number assigned to . . . a
cellular telephone service.” 	47 U.S.C. § 227(b)(1)(A)(iii). 	The statute defines an
ATDS as “equipment which has the capacity . . . to store or produce telephone
numbers . . . using a random or sequential number generator . . . [and] to dial such
numbers.” 47 U.S.C. § 227(a)(1).
To make out a TCPA claim, a plaintiff must demonstrate that: “(1) the
defendant [texted] a cellular telephone number; (2) using an automatic telephone
dialing system . . . ; (3) without the recipient's prior express consent.” Cunningham
v. Nationwide Sec. Sols., Inc., No. 3:17-CV-00337-M, 2017 WL 10486988, at *2
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(N.D. Tex. Nov. 2, 2017) (internal quotation marks and citations omitted). 	The
Supreme Court explained that to meet the statutory definition of an ATDS,
equipment may either store or produce numbers to be called, but “must use a random
or sequential number generator” to do so. 	Duguid, 592 U.S. at 404. 	It can be
difficult for plaintiffs “to plead facts that support use of an ATDS,” but plaintiffs
“must [still] provide at least enough facts to make a plausible inference that [a
defendant] used an ATDS.” Miles v. LawnStarter, Inc., No. A-20-CV-249-RP, 2020
WL 10056080, at *3 (W.D. Tex. Dec. 1, 2020). Because of this difficulty, plaintiffs
and courts often rely on indirect allegations regarding the number and nature of the
messages. 	See Suttles v. Facebook, Inc., 461 F. Supp. 3d 479, 487 n.2 (W.D. Tex.
2020).
Plaintiff has failed to plead facts to support the inference that Defendant used
an ATDS to send the text messages. 	Plaintiff alleges that True Accord sent her
unsolicited text messages in May and June 2025. ECF 4 ¶¶ 18, 51-52. She alleges
the messages were sent to her personal cellular phone via SMS from a short code 6
and that Defendant used an ATDS without human intervention. Id. ¶¶ 51, 54. Yet,
merely alleging the use of an ATDS “is insufficient to sustain a TCPA claim.”
6 Text messages can be sent from a long code (i.e., a 10-digit phone number used by consumers
and businesses) or a short code, which is a four-to-six-digit number for sending text messages
more commonly used by businesses. See Hunsinger v. Alpha Cash Buyers, LLC, No. 3:21-CV-
1598-D, 2022 WL 562761, at *1 n.2 (N.D. Tex. Feb. 24, 2022).
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Hunsinger, 2022 WL 562761, at *3–4 (N.D. Tex. Feb. 24, 2022) (internal quotation
marks and citation omitted). 	The facts alleged by Plaintiff only plausibly support
the inference Defendant did not use an ATDS. Defendant’s alleged use of short code
is inconclusive. See Hunsinger, 2022 WL 562761, at *5. 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. 	See Gardner v. Navient, LLC, No.
3:24-CV-198-S-BN, 2024 WL 3363016, at *4 (N.D. Tex. June 7, 2024) (“[F]rom
the facts alleged – that [plaintiff] was contacted concerning a debt that she allegedly
owed – the Court may more reasonably infer a preexisting relationship between the
parties and that no ATDS . . . was used.”), report and recommendation adopted, No.
3:24-CV-198-S-BN, 2024 WL 3362475 (N.D. Tex. July 9, 2024); Suttles, 461 F.
Supp. 3d at 487 (“Allegations of directly targeting specific individuals weigh against
an inference that an ATDS was used.”).
IV. 	Conclusion and Recommendation.
For the reasons stated above, the Court RECOMMENDS that TrueAccord’s
Motion to Dismiss (ECF 8) Plaintiff’s §§ 1692g(b), 1692e(2), and 1692d claims be
GRANTED. Furthermore, Defendant’s converted motion for summary judgment on
Plaintiff’s claims for violations of §§ 1692g(a) and 1692e(10) should be GRANTED.
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The 	Clerk 	of 	the 	Court 	shall 	send 	copies 	of 	the 	memorandum 	and
recommendation to the respective parties, who will then have fourteen days to file
written objections, pursuant to 28 U.S.C. § 636(b)(1)(C). 	Failure to file written
objections within the time period provided will bar an aggrieved party from attacking
the factual findings and legal conclusions on appeal. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on
other grounds.
Christina A. Bryan
United States Magistrate Judge
Christina A Bryan
Signed on February 19, 2026, at Houston, Texas.
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