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 January Technologies’ (“January”) Motion to
Dismiss Plaintiff’s Amended Complaint for failure to state a claim. 1 ECF 9.
Plaintiff filed a Response 2 (ECF 11) and January filed a Reply (ECF 12). 	After
reviewing the record, the Parties’ arguments, and the applicable law, the Court
recommends the Motion be GRANTED IN PART.
I. 	Background.
This case arises out of Defendant’s alleged attempts to collect on Plaintiff’s
debt. Congress enacted the FDCPA “to eliminate abusive debt collection practices”
and protect consumers. 15 U.S.C. § 1692(e). The Act prohibits a variety of conduct
and provides civil liability for violations of the Act. 	15 U.S.C. § 1692k. Here,
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.
2 Plaintiff’s Response (ECF 11) contains several case citations which are inaccurate and potentially
false. 	The Court addresses these citations and Plaintiff’s potential use of generative artificial
intelligence in a separate order. See ECF 37.
United States District Court
Southern District of Texas
ENTERED
February 18, 2026
Nathan Ochsner, Clerk
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Plaintiff alleges Defendant violated 15 U.S.C. § 1692d (harassment and abuse); 15
U.S.C. § 1692e (false or misleading representations); and 15 U.S.C. § 1692g
(validation of debt).
Plaintiff also alleges Defendant January violated the Telephone Consumer
Protection 	Act 	(“TCPA”). 	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). 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). 	Specifically,
Plaintiff claims Defendant sent her unsolicited messages using an auto-dialer. 	See
47 U.S.C. § 227(b)(1)(A)(iii).
II. 	Legal Standards.
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
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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.
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 FED. 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).
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III. 	Analysis.
A. Defendant’s Motion to Dismiss Plaintiff’s FDCPA claims should be
denied.
To state an FDCPA claim, 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). Defendant January moves for dismissal
under Rule 12(b)(6), arguing Plaintiff has failed to sufficiently allege the first two
prongs of and FDCPA claim: (1) that she was subject to collection activity regarding
a consumer debt; and (2) that January is a debt collector. ECF 9 at 3-5.
1. Plaintiff’s pleading alleges facts demonstrating she was subject
to collection activity on a consumer debt as defined by the Act.
The FDCPA defines consumer as “any natural person obligated or allegedly
obligated to pay any debt.” 15 U.S.C. § 1692a(3). The Act defines debt as:
any obligation or alleged obligation of a consumer to pay money arising
out of a transaction in which the money, property, insurance, or services
which are the subject of the transaction are primarily for personal,
family, or household purposes, whether or not such obligation has been
reduced to judgment.
15 U.S.C. § 1692a(5).
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Plaintiff’s Amended Complaint alleges she is a natural person residing in
Texas who incurred a debt that she was unable to pay due to her financial
circumstances, and that the debt was sold or transferred to Defendant. ECF 4 ¶¶ 3,
12. Plaintiff also alleges January contacted her at least six times between May and
June 2025, by text message to collect an alleged debt incurred for Nuovo Artistic
Studios. Id. at ¶¶ 29-32 (“‘You may be able to negotiate lower payment’” and “‘we
offer payment plans to pay off your Nuovo Artistic Studios.’”). Plaintiff’s Amended
Complaint asserts she is a consumer within the meaning of the Act and that the debt
was for “personal, family or household purposes.” Id. at ¶¶ 9-10.
Here, the Court uses “its judicial experience and common sense” to make a
“context-specific” inquiry into plausibility. Iqbal, 556 U.S. at 679. 	Taking the
pleaded facts as true, Plaintiff alleges she was the object of a collection activity
regarding a consumer debt “that is plausible on its face.” Twombly, 550 U.S. at 570;
see also ECF 4 ¶¶ 32, 53; ECF 11 at 3 (alleging Plaintiff is a natural person who
incurred a debt for personal purposes from Nuovo Artistic Studios in Houston and
that Defendant January repeatedly texted her attempting to collect the debt).
Plaintiff’s pleading explains to whom she owed the original debt, the circumstances
of the original purchase (in-store), and that it was incurred for personal rather than
business reasons. See Iqbal, 556 U.S. at 678.
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The case cited by Defendant is readily distinguishable. See ECF 9 at 4-5. In
Black v. De La Torre, the Court granted dismissal of FDCPA claims where, because
plaintiff repeatedly claimed the lease at issue was between his company and
defendants, he could not demonstrate a consumer debt. 	See Black v. De La Torre,
No. CV H-20-1604, 2021 WL 2019202, at *1, 5 (S.D. Tex. May 20, 2021). Here,
Plaintiff claims her debt to Nuovo Artistic Studios was for personal purposes. Given
the liberal construction afforded to pro se plaintiffs, and at the pleading stage,
Plaintiff has met her “burden to show that the obligation at issue was incurred
primarily for personal, family, or household purposes.” Id. (internal quotation marks
and citation omitted). 	See Simmons v. United States, 142 S. Ct. 23, 25 (2021)
(explaining that the Supreme Court “has repeatedly stressed” that pro se complaints
should be liberally construed and “held to less stringent standards than formal
pleadings drafted by lawyers.” (internal quotation marks omitted)).
2. Plaintiff’s pleading alleges facts demonstrating Defendant is a
debt collector within the meaning of the Act.
The FDCPA defines a debt collector as:
[A]ny person who uses any instrumentality of interstate commerce or
the mails in any business the principal purpose of which is the
collection of any debts or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be owed or due
to another.
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15 U.S.C. § 1692a(6). The statutory definition excludes “any officer or employee
of a creditor while, in the name of the creditor, collecting debts for such creditor.”
15 U.S.C. § 1692a(6)(A).
Plaintiff alleges January is not her original creditor. ECF 4 ¶ 12. 	She claims
January, an out-of-state corporation licensed to do business in Texas, has a bond on
file with the Texas Secretary of State as required by Texas law to engage in third-
party debt collection in the state. Id. at ¶ 25. See also Tex. Fin. Code § 392.101 (“A
third-party debt collector . . . may not engage in debt collection unless [it] has
obtained a surety bond . . . [and] [a] copy of the bond must be filed with the secretary
of state”). 	Plaintiff also alleges January communicated in a text message that
“January is a debt collector.” ECF 4 ¶ 53. 	Finally, Plaintiff alleges that January has
attempted to collect on the debt via text message. ECF 4 ¶¶ 28-32.
Taken as true, these allegations make out a plausible claim that January is a
debt collector within the meaning of the statute and Defendant’s motion to dismiss
the FDCPA claim should be denied.
B. Defendant’s Motion to Dismiss Plaintiff’s TCPA claim should be
granted.
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 alleges Defendant January sent her unsolicited text messages in May
and June 2025. 	ECF 4 ¶¶ 29, 51, 53. 	She alleges the messages were sent to her
personal cellular phone via SMS from a short code 3 and that Defendant used an
ATDS without human intervention. Id. at ¶¶ 51, 54.
Plaintiff has failed to allege facts supporting the inference that Defendant used
an ATDS to send the messages. 	Merely alleging the use of an ATDS, as Plaintiff
3 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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does here, “is insufficient to sustain a TCPA claim.” Hunsinger, 2022 WL 562761,
at *3–4 (internal quotation marks and citation omitted). Although the allegation that
Defendant sent the messages from a short code can lead to an inference that an ATDS
was used, that allegation is not conclusive. 	Hunsinger, 2022 WL 562761, at *5.
Crucially, 	the 	allegation 	that 	Defendant’s 	messages 	contained 	personalized
information (a debt owed for a purchase at a specific store) makes the use of an
ATDS—a device used to generate random telephone numbers—far less plausible.
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). 	It is unlikely that Defendant would use an ATDS to
randomly generate phone numbers and then send a personalized, non-generic
message to those randomly generated phone numbers. See Suttles, 461 F. Supp. 3d
at 487 (“Allegations of directly targeting specific individuals weigh against an
inference that an ATDS was used.”). The facts alleged by Plaintiff do not support a
plausible inference that Defendant used an ATDS to send the text messages.
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IV. 	Conclusion and Recommendation.
For the reasons stated above, the Court RECOMMENDS that January’s
Motion to Dismiss (ECF 9) be GRANTED IN PART. 	The Motion should be
DENIED as to the FDCPA claims and GRANTED as to the TCPA claim.
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 18, 2026, at Houston, Texas.
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