JAN 0 2 202 

Civil Action

v.

CASE NO. l:23-cv-00431-M.JT-CLS

BY

DEPUTY,

UNITED STATES DISTRICT CO RT

EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

Javitch Block LLC,

Defendant.

D jore J. Marks,

Plaintiff,

RESPONSE IN OPPOSITION TO DEFENDANT JAVITC BLOCK LLC

MOTION TO DISMISS

INTRODUCTION

Plaintiff DAJORE J. MARKS, hereby submits his response in opposition to Defendant

Javitch Block LLC s (hereinafter Javitch ) Motion to Dis iss. Plaintiff contends that his

complaint has sufficiently stated a claim under 15 U.S.C. § 1692c(a)( 1) and that Javitch s

arguments regarding 15 U.S.C. § 1692g(b) do not warrant dis issal of the action. Plaintiff

respectfully requests that the Court deny Javitch s Motion to Dismiss for the following reasons:

Plaintiff DAJORE J. MARKS, in response to Defendant Javitch Block LLC’s assertion of

claim abandonment, hereby sub its a detailed rebuttal. This rebuttal not only addresses the

specific points raised by the defendant but also clarifies the plaintiffs steadfast position and

reinforces the validity of his claim under the Fair Debt Collection Practices Act (FDCPA).

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I. ARGUMENT

A. Plaintiff Has Sufficiently Stated a Claim Under 15 U.S.C. § 1692c(a)(l).

The Plaintiff, DAJORE J. MARKS, has cogently articulated a clai under 15 U.S.C. §

1692c(a)(l), alleging a clear and actionable violation by Defendant Javitch Block LLC. This

statute is a cornerstone of the Fair Debt Collection Practices Act (FDCPA), designed to protect

consumers f om invasive and abusive debt collection practices. It specifically prohibits

com unication at any unusual time or place or at a time or place known or which should be

known to be inconvenient to the consumer. The Plaintiffs explicit notification to Javitch that

email was the sole convenient ethod of communication was a clear directive under this statute,

establishing a legally recognized boundary for communication.

The Defendant's decision to communicate via traditional mail, despite this explicit

directive, was not merely an oversight but a willful disregard for the Plaintiffs ights under the

FDCPA. This act goes beyond a procedural misstep; it is a direct violation of the statute's

provision designed to protect consumers fro the very type of intrusive behavior exhibited by

Javitch. The communication was not a benign or neutral action; it was a deliberate attempt to

collect a debt, an ctivity squarely within the ambit of the FDCPA's regulatory framework. By

choosin to ignore the Plaintiffs specified co munication preference, Javitch has engaged in the

type of conduct that the FDCPA explicitly seeks to prevent.

B. Reaffirmation of Claim's Validity: The Plaintiff categorically denies abandoning

his claim. The focused nature of the plaintiffs response to the motion to dismiss was a strategic

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decision to concentrate on the substantive aspects of his argument under 15 U.S.C. §

1692c(a)(l). This approach eflects a p ioritization of critical issues and in no way signifies an

abandonment of the claim.

C. Addressing 15 U.S.C. § 1692g(b): The Plaintiff ackno ledges the Defendant's

reference to 15 U.S.C. § 1692g(b) but asserts that compliance with this provision does not permit

the violation of other FDCPA protections. The Plaintiffs explicit request for email

com unication was a legitimate exercise of his ights to specify a convenient communication

method, and the Defendant's decision to use mail was a direct contravention of these rights.

D. Addressing 12 C.F.R. § 1006.6(b)(1) and § 1006.14(h)(2): The Plaintiff disputes

the Defendant's interpretation of these regulations as justifying their actions. The exceptions

provided in these regulations are not blanket permissions to ignore consumer preferences. The

Plaintiffs stipulation for email communication was a clear assertion of his rights under the

FDCPA, which the Defendant unjustly ignored.

E. Legal Precedent and Context: The Plaintiff distinguishes his case from the precedents

cited by the Defendant. The strategic focus of the Plaintiffs response should not be misconstrued

as bandonment. Unlike the cases cited, the Plaintiff has actively engaged with the core issues of

his claim, demonstrating a commitment to seeking redress for.

F. On the Use of the Three Letters as Evidence Defendant's Point: Javitch asserts that the

th ee letters it attached are central to Marks' clai s and are undisputed, suggesting they

should be considered when ruling on the motion.

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Plaintiffs Response: While the Plaintiff acknowledges that the letters arc part of the

factual back round of the case, their existence does not negate the Plaintiff's claims. The

content and the context in which these co unications were sent are crucial. The

Plaintiffs specific instructions for com unication via email were a clear exercise of his

rights under the FDCPA to avoid inconvenient and ha assing debt collection practices.

The Defendant's decision to co municate via ail directly contravened these rights and

the spirit of the FDCPA.

G. On Article III Standing Defendant's Point: Javitch argues that Marks lacks Article III

standing due to a lack of causal connection between the alleged injury and the conduct

complained of.

Plaintiffs Response: The Plaintiff contends that a direct causal link exists between the

defendant's actions and the alleged injuries. The unauthorized and unwanted ail

communication, contrary to the Plaintiffs explicit instructions, directly led to the claimed

mental and e otional distress and invasion of personal privacy. This distress is a tangible

injury recognized under the FDCPA, and thus, the plaintiff has adequately demonstrated

st nding.

H. Response to Defendant's Interpretation of "Place" Defendant's Assertion: Javitch

argues that Marks' October 17 letter did not specify an inconvenient "place" as required

by 15 U.S.C. § 1692c(a)( 1) and suggests that the term "place" does not encompass the

Plaintiffs preference for email co munication.

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Plaintiffs Counterargument: The Plaintiff contends that the Defendant's interpretation of

"place" is overly narrow and fails to ccount for the realities of odern communication.

The term "place" in the context of the FDCPA should not be restricted to physical

locations but should also encompass digital spaces where consumers receive

communications. This interpretation is cr cial in an era where digital communication is

ubiquitous and often the primary means of contact fo many individuals.

I. Modern Interpretation of "Place": The Plaintiff asserts that the odern interpretation of

"place" should reasonably extend to include digital mediums such as email. In today's digital age,

an individual's email inbox is as much "place" where they receive communications as their

physical mailbox. This is especially true when the consumer has explicitly stated a preference for

receiving communications through this mediu .

a. Consu er Protection in the Digital Age: The FDCPA is designed to protect

consumers from abusive debt collection practices, and this protection should logically

extend to all forms of co munication that can reach and impact consumers. Ignoring the

Plaintiffs specified communic tion preference and sendin a letter to a physical address

when the Plaintiff has clearly stated a preference for email co munication is akin to

calling a consumer at an inconvenient time or place. It disregards the consumer's rights

and the intent of the FDCPA to protect against such intrusions.

b. Impact of Misinterpretation: The Defendant's narrow interpretation of "place"

undermines the protective intent of the FDCPA and fails to protect consu ers from the

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very abuses the Act is designed to prevent. By adhering to an outdated concept of

"place," the Defendant is not only disregarding the plaintiffs clearly stated preferences

but also the broader consumer rights at stake.

c. Supporting Legal Precedents: While specific cases directly addressing the

interpretation of "place" in the context of digital co munication under the FDCPA ight

be limited, the Plaintiff urges the court to consider the spirit of the FDCPA and how

courts have adapted other laws to account for modern com unication technologies. The

court's recognition of email as a "place" for the purposes of the FDCPA would be in line

with the Act's pur ose and the evolution of consumer and communication landscapes.

J. On the Requirement to Mail Verification Response Defend nt's Point: Javitch claims that

15 U.S.C. § 1692g(b) required them to mail the verification response.

Plaintiff's Response: The Plaintiff acknowledges the requirement under §1692g(b) but

emphasizes that this does not override the consumer's rights under §1692c(a)(l). The Plaintiffs

explicit instruction for email communication was a legitimate stipulation to minimize

inconvenience and harassment. The Defendant's choice to use mail directly contravened these

rights and the protective intent of the FDCPA.

K. On the Nature of the October 30 Letter Defendant's Point: Javitch contends that the

October 30 letter was not collection attempt but merely provided the requested verification.

Plaintiffs Response: Whether or not the letter was a collection attempt is irrelevant to the

violation of the plaintiffs specified co munication preferences. The unauthorized mail

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communication itself, contrary to explicit instructions, constitutes a breach of the FDCPA's

provisions designed to protect consumers from inconvenient and harassing practices.

L. Response to Claim of Abandonment.

Defendant's Assertion: The defendant cites Black v. N. Panola Sell. Dist. and Terry Black's

Barbeque, LLC v. Sate Auto. Mut. Ins. Co. to argue that failure to address arguments in a motion

to dismiss constitutes abandonment of the claim.

Plaintiffs Counterargument: The Plaintiff asserts that his response has been strategic and

focused, rather than neglectful. The Plaintiff has chosen to concentrate on the most substantive

and co pelling aspects of his argument, which does not equate to abandonment but rather

reflects a prioritization of arguments that directly address the heart of the claim under 15 U.S.C.

§ 1692c(a)(l). The cases cited by the Defendant are distinguishable from the current situation, as

the Plaintiff here has actively en aged with the core issues of his claim, demonstrating a

commitment to seeking redress for the alleged violations.

M. Response to 15 U.S.C. § 1692g(b) and 12 C.F.R. § 1006.6(b)(1) U 2,5 12 C.F.R. §

1006.14(h)(2)((ii) and (hi).

Defendant's Assertion: Javitch argues that it was entitled to mail the verification response

pursuant to 15 U.S.C. § 1692g(b) and the Official Interpretation of 12 C.F.R. § 1006.6(b)(1) 2,5

12 C.F.R. § 1006.14(h)(2)((ii) and (iii).

Plaintiffs Counte argument: The Plaintiff acknowledges the statutory requirements under 15

U.S.C. § 1692g(b) but emphasizes that these do not override the consumer's rights under 15

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U.S.C. § 1692c(a)(l). The Plaintiffs explicit instruction for email co munication was a

legitimate sti ulation to minimize inconvenience and harassment. The exceptions provided in 12

C.F.R. § 1006.14(h)(2) are not blanket permissions to ignore consumer preferences. The

Plaintiffs clear and unequivocal specification of email as the only convenient medium was a

directive aimed at avoiding undue stress and inconvenience. The Defendant's decision to use an

alternate medium was not a benign choice but a significant deviation from the Plaintiffs explicit

instructions and the protective framework of the FDCPA.

N. On the Nature of Injury and Standing Further Elaboration: The Plaintiff wishes to further

elaborate on the causal connection between the Defendant's actions and the alleged injuries. The

unauthorized and unwanted communication from the defendant, specifically the mailing of the

October 30 verification response, contrary to the Plaintiffs explicit instructions, has had a real

and substantial i pact on the Plaintiffs ental and e otional well-being. This impact is not

hypothetical or speculative but tangible and deeply felt.

The Plaintiff experienced specific instances of distress directly attributable to the

defendant's actions. For instance, upon receivin the unsolicited mail, the Plaintiff suf ered from

heightened anxiety, disruption of his daily routine, and a pervasive sense of being violated in his

personal space. These are not mere inconveniences but serious intrusions into the plaintiffs

mental and e otional sanctuary, leading to sleepless nights, increased stress, and a lingering

sense of helplessness and frustration.

Such distress is precisely the type of injury that the FDCPA aims to prevent. The Act is

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not merely a set of procedural guidelines but a shield against the very real harm that can result

from abusive debt collection practices. By ignoring the Plaintiffs clearly stated communication

preferences, the Defendant has not only violated specific provisions of the FDCPA but has also

inflicted the kind of harm the Act is designed to protect against.

The tangible nature of the harm suffered by the plaintiff, directly caused by the

Defendant's actions clearly establish the Plaintiffs standing to bring this action. The injuries

arc conc ete, particularized, and actual, not conjectural or hypothetical. Therefore, the Plaintiff

respectfully submits that this Honorable Court should recognize the severity of the harm inflicted

and the clear causal link to the defendant's actions, thereby affirming the plaintiffs standing to

pursue this claim.

IL CONCLUSION

In conclusion, the Plaintiff, DAJORE J. MARKS, respectfully i plores this Honorable

Court to consider the detailed rebuttal provided herein and to deny the Defendant's motion to

dismiss. The Plaintiffs claims are not only well-founded under the Fair Debt Collection Practices

Act (FDCPA) but are also deeply rooted in the fundamental principles of consumer protection

and the right to privacy.

On the Interpretation of "Place" in 15 U.S.C. § 1692c(a)(l): The Plaintiff urges the Court

to adopt a odern and inclusive interpretation of "place" within the context of the FDCPA. As

our society embraces digital co munication as an integral part of d ily life, it is i perative that

our legal understanding evolves accordingly. The Plaintiffs specified preference for e ail

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communication as the only convenient "place" for receiving debt-related co unications is a

testament to the modern consumer's digital reality. Ignoring this reality not only undermines the

legislative intent of the FDCPA but also leave consumers vulnerable in the very spaces where

they arc most active and most in need of protection.

On the Violation of 15 U.S.C. § 1692c(a)(l): The Defendant's actions, as alleged,

constitute a clear and direct violation of 15 U.S.C. § 1692c(a)(l). By disregarding the Plaintiffs

explicit com unication preferences, the Defendant has not only intruded upon the Plaintiffs

digital "place" of privacy but has also engaged in the type of abusive practice the FDCPA

explicitly prohibits. This violation is not a mere technicality but a si nificant breach that has

resulted in real harm to the Pl intiff.

On the Nature and Extent of Damages: The Plaintiff has suffered tangible and significant

ha m as a direct result of the Defendant's actions. The unauthorized and unwanted mail

co munication has led to heightened anxiety, emotional distress, and a pervasive sense of

invasion of privacy. These injuries arc not abstract but arc real, deeply felt, and continuous. The

distress experienced by the plaintiff is precisely the type of injury the FDCPA aims to prevent,

and it is only just th t the Plaintiff be afforded the opportunity to seek redress for these

violations.

The Plaintiff, therefore, respectfully requests that this Honorable Court recognize the

severity of the Defendant's actions and the legitimacy of the Plaintiffs claims. By denying the

Defendant's motion to dismiss, the Court will affirm the protective intent of the FDCPA and

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ensure that the Plaintiff has the full and fair opportunity to demonstrate the alleged violations and

obtain the relief as provided by the FDCPA.

Respectfully sub itted:

Dated: 

Dajore J Marks

3760 Broadmoor Drive

Beaumont, TX 77707

Dmarks201 lgrad@g ail.com

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CERTIFIC TE OF SERVICE

I certify that a tr e copy of the foregoing was served via USPS mail to:

Michael D. Slodov, OH SCR #0051678

JAVITCH BLOCK LLC

1100 Superior Ave., 19th Floor

Cleveland, OH 44114

(866) 881-2400 ext. 2781

Direct (440) 318-1073

(fax) (216)685-3039

mslodov@jbllc.co 

Attorneys for Defendant

Javitch Block LLC

Dated: / 

Dajore J arks

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