UNITED STATES DISTRICT CO RT

EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION D£C 2 6 2023

ajore J. Marks,

Plaintiff,

v.

Javitch Block LLC,

Defendant.

Civil Action

CASE NO. l:23-cv-00431-MJT-CLS

PLAINTIFF S RESPONSE TO DEFENDANT’S MOTION TO DISMISS

Plaintiff, Dajore J. Marks, hereby submits this memorandum in opposition to Defendant

Javitch Block LLC's Motion to Dismiss, pu suant to the Fair Debt Collection Practices Act

(FDCPA).

I. INTRODUCTION

The Elements Of A FDCPA Claim

Defendant, Javitch Block LLC, argues that Mr. Marks has failed to state a claim for relief under

the FDCPA. A plaintiff alleges an FDCPA claim by alleging: (1) the plaintiff is a consumer; (2)

the debt involved meets the definition of debt in the FDCPA; (3) the defendant is a debt

collector; and (4) the defendant committed an act prohibited by the FDCPA. Turner v. Cook,

362 F.3d 1219, 1227-28 (9th Cir. 2004); Heejon Ch ng v. U.S. ank, N.A., 250 F. Supp. 3d 658,

680 (D.Haw. 2017).

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The first element of an FDCPA claim is that the plaintiff is a consumer. Heejon Chu g,

250 F. Supp. 3d t 680. A consumer is a person obligated or allegedly obligated to pay a debt. 15

U.S.C. § 1692a(3). Here, Mi . Marks has alleged that he is a consumer because he was allegedly

obligated to pay a debt from a past credit card account. Thus, Mr. Marks has alleged the first

element of an FDCPA claim.

The second element of an FDCPA claim is that the debt involved meets the definition of

debt in the FDCPA. Heejon Chung, 250 F. Supp. 3d at 680. A debt is an obligation or alleged

obligation to pay money from a transaction that is primarily for personal, family, or household

purposes. 15 U.S.C. § 1692a(5). Here, Mi; Marks alleged debt resulted from a personal credit

card.

The third element of an FDCPA claim is that the defendant is a debt collector. Heej n

Chu g, 250 F. Supp. 3d at 680. A debt collector is a person who uses an instrumentality of

interstate commerce to engage in a busi ess in which the principal purpose is the collection of

debts, or regularly attempts to collect debts owed or due to another. 15 U.S.C. § 1692a(6). Mr.

Marks alleges in his complaint that Javitch Block LLC, regularly engages in the practice of debt

collection. Therefore, Mr. Marks has alleged the third element of an FDCPA claim.

The fourth and final element of an FDCPA claim is that the defendant committed an act

prohibited by the FDCPA. Heejo Chu g, 250 F. Supp. 3d at 680. Among the many ways a debt

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collector can violate the FDCPA, Javitch Block LLC did so by attempting to collect a debt at an

inconvenient place, 15 U.S.C. § 1692c(a)(l).

The FDCPA does not define place but the ordinary meaning of “place is clear. See

“Place, Me riam-WebsterDictionary.

mpaign=sd&utm_medium=serp&um_source=jsonld (last visited December 17,2023) defining

“place as “a building, part of a building, or area occupied as a home. 

Defendant, Javitch Block LLC(“JBL ), continued to communicate with Mr. Marks at a

known inconvenient place, even though he mailed a letter to JBL which informed him that

contacting him via email was the only convenient way to communicate JBL s communication

and collection attempts constitute a violation of 15 U.S.C. § 1692c(a)( 1) of the FDCPA.

Furthermore, this communication and collection atte pt was an invasion of Mr. Marks privacy,

intruding upon his seclusion. This intrusion resulted in Mr. Marks experiencing frustration,

an er, and anxiety. The unwanted communication directed at Mr. Marks exemplify the type of

actions that Congress intended to prohibit when enacting the FDCPA.

The Fair Debt Collection Practices Act ( FDCPA ) has been in existence since 1977 to

prevent abusive practices in the collection of consumer debts. Regulation F was later introduced

to further refine and enforce these practices.

While the FDCPA provides the foundation for consumer protections related to debt

collection, it has so e limitations. For instance, it doesn't include extensive provisions for new

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modes of communication, like email or social media.

Regulation F was introduced by the Consumer Financial Protection Bureau ( CFPB ) as

an updated set of rules that supplement and detail requirements under the FDCPA. It aims to

adapt to changes in the way debtors and collectors communicate brought by technological

advances, and to provide clear rales that would prevent legal ambiguity.

The purpose of Regulation F is not to replace the FDCPA, but to fortify and modernize it.

It provides consumers with more clarity and agency in their interaction with debt collectors, yet

still allowing the collection industry to carry out their operations effectively.

Regulation F § 1006.14 Harassin , Oppressive, or abusive conduct.

(h) Prohibited communication medi (1) In eneral. In connection with the

collection of any debt, a debt collector must not communicate or attempt to co municate

with a person through a medium of communication if the person has requested that the

debt collector not use that medium to communicate with the person.

1692c Communication in connection with debt collection

(a) Communication with the consumer generally

Without the prior consent of the consumer given directly to the debt collector or the

express permission of a court of competent jurisdiction, a debt collector may not

communicate with a consumer in connection with the collection of any debt (1) at any

unusual time or place or a time or place known or which should be known to be

inconvenient to the consumer.

In the absence of knowled e of circumstances to the contrary, a debt collector shall

assume that the convenient time for communicating with a consu er is after 8 o clock

antemeridian and befo e 9 o clock postmeridian, local time at the consumer’s location.

II. ARGUMENTS

A. Misapplication of the TransUnion and Perez Precedents

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The Defendant's reliance on Trans U ion LLC v. Ramirez and its interpretation in Perez v.

McCreary, V selka, Brayy & Allen, PC., is a fundamental misapplication of legal principles

when applied to the present case under 15 U.S.C. § 1692c(a)(1) of the FDCPA. This

misapplication is not merely an academic error but a substantive one that misdirects the focus

from the actual legal issue at hand the protection of consumer privacy against intrusive debt

collection practices.

1. Contextual Difference in Legal Issues: TransUnion LLC v. Ra irez primarily

dealt with the issue of credit reporting and its implications for privacy and economic

interests. The Supreme Court's analysis in TransU ion was centered on the concrete

injury requirement for Article Ill standing in the context of a statutory violation involving

credit reporting. This context is markedly different from the issue at hand, which involves

direct communication with consumers in debt collection under § 1692c(a)( 1). The

privacy concerns in § 1692c(a)(T) are not analogous to the credit reporting issues in

TransUnion, making the Defendant's reliance on this case misplaced and inapplicable.

2. Nature of Injury in Tra sUnion vs. $ 1692c(aXD: In TransU ion, the Court

was concerned ith whether the plaintiffs had suffered a concrete injury as a result of

procedural violations in credit reporting. The nature of injury contemplated in

TransU ion was tied to the accuracy of credit information and its potential impact on

consumers' economic welfare. In contrast, § 1692c(a)( 1) addresses the concrete injury of

privacy intrusion, which is inherently different. This provision protects consumers from

the invasion of their personal space and peace, a type of injury that is immediate and

tangible, unlike the more abstract harm considered in Trans nion.

3. Misinter retation in Perez', In Perez, the Fifth Circuit applied the principles of

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TrcmslMon to claims under the FDCPA, focusing on procedural violations. However, the

Defendant's application of Perez to the present case overlooks the substantive nature of

the violation under § 1692c(a)( 1). The Perez decision does not negate the fact that a

violation of § 1692c(a)(l) can constitute a concrete injury, as it directly impacts the

consumer's privacy and tranquility.

4. Ina plicability of TransUnion's Concrete Injury Analysis: The Defendant's

argument erroneously applies TransU ion's concrete injury analysis to a situation where

the injury is inherently concrete. The receipt of unwanted communications at

inconvenient times or places, as prohibited by § 1692c(a)( 1), is a direct intrusion into the

consumer's personal life. This intrusion, unlike the procedural violations discussed in

TransUnion does not require additional proof to establish its concrete nature.

B. Misrepresentation of Ap licable Statutory Provisions

The Defendant s erroneous citation of 15 U.S.C. § 1692e in the context of the present case,

which fundamentally concerns 15 U.S.C. § 1692c(a)( 1), demonst ates a substantial

deviation from the pertinent issues at hand and a misinterpretation of the applicable legal

provisions.

1 • Misali nment with Core Alle ations: The citation of 15 U.S.C. § 1692e, which

pertains to "false, deceptive, or misleading representation or means in connection with

the collection of any debt," starkly misaligns with the co e allegations of this case. The

Plaintiffs claims are rooted in the protections afforded by 15 U.S.C. § 1692c(a)(l), which

specificall add esses the timing and nature of communications in debt collection and

aims to safeguard consumers from intrusions into their personal and private lives.

2. Concrete Nature of Privacy Intrusions Under $ 1692c(a)( 1): The nature of the

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injury under § 1692c(a)( 1) is inherently concrete and distinct from the more abstract or

economic harms typically associated with § 1692e. The receipt of unwanted

communications at inconvenient ti es or places constitutes a direct and tangible intrusion

into the consumer's personal life and privacy. This type of injury is immediate and

palpable, reflecting a clear invasion of the personal sanctity that § 1692c(a)( 1) seeks to

Protect.

3 ¦ Ina plicability of TranslJnion's Concrete Injury Analysis to § 1692c(aK 1): The

Defendant's attempt to apply TranslJnion's concrete injury analysis to the concrete

injuries associated with privacy intrusions under § 1692c(a)( 1) is inapplicable and

inappropriate. The direct and personal nature of these intrusions, as experienced by the

Plaintiff, does not require the same type of abstract consideration of harm that was at

issue in TransU io . Instead, the injuries here are of a nature that has long been

reco nized as concrete and actionable within the realm of privacy and personal space

protection.

I. Consumer Privacy Under Section 1692c

Section 1692c specifically addresses communications in connection with the collection of

a debt, prevents third party disclosures of debt collection information, and provides protections

for consumers to stop unwanted communications from debt collectors. As such, section 1692c is

squarely focused on consumer privacy. West v. ('osten, 558 F. Supp. 564, 577 (W.D. Va. 1983)

( the primary purpose of section 1692c is to protect the consumer's privacy and employment ).

Section 1692c(a) limits the kinds of contact debt collectors can have with consumers, thus

preventing debt collectors from intruding upon a consumer s seclusion at inconvenient times or

places, or at a consume s place of employment, or with the consumer directly if the consumer

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hired an attorney to deal with the debt collector. Section 1692c(b) prevents debt collectors from

telling most third parties about the consumer s debt, thus preventing debt collectors from

publicly disclosing private facts about the consu er (yet another subset of invasion of privacy

type torts). And finally, 1692c(a)( 1) specifically gives the consumer the right to inform a debt

collector what times or places are inconvenient to the consumer.

IV. When Addressing Article III Standi g

The Tenth Cir has held “We address standing on a claim-by-claim basis. Santa

Fe All. for Pub. Health & Safety v. City of Sa ta Fe, 993 F.3d 802, 813 (10th Cir. 2021).

V. Standing

To have standing, a plaintiff must show that she (1) suffered an injury in fact, (2) that is

fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed

by a favorable judicial decision. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citations

omitted). Injury in fact, the first of the three elements, requires that a plaintiff has suffered an

invasion of a legally protected interest that is ‘concrete and particularized and ‘actual or

imminent, not conjectural or hypothetical. Id. at 1548 (quoting Lujan v. Defs. of Wildlife, 504

U.S. 555, 560 (1992)). Courts have focused on analysis on the concrete requirement, which

requires that an injury be real rather than abstract. Id. (citation omitted). Simply put, [n]o

concrete harm, no standing. Transllnion L C, 141 S. Ct. at 2200.

Plaintiff alleged that Defendant, Javitch Block LLC, violated § 1692c(a)( 1) by contacting

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him via ail when he specifically requested in wilting to contact hi by email only and left his

email address for the debt collector to communicate. Relevant to standing, he alleged that

Defendant Javitch Block LLC, contacted via mail which was unwanted and intruded on his

privacy and caused him to suffer intangible harms, which Con ress has made legally cognizable

in passing the FDCPA. Therefore, Plaintiff has sufficiently alleged concrete harm.

As a general principle, [cjoncrete is not. . . necessarily synonymous with tangible. 

Spokeo, Inc., 136 S. Ct. at 1549. Though conc eteness may be more easily satisfied for tangible

injuries like physical or monetary harms, intangible injuries, like the ones Mr. Marks alleges,

may nevertheless be concrete for standing purposes.

In determining whether an intangible harm is sufficiently concrete to constitute an injury

in fact, we look to both history and to the judgment of Congress. The Court has explained:

history and tradition offer a meaningful guide to the types of cases that Article III empowers

federal courts to consider. TranslJnio LLC, 141 S. Ct. at 2204 (citations omitted). And

“because Congress is well positioned to identify intangible harms that meet minimum Article III

requirements, its judgment is . . . instructive and important.” Spokeo, Inc., 136 S. Ct. at 1549.

Accordingly, we “afford due respect to Congress s decision to impose a statutory prohibition or

obligation on a defendant, and to grant a plaintiff a cause of action to sue over the defendant’s

violation of that statutory prohibition or obligation. Tra slJ io LLC, 141 S. Ct. at 2204

(citation omitted).

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Looking at history, courts have considered whether an alleged intangible harm has a

close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit

in English or American courts. Spokeo, Inc., 136 S. Ct. at 1549 (citation omitted). Stated

another way, this inquiry asks whethe plaintiffs have identified a close historical or

common-law analogue for their asserted injury.” Tra slI io LLC, 141 S. Ct. at 2204. At

common law, courts readily recognized a concrete injury arising from the tort of intrusion upon

seclusion a tort protecting against defendants who intrude into the private solitude of another.

See Restatement (Second) of Torts § 652A(2)(a)( 1977); see also id. § 652B. And the Supreme

Court recently cited “intrusion upon seclusion as a harm traditionally recognized as providing

a basis for [a] lawsuit in American courts.” TransUnio LLC, 141 S. Ct. at 2204 (citing

Gadelhak v. AT&TSe vs., Inc., 950 F.3d 458, 462 (7th Cir. 2020) (Barrett, J.), cert denied, No.

20-209,2021 WL 1521010 (U.S. Apr. 19, 2021)).

This tort imposes liability for intrusions on a plaintiff s privacy, such as when the

defendant demands payment of a debt by sending a letter after being told not to contact Plaintiff

by mail, only via email, “with such persistence and frequency as to amount to a course of

hounding the plaintiff. Restatement, supra, § 652B cmt. d. Mr. Marks suffered a similar harm

when Defendant, Javitch Block LLC, made an unwanted contact in an attempt to collect a debt

after being told not to contact him by mail and to contact him via email only about a debt, despite

him having sent written notice on the preferred communication Defendant Javitch Block LLC,

disregarded the request. Thus, Mr. Marks suffered an injury bearing a “close relationship to the

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tort of intrusio upon seclusion. See Gadelhak, 950 F.3d at 462-63 (detennining that a

consumer s receipt of a few unwanted text messages under the Telephone Consumer Protection

Act is a modern relative of the tort of intrusion upon seclusion a tort with long common law

roots”); see also DiNaple v. MRS BRO, L C, 34 F.3d 275, 279-80 (3d Cir. 2019) determining

that a debtor had standing after a debt collector disclosed her account number in violation of the

FDCPA because it implicate[d] core privacy concerns, which were closely related to harm

that has traditionally been regarded as providing a basis for a lawsuit” (citation omitted)).

Despite Defendant Javitch Block LLC s contentions that a single letter causes no actual

damages, we find Gadelh k instructive. That court rejected the argument that because a few text

messages failed to rise to the level of an actionable intrusion-upon-seclusion tort, the resulting

harm amounted to an abstract injury only:

[WJhen Spokeo instructs us to analogize to harms recognized by the common law, we are

meant to look for a close relationship in kind, not degree. In other words, while the

common law offers guidance, it does not stake out the limits of Congress s power to

identify harms deserving a remedy. Congress’s power is greater than that: it may elevate

to the status of legally cognizable injuries concrete, de facto injuries that were previously

inadequate in law. A few unwanted automated text messages may be too minor an

annoyance to be actionable at common law. But such te ts nevertheless pose the same

kind of harm that common law courts recognize a concrete harm that Congress has

chosen to make legally cognizable.

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Id. at 462-63 (brackets, internal quotation marks, citations, and footnote omitted). So too here.

Though a single letter may not intrude to the degree required at common law, that phone call and

text poses the same kind of harm recognized at common law an unwanted intrusion into a

plaintiff s life upsetting him to file this action. See TranslJnion L C, 141 S. Ct. at 2204

Spoken does not require an exact duplicate in American history and tradition. ). Unlike here,

the Court in TransUnion held that certain plaintiffs failed to allege a concrete harm. 141 S. Ct. at

2209-10. But that case differs markedly from ours. In considerin the Fai Credit Repo ting Act,

the TransU ion Court noted that a company s maintaining incorrect information in its database,

absent dissemination to a third party, failed to create a harm bearing a close relationship to the

common-law tort of defa ation. See id. Without the necessary defamation component that the

tortious words were published, this harm differed in kind. See id. at 2209 (citation omitted). That

analysis doesn’t control our case because, as just explained, Lupia v Medicredit 8 F.4th

1184(1 Oth Cir. 2021) has alleged the necessary components for a common-law

intrusion-upon-seclusion tort.

Next, Courts have considered the “judgment of Congress. Spoken, Inc., 136 S. Ct. at

1549. In enacting the FDCPA, Congress recognized that abusive debt-collection practices may

intrude on another’s privacy interests. See 15 U.S.C. § 1692(a) (“Abusive debt collection

practices contribute to . . . invasions of individual privacy. ); see also Cohen v. Rosicki, Rosicki

Assocs., P.C., 897 F.3d 75, 81 (2d Cir. 2018) ( Congress enacted the FDCPA to protect against

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the abusive debt collection practices likely to disrupt a debtor s life. (inte al quotation marks

and citation omitted)). Mr. Marks complains that his receipt of an unwanted letter did just that.

That isn t to say that Congress may simply enact an injury into existence, using its lawmaking

power to transform somethin that is not remotely harmful into something that is. Tranxllnion

LLC, 141 S. Ct. at 2205 (citations omitted); see also Spoken, Inc., 136 S. Ct. at 1550 ( [Plaintiff]

cannot satisfy the demands of Article III by alleging a bare procedural violation”). We cannot

treat an injury as concrete’ for Article III purposes based only on Congress’s say-so. 

Tra sU io LLC, 141 S. Ct. at 2205 (citations omitted). But we needn’t rely on Congress s

“say-so alone. As noted, Mr. Marks claims have roots in long-standing common-law

tradition. Therefore, Mr. Marks has sufficiently alleged that he suffered a concrete injury.

In the recent Tenth Circuit case Lupia v Medicredil, 8 F.4th 1184 (10th Cir. 2021) Medicredit

plead that “Plaintiff Lupia failed to plead that Ms. Lupia failed to allege a sufficient injury in her

Complaint. See Appellant’s Supp. Br .at 4 (“[Ms. Lupia’s] Complaint does not allege that the

phone call injured her or invaded her privacy. ). The Court noted, Ms. Lupia alleged in her

Complaint that Medicredit caused her to su fer intangible harms that Congress made legally

cognizable in passing the FDCPA. Appellant’s App. vol. 1 at 7 (citations omitted); see also S .

Utah Wilderness A . v. Palma, 707 F.3d 1143, 1152-53 (10th Cir. 2013) (“[W]e examine the . . .

complaint in assessing a plaintiff’s claims, including the allegations in support of standing. 

(internal quotation marks and citation omitted)). Coupled with Mr. Marks factual allegations

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about the receipt of an unwanted letter allegations suffice. Indeed, Mr. Marks asserted the same

privacy interests.

Finally, Defendant Javitch Block LLC argues that the Seventh Circuit s recent

standing cases apply (citing Pennell v. Gloh. Tr. Mgmt., L , 990 F.3d 1041 (7th Cir. 2021). That

case predates the Supreme Court s decision in TransU ion in which the Court clarified the

Spokeo standing requirements, including that the tort of intrusion upon seclusion is recognized as

an intangible harm providing a basis for a lawsuit in American courts. See TransUnion LLC, 141

S. Ct. at 2204-14. Pen ell analyzes 15 U.S.C. § 1692c(c), it dealt with a plaintiff’s complaints of

stress and confusion not an invasion of privacy. 990 F.3d at 1045. Likewise, in Lupia v

Medic edit, 8 F.4th 1184 (10th Cir. 2021) determine that Ms. Lupia has satisfied the

injury-in-fact requirement.

I. K own or Which Should Be Known Standard

Section 1692c(a)(l) of the FDCPA provides that a collector cannot contact the consumer

at a time or place that is known or should be known as inconvenient. This clearly means that

once a debt collector receives a request to cease communication at specified inconvenient times

or places, whether the request is made orally or in writing, the debt collector then knows the time

or place is inconvenient and must honor that request. Section 1692c(a) does not impose any

writing requirement on the consumer. . . . Thus, Plaintiff specifically told Defendant Javitch

Block LLC in writing not to contact him in the mail and only by email; therefore. Defendant

Javitch Block LLC., knew other methods were inconvenient.

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VII. Verification of Debt I692g(b) Argument

In this case, Plaintiff does not assert any claim under 15 U.S.C. § 1692g(b).

Plaintiff s cause of action herein is solely under 15 U.S.C. § 1692c(a)(l). The alleged debt in

question has been past due and reporting since 2022and any of the 15 U.S.C. § 1692g(b) rights

have passed. Just to be clear Plaintiff has not alleged Defendant failed to cease within the first 30

days of receiving Defendant dunning letter nor that validation or verification was inadequate

pursuant to 15 U.S.C. § 1692g(b).

VHI. Conclusion

In summary, the Defendant's reliance on 15 U.S.C. § 1692e and the misapplication of the

TrunsUnion and Perez precedents represent a fundamental misunderstanding or

misrepresentation of the legal issues central to this case. The Plaintiffs claims are squarely

grounded in the protections against privacy intrusions as articulated in 15 U.S.C. § 1692c(a)( 1),

and the nature of the injuries alleged a e inherently concrete and distinct from the concerns

addressed by § 1692e. As such, the Defendant's Motion to Dismiss, predicated on these

misrepresentations, fails to grasp the substantive legal and factual underpinnings of the Plaintiff's

claims and should be denied. The court must recognize the specificity of the Plaintiffs claims

under § 1692c(a)( 1) and the concrete nature of the injuries suffered, which are directly addressed

by the statutory provision and supported by the le islative intent behind the FDCPA.

The allegations of unwanted intrusion, leading to frustration, anxiety, and privacy

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invasion, are grounded in both historical recognition and Congr essional judgment through the

FDCPA. These are not abstract grievances but concrete harms as envisaged by legal doctrine and

supported by seminal case law. Therefore, he has Article III standing to pursue his claims.

WHEREFORE, Plaintiff requests the Court denies Defendant s Motion to Dismiss.

Respectfully submitted:

Dated: ~o?3

Dajore J Marks

3760 Broadmoor Drive

Beaumont, TX 77707

Dmarks2011 grad@gmail.com

CERTIFICATE OF SERVICE

I certify that a true 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.com

Attorneys for Defendant

Javitch Block LLC

Dated: / o< - 

Dajore J Marks

" I I 

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