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Can I Send Repossession Notices by Email?

TIADA's compliance consultation service recently received the following question from a dealer “What is your opinion on sending repossession notices by email? Our customers move so often we get a lot of letters returned to us. What do you think, are we safe to try this? 

Sending Repossession Notices by Email

There is no clear guidance under the law as to if emails are acceptable for sending cure letters or repossession notices. To figure out what constitutes sending a notice one must look at how Texas law defines “send” as it relates to automobile loans. Texas law states the following:   


BUSINESS AND COMMERCE CODE
 

TITLE 1. UNIFORM COMMERCIAL CODE 

CHAPTER 9. SECURED TRANSACTIONS 

SUBCHAPTER A. SHORT TITLE, DEFINITIONS, AND GENERAL CONCEPTS 

Sec. 9.102.  DEFINITIONS AND INDEX OF DEFINITIONS.  (a)  In this chapter: 


* * *
 


(75)  "Send," in connection with a record or notification, means:
 


(A)  to deposit in the mail, deliver for transmission, or transmit by any other usual means of communication, with postage or cost of transmission provided for, addressed to any address reasonable under the circumstances; or
 


(B)  to cause the record or notification to be received within the time that it would have been received if properly sent under Paragraph (A).
 


Although under Texas law you are allowed to send a notice by regular mail, 
the law is not as clear with email. Despite being allowed to send by regular mail, TIADA has always recommended dealers send notices by certified mail because the green postal receipt card eliminates most debtor challenges to the adequacy of how notice was sent. At first glance, it seems email would give the same type of record that makes certified mail popular. However, TIADA does not believe an email would be as convincing in court. First, there are too many events and instances that can prevent email from reaching the recipient, such as spam filters. Also, if the email is deleted, there would be no proof of notice. You might be able to make sending email work if you have proof that the email was sent, and proof the recipient read the email. Proof of reading could be a return receipt or a response to the email, but overall, you are best off not using email as it creates litigation uncertainty should you end up in court.
 

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