Topic: Afni, Inc

[Imaputz-85a]

Yes, the CA would be "guilty" of a violation (continued collections if they failed to verify) IF it can be shown that the effective date of delivery and the date the consumer could have been available to receive the missive was within the period allotted. 

You are changing the scenario to justify your answer.

[Rottweiler]

No, I am not.

To review:

1.) The user we are now dealing with--WallStMonkey-- got a collection letter which was dated much earlier than its own postmark date.

2.) They were out of town when the letter was delivered to the mailbox on an unknown and unprovable date of delivery.

3.) They responded as soon as the letter was in hand.

4.) The CA is now claiming that the DV was "untimely" and therefore they are not obligated to respond or cease collection activities.

Now is this user up a crik'?  IMHO, they are not:

1.)  The CA CAN argue "common law mailbox rule"--a rebuttable presumption--in this case.  However, they would need to show that their procedures were set up to reasonably avoid error (a test that must be met to allow the common-law mailbox rule to stand).  The CA is already on somewhat shaky ground since the postmark date is so much later than the date of mailing.  "Bona-fide error"?  A judge might not think so.

2.)  Since there is no certificate or certification as to the date of physical delivery to the OP's mailbox, the actual date of deposit in such receptacle at the user's end cannot be proven.  Keep in mind that the postmark date only indicates when the letter was entered into the system at the USPS and that any number of reasons could delay the ultimate delivery of the letter through no fault of either the CA or WSM and would, therefore, "toll" the "SOL" for a timely DV until it actually got to the other end no matter how long it actually took.

Even if WSM could have been presumed to have taken the letter in hand the day it was dropped in his mail receptacle and therefore the fact they were absent was their tough luck? 

Weak argument at best: 

The mere fact the letter was delivered at some point after it was mailed cannot establish that the letter was simply sitting there, being ignored, for a longer period than the presumptive mailing period in existing case law.  After all, even if we overlook the fact that the individual was out-of-town (the reason for his being absent is irrelevant) the mail could have been delayed in transit at some point and would have been so even if they were at their "home base" during this period. 

The actual physical delivery therefore has to be presumed to be the day our user took the letter in hand.  In turn, the presumption that the SOL for a timely validation request began the day they set their paws on that letter is a reasonable one.

If you argue that "Mahon" says differently and that case law supports this decision and therefore the CA cannot be considered in violation if they refuse to verify and continue to collect?  Yes, but the situation here is NOT "on all fours" with "Mahon" (lawyer slang for a case that matches yours point-by-point).  Remember that "Mahon" involved a case where several dunning letters were sent over a long period of time to a known address and these missives were simply ignored.   The prompt DV once they got the letter in hand--a DV for which it can be proven that it was mailed and when AND the date it was  received  by the CA--automatically distinguishes their situation from that in "Mahon" and makes their case against the CA much stronger should it get to litigation.

[Rottweiler]

Now, to return to the thread starter's situation (a different user): 

The CA could argue "bona-fide error" and "common-law mailbox rule" in this particular case and prevail.  The reason is that although the address proved to be outdated, the OP DID live there at the time the original account was active AND the address apparently was not updated by the OP as they were required to do per contract. 

There is nothing in the FDCPA that requires a CA to do an in-depth check of every bit of information in their files at the time of the initial mailing; they can reasonably presume the last address on file is the correct one until they are informed otherwise.  It's up to the consumer to make sure the mail is redirected to them and to update their location information with every creditor every time they move as long as their file has not been closed.

[Imaputz-85a]

1.) The user we are now dealing with--WallStMonkey-- got a collection letter which was dated much earlier than its own postmark date.

There is no indication that the postmark date was out of sync with the letter date. The poster did not say that.

2.) They were out of town when the letter was delivered to the mailbox on an unknown and unprovable date of delivery.

Not the CA's problem. As soon as they sent the letter, and it was not returned undeliverable, they fulfilled their obligation.

3.) They responded as soon as the letter was in hand.

So if they were home but chose not to check their mailbox for 6 weeks, would that be an equally valid cause of action?

4.) The CA is now claiming that the DV was "untimely" and therefore they are not obligated to respond or cease collection activities.

And they are correct. Their obligation is limited to reporting the debt as disputed, which they have done.

1.)  The CA CAN argue "common law mailbox rule"--a rebuttable presumption--in this case.  However, they would need to show that their procedures were set up to reasonably avoid error (a test that must be met to allow the common-law mailbox rule to stand). 

It is highly likely that AFNI uses a letter service which documents sending dates and mail returns.

2.)  Since there is no certificate or certification as to the date of physical delivery to the OP's mailbox, the actual date of deposit in such receptacle at the user's end cannot be proven.  Keep in mind that the postmark date only indicates when the letter was entered into the system at the USPS and that any number of reasons could delay the ultimate delivery of the letter through no fault of either the CA or WSM and would, therefore, "toll" the "SOL" for a timely DV until it actually got to the other end no matter how long it actually took.

You are right. Why have laws anyway? They are so inconvenient when trying to bend the facts to one's benefit.

Even if WSM could have been presumed to have taken the letter in hand the day it was dropped in his mail receptacle and therefore the fact they were absent was their tough luck? 

Well, yes. Since when is it the CA's responsibility (or any creditor, for that matter) that a recipient be home and available to receive mail regarding their account? If the debtor was to be gone for an extended period of time (in this case, apparently 6 weeks,) it would not be unreasonable to expect that they would be responsible for forwarding the  mail or having a trusted surrogate pick it up on their behalf.

The mere fact the letter was delivered at some point after it was mailed cannot establish that the letter was simply sitting there, being ignored, for a longer period than the presumptive mailing period in existing case law.  After all, even if we overlook the fact that the individual was out-of-town (the reason for his being absent is irrelevant) the mail could have been delayed in transit at some point and would have been so even if they were at their "home base" during this period. 

Again, the poster did not indicate that the mail was delayed. Only that he was not there when it "should" have arrived.

The actual physical delivery therefore has to be presumed to be the day our user took the letter in hand.  In turn, the presumption that the SOL for a timely validation request began the day they set their paws on that letter is a reasonable one.

Bunk. Again, show me ANY caselaw that extends the DV window more than a few days past 30, under any circumstance.

This topic is made up of wishful thinking. Take it to court, and you'll be paying the debt plus the CA's attorney fees.

[usofa]

lets find a close analogy....

I am suing Rotty for 1 zillion dollars in damages. I am using small claims court, since in my state the limit is 1.5 zillion dollars for small claims court.  I go to the court house and file my peition On December 12, 2007. The clerk prepares the summons and sends it off to Rotty certified mail. Rotty hits it for a round the world trip to celebrate the latest CA paying off. 

The summons gives 20 days file an answer, but Rotty is in Europe until January 31, 2008.  Rottie gets home, opens the envelope and runs to the court house to file the answer. 

Can I just get a default judgment against her and start spending the zillion dollars?

No, Rotty has 20 days from the receipt of the summons to answer and even if i had a judge that gave me a default on January 15, Rotty could get the judgment set aside.

Same thing here. You have 30 days to DV after you receive the notice. If OP did not receive the notice until end of January, she can still DV but better be able to show where she was until then

USofA

[Imaputz-85a]

lets find a close analogy....

I am suing Rotty for 1 zillion dollars in damages. I am using small claims court, since in my state the limit is 1.5 zillion dollars for small claims court.  I go to the court house and file my peition On December 12, 2007. The clerk prepares the summons and sends it off to Rotty certified mail. Rotty hits it for a round the world trip to celebrate the latest CA paying off. 

The summons gives 20 days file an answer, but Rotty is in Europe until January 31, 2008.  Rottie gets home, opens the envelope and runs to the court house to file the answer. 

Can I just get a default judgment against her and start spending the zillion dollars?

No, Rotty has 20 days from the receipt of the summons to answer and even if i had a judge that gave me a default on January 15, Rotty could get the judgment set aside.

Same thing here. You have 30 days to DV after you receive the notice. If OP did not receive the notice until end of January, she can still DV but better be able to show where she was until then

USofA

That's not a close analogy. 

First of all, CA's are not required to send mail certified. They are only required to document the sending process.

Second, this is not in the courts. It is a basic collection action regulated by FDCPA.

Third, the whole point here is determining whether AFNI violated, not whether the OP can get some sort of extension on his DV.

AFNI did not violate FDCPA, and there is no cause of action.

[CleaningUp]

What Uranus misses, or chooses not to see, is that the OP, by stating the date of his receipt of the dunning letter in his DV, establishes an on-the-record point of evidence that the CA/JDB must deal with to prevail. How and how well he deals with it will determine if he will prevail.

The argument of the common mailbox rule could easily prevail absent the explicit statement of the date of receipt in the written record. However, once in the record, it must be dealt with.

As long as our court system is based on the adversarial concept, the existence of a contemporaneously created evidence point will need to be addressed.  It cannot be swept away by casual dismissal.

As was said before:

.... If you are advising differently, you should be able to back it up. Otherwise, it is nothing more than wishful thinking.

I think we are still waiting for some sort of substantive response or citation that would render the statutory language to mean something other than what it says.

[Imaputz-85a]

What Uranus misses, or chooses not to see, is that the OP, by stating the date of his receipt of the dunning letter in his DV, establishes an on-the-record point of evidence that the CA/JDB must deal with to prevail. How and how well he deals with it will determine if he will prevail.

I have not missed anything. Just because OP states something, does not make it legally relevant. However, in this case, the only thing OP stated was that he was not home to receive the notice. Not that the CA was somehow negligent in sending it.

The argument of the common mailbox rule could easily prevail absent the explicit statement of the date of receipt in the written record. However, once in the record, it must be dealt with.

Again, the OP has never even implied that the letter was not received in a timely manner, only that he was not there to see it.

As long as our court system is based on the adversarial concept, the existence of a contemporaneously created evidence point will need to be addressed.  It cannot be swept away by casual dismissal.

There is no evidence of wrongdoing by the CA here.

As was said before:

".... If you are advising differently, you should be able to back it up. Otherwise, it is nothing more than wishful thinking."

I think we are still waiting for some sort of substantive response or citation that would render the statutory language to mean something other than what it says.

The substantive citation has already been made, albeit wholly misinterpreted in a self serving manner. Mahon v. Credit Bureau of Placer County Inc. I suggest an objective reading of that <ToS violation removed>. Here is a direct link: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=9th&navby=case&no=9717298&exact=1

[Imaputz-85a]

I apologize for the TOS violation. I was not trying to be rude, just a little emphatic.

[CleaningUp]

The link that you provided to Mahon requires membership.   This link provides the text in a public forum: 

http://bulk.resource.org/courts.gov/c/F3/171/171.F3d.1197.97-17298.html


As I noted above, with the contemporaneous establishment of the date of the receipt contained within the DV, the CA/JDB must address the issue. It is part of the documented record. The debtor who includes the date of receipt in the DV establishes a material fact which must be either challenged or accepted.

In Mahon, the claim was made as part of the pleadings, not part of the DV request. So while the citation is informative, it has many of the markings of an apples and oranges situation.

The CA/JDB is free to argue the Common Mailbox Rule, but argue it they must.

As part of the overall thrust of the Flyingifr Method, such a hurdle, once in place, has the effect of making negotiated settlement more attractive.

[Imaputz-85a]

Argue it they must. But once this goes anywhere, the debtor has a much bigger hurdle to clear than the CA does.

Occam's razor: did the mysterious forces of the universe unite to delay the CA's mailed DV notice by up to six weeks, keeping it in limbo while, coincidentally, OP just happened to be out of town anyway, rendering all of the safeguards he must have had in place to catch important mail useless? Or.... did OP leave town on a six week pleasure cruise, only to return to all the bills he had neglected plus a surprise collection notice that, of course, he did not "receive" until he got home and saw it sitting in the stack with all of the other mail?

To pin a violation on the CA for presuming this to be valid after the 30 days runs its course, despite the OP's negligence, will be a non-starter.

I'm just saying, anyone who sees an easy payday in this is dreaming. And anyone who encourages OP to pursue this is  morally liable for the expense of a failed suit.

[CleaningUp]

I don't believe that anyone has recommended initiating a law suit based solely on this argument. A history of recurrent violations of various kinds would be needed for such action.

I would also say that anyone seeing an easy payday in any debt related suit needs to understand that he can just as easily lose if he does not have the preponderance of the evidence on his side.

The argument to be made is that to protect one's due process rights, one must be active on one's own behalf. Key to that is making sure there is a proper paper trail that ties all the elements together. Placing the date of receipt of the validation notice in the DV is one of the active steps that one can take.

[ghost]

I'm just saying, anyone who sees an easy payday in this is dreaming. And anyone who encourages OP to pursue this is  morally liable for the expense of a failed suit.
Somehow I don't see this as bad faith or harassment....

[Rottweiler]

The fact is that, absent a provision for abode service (not applicable in this case), the date the OP said they got the letter--and were willing to risk the legal exposure of stating a date certain up front that could well come back to bite them--does rebut the presumption that the OP was simply lazy.  In turn, the CA could rebut the presumption that the DV was timely by demanding the OP prove their whereabouts during this time frame in order to support the legality of their refusing to comply with the request and continuing collections anyway.

Note that there is no law which limits the reasons allowable for such alleged "negligence" in dealing with their statutory responsibilities under the FDCPA for the absence of the OP.  Therefore any provable reason they did not deal with the letter sooner will work.  Your argument would, in essence, be putting strictures on such reasons that the law does not require. 

[DefLepGirl]

Argue it they must. But once this goes anywhere, the debtor has a much bigger hurdle to clear than the CA does.

Occam's razor: did the mysterious forces of the universe unite to delay the CA's mailed DV notice by up to six weeks, keeping it in limbo while, coincidentally, OP just happened to be out of town anyway, rendering all of the safeguards he must have had in place to catch important mail useless?

I don't quite understand how the debtor has a bigger hurdle to clear here than a CA does...... If said "Debtor" simply stated I was away from XX/XX/ XXXX to XX/XX/XXXX due to ___________ (Business, Vacation, Sickness, Etc. Etc.) and could throw in some proof (IE)  Here is a letter from my local post office stating that my mail was on hold from XX/XX/XXXX until XX/XX/XXXX and if they felt generous and really wanted to slap the CA provide additional proof (IE) here is a letter from my employer stating that I was _______ for business on the above dates, (OR) (whatever the case may have been)  Is it a pain? Eh no it's a paper trail.........  Is it a bigger hurdle? Eh not really (again) it's a matter of how one argues their cause...........

Rocket........ One thing you said kinda caught my eye........  (it's bolded above)  and it's a question not an accusation ...... Are you by chance a CA?   I ask because quite frankly I don't know to many folks that consider a dunning from someone like AFNI "Important Mail".......   

Although I 100000000000000% believe that all dunning's should be answered within a timely manner......  I don't believe I've ever seen them referred to as "important" *unless it was by a CA*.......

Or.... did OP leave town on a six week pleasure cruise, only to return to all the bills he had neglected plus a surprise collection notice that, of course, he did not "receive" until he got home and saw it sitting in the stack with all of the other mail?

In this day and age it would be VERY easy to prove that all "bills" and actual IMPORTANT business items were taken care of via electronic means............ *unless ofcourse there was a illness involved and OP could not get to his /her computer......... 

To pin a violation on the CA for presuming this to be valid after the 30 days runs its course, despite the OP's negligence, will be a non-starter.

I'm just saying, anyone who sees an easy payday in this is dreaming. And anyone who encourages OP to pursue this is  morally liable for the expense of a failed suit.

I (personally) have never had to "pin" a violation on a CA........ they typically pin themselves