Author Topic: Afni, Inc  (Read 4206 times)

0 Members and 1 Guest are viewing this topic.

usofa

  • Valued Member
  • Posts: 446
Re: Afni, Inc
« Reply #30 on: April 17, 2008 04:54:14 AM »
Time Out, time to get back to earth from Uranus.

looking back, the issue is not if AFNI has violated already.  AFNI has NOT violated anything involving the 1692g notice.  The issue is whether the DV is timely or not. Subsection A states that the CA must provice the notice within 5 days of the initial communication. Subsection B states that if the if the consumer notifies the debt collector in writing within 30 days of the recepit of the notice.  Seperate itssues and seperate dates certain.

As for the common law mailbox rule that presumes receipt of an item properly mailed, it is a rebuttable presumption.  The OP rebuts it by stating "I received on the following date. I was xxxxx until January 15."

Now if AFNI disregards the DV and continues collections, they are in violation of 1692(b).  But they are still compliant with 1692(a)

Any questions?

USofA

Imaputz-85a

  • Valued Member
  • Posts: 223
Re: Afni, Inc
« Reply #31 on: April 17, 2008 10:46:22 AM »
Quote from: DefLepGirl
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...........

I would be more open to acknowledging the possibility of this approach if there was any kind of precedent, binding or not, that showed a CA in violation for not honoring an extension on the demand of the debtor. I'm not saying it doesn't exist, just that I have never seen one.

Quote from: DefLepGirl
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*.......

That is an astute observation. I choose not to identify exactly what my identity/perspective/mission is, but I can assure you I am not a CA plant intended to disrupt this board. To address your question though, I would consider any mail that has the potential to harm my credit or put me in legal crossfire to be "important."

Quote from: DefLepGirl
....... they typically pin themselves :)     

In my experience, I would have to say I agree.
 

Imaputz-85a

  • Valued Member
  • Posts: 223
Re: Afni, Inc
« Reply #32 on: April 17, 2008 10:56:39 AM »
Quote from: usofa
looking back, the issue is not if AFNI has violated already.  AFNI has NOT violated anything involving the 1692g notice.  The issue is whether the DV is timely or not. Subsection A states that the CA must provice the notice within 5 days of the initial communication. Subsection B states that if the if the consumer notifies the debt collector in writing within 30 days of the recepit of the notice.  Seperate itssues and seperate dates certain.

As for the common law mailbox rule that presumes receipt of an item properly mailed, it is a rebuttable presumption.  The OP rebuts it by stating "I received on the following date. I was xxxxx until January 15."

Now if AFNI disregards the DV and continues collections, they are in violation of 1692(b).  But they are still compliant with 1692(a)

Any questions?

USofA

All points that would be stronger with some sort of a citation.

I believe I have said all I can say on this topic.

CleaningUp

  • Valued Member
  • Posts: 8586
Re: Afni, Inc
« Reply #33 on: April 17, 2008 02:35:23 PM »
All points that would be stronger with some sort of a citation.

I believe I have said all I can say on this topic.

In as much as the plain language of the statute is difficult to misinterpret, it could well be that no CA/JDB is willing to lose, and thereby set precedent, by trying to tackle the point in Court.

DefLepGirl

  • Y-E-A-H!
  • Valued Member
  • Posts: 2250
    • :0)
Re: Afni, Inc
« Reply #34 on: April 17, 2008 07:49:54 PM »
Quote
I would be more open to acknowledging the possibility of this approach if there was any kind of precedent, binding or not, that showed a CA in violation for not honoring an extension on the demand of the debtor. I'm not saying it doesn't exist, just that I have never seen one.

Does there really have to be a precedent for common sense? ........ think about this.......... Life happens........ folks do not sit around waiting by their mail box for a dunning letter to arrive...........Business, Vacation, Illness occur.......

Are you stating that in order to take a business trip I should have to find case law that states *I Can* (just in case _________ happens while I'm gone) 

I think a judge *especially* if you have a documented leave of absence will look at it via circumstances..


Quote
That is an astute observation. I choose not to identify exactly what my identity/perspective/mission is, but I can assure you I am not a CA plant intended to disrupt this board. To address your question though, I would consider any mail that has the potential to harm my credit or put me in legal crossfire to be "important."

I think the keywords here are.........I am not a CA plant intended to disrupt this board     ;)


I do agree that any mail that has the potential to *harm* my credit is important...... 

However due to the :ahem:  :vbrolleyes: efficiency of most CA's by the time that first dunning comes it's more than likely already on your CR....... and top that with 8 out of 10 CR's contain mistakes and the *harm* is already done........

Weeeeeeell quite frankly I'd rather rely on a monitoring service than the USPS

BTW........ I don't know that it was an "astute observation" it was more of the *attitude* that came across......  I've dealt with that attitude before via phone....... and a couple of months later via check deposited into my bank account ;)
« Last Edit: April 17, 2008 07:53:15 PM by DefLepGirl »
~I'm not an attorney (nor) do I play one on the internet.. Take everything I *write* as just my personal opinion and experience~

I love quoting Fleppie / Deflepgirl -  E. Normis  (Ok he actually didn't say it but actions speak louder than words..... or in this case words speak louder oooh whatever he loves it!-

Imaputz-85a

  • Valued Member
  • Posts: 223
Re: Afni, Inc
« Reply #35 on: April 17, 2008 08:31:27 PM »
Def,

I'll say this... considering the Mahon precedent, I don't think it is unreasonable for CA's have every reason to expect that once the DV letter is sent successfully, they can expect the protection afforded to them by FDCPA against frivolous suits (by assuming the debt is valid).

Where common sense comes into play would be the approach a consumer takes to resolving the issue. Instead of...

"Your demand letter dated 12/14/2007 was received today. I do not recognize this debt as mine. Validate."

I think the reasonable, common sense approach is...

"I have been out of town for the last 6 weeks and just received your demand letter. I request validation per FDCPA (blah blah blah)"

One approach is suspect, the other is a reasonable explanation that, in my mind, opens a door rather than slamming it shut. If the CA disregards that approach, I think OP's time spent in front of a judge is much more likely to succeed.

Again, my point throughout this whole conversation has been not whether or not OP deserves his extension, but whether under the circumstances, the CA is guilty of a violation.

While I am willing to concede I may be wrong about all of this, I still think the approach he took does more to protect the CA than to nail it. I guess it would depend on how consumer-friendly the judge is.

As for your wild speculation on my secret identity, I'll let you continue to speculate. I am glad to see I convinced you (with my unrelenting charm no doubt) that the definition of important mail is fairly universal in this case.

And as for my "attitude"... well let's just say that management has informed me that feathers have been ruffled by it already. To me, that just means I must be doing something right! That won't change. The only thing that might change is my continued participation here, if my brand of kool aid is too strong for the locals. I guess that remains to be seen.

DefLepGirl

  • Y-E-A-H!
  • Valued Member
  • Posts: 2250
    • :0)
Re: Afni, Inc
« Reply #36 on: April 17, 2008 09:24:56 PM »
Quote
Def,

I'll say this... considering the Mahon precedent, I don't think it is unreasonable for CA's have every reason to expect that once the DV letter is sent successfully, they can expect the protection afforded to them by FDCPA against frivolous suits (by assuming the debt is valid).

Where common sense comes into play would be the approach a consumer takes to resolving the issue. Instead of...

"Your demand letter dated 12/14/2007 was received today. I do not recognize this debt as mine. Validate."

I think the reasonable, common sense approach is...

"I have been out of town for the last 6 weeks and just received your demand letter. I request validation per FDCPA (blah blah blah)"

Rocket.........

Quite honestly I have never dealt with a CA that was willing to take the common sense approach....... (If) they were they probably would not have gotten sued......   I *do* agree with the above BUT only because I believe it would be a stronger paper trail for the consumer......... (IE)   You've explained to the CA that you were out of town....... and *just* received the dunning and can now copy that and place it in your paper trail file.......... 

Quote
One approach is suspect, the other is a reasonable explanation that, in my mind, opens a door rather than slamming it shut. If the CA disregards that approach, I think OP's time spent in front of a judge is much more likely to succeed.

Actually agree with that point............

Quote
Again, my point throughout this whole conversation has been not whether or not OP deserves his extension, but whether under the circumstances, the CA is guilty of a violation.

I think the entire problem with this is that CA's violate so flagrantly that alot of us already know the outcome.......   But ...... again...... I do agree that a STRONG paper trail for the consumer is absolutely important..........

Quote
While I am willing to concede I may be wrong about all of this, I still think the approach he took does more to protect the CA than to nail it. I guess it would depend on how consumer-friendly the judge is.

(Or) how the consumer argues it.....

Quote
As for your wild speculation on my secret identity, I'll let you continue to speculate.


"Thou doth protest too much"   :P


Quote
I am glad to see I convinced you (with my unrelenting charm no doubt) that the definition of important mail is fairly universal in this case.

Define Charm?  :grin:   But that is a good point and I will make sure to tell the next CA that calls how "charming they are"........ right after a "psychological pause" 


Quote
And as for my "attitude"... well let's just say that management has informed me that feathers have been ruffled by it already. To me, that just means I must be doing something right! That won't change. The only thing that might change is my continued participation here, if my brand of kool aid is too strong for the locals. I guess that remains to be seen.

As FF has said so many times "Good Ideas Chase Away Bad"  and as far as I know DB has always been open to both consumers and collectors..... I wouldn't take ruffling feathers as a badge of honor....... I would however take helping another consumer who is being ripped off and ruined with violations as one........

:::::::Psychological Pause::::::::::::::

Soooooooo where do ya get that cape and tights dry cleaned O mysterious one?  :::::::::::running for cover::::::::::::: :vbrofl:
~I'm not an attorney (nor) do I play one on the internet.. Take everything I *write* as just my personal opinion and experience~

I love quoting Fleppie / Deflepgirl -  E. Normis  (Ok he actually didn't say it but actions speak louder than words..... or in this case words speak louder oooh whatever he loves it!-

CleaningUp

  • Valued Member
  • Posts: 8586
Re: Afni, Inc
« Reply #37 on: April 17, 2008 10:33:30 PM »

.... Instead of...

"Your demand letter dated 12/14/2007 was received today. I do not recognize this debt as mine. Validate."

I think the reasonable, common sense approach is...

"I have been out of town for the last 6 weeks and just received your demand letter. I request validation per FDCPA (blah blah blah)"


The generic "six weeks" lacks the specificity that the date certain provides. The point is to put on the contemporaneous record the date that the alleged debtor believes the 30 day clock begins. By doing this it provides rebuttal a priori to a possible common mailbox rule contention.  The date certain is key. A further explaination is nice, but not really necessary.

As for your reliance on Mahon, remember the case was about the granting of summary judgment, not on the merits of the term "receipt".

Mahon did not, through evidence, rebut the presumption permitted by the common mailbox rule, and, quite rightly, lost on the summary judgment ruling because there was no contradictory fact. The Court merely explained the mechanism of the common mailbox rule and its legitimate presumption in the absence of factual rebuttal.

Would the Court have ruled as it did if there were factual rebuttal?  Maybe, maybe not. But that was not the issue in Mahon, so it is an error to say that it was addressed.

One thing I think would have happened, though, is that the summary judgment would have been reversed, and the case sent back to the trier of fact since there were disputed facts.

A point that all need to understand while engaged in litigation, the law is what the Judge says it is on any given day. If you disagree, you have the right of appeal.
« Last Edit: April 17, 2008 10:44:21 PM by CleaningUp »

Imaputz-85a

  • Valued Member
  • Posts: 223
Re: Afni, Inc
« Reply #38 on: April 17, 2008 10:52:08 PM »
Quote from: CleaningUp
A point that all need to understand while engaged in litigation, the law is what the Judge says it is on any given day. If you disagree, you have the right of appeal.

I think we have found our common ground!

Quick, moderator, close this thread before someone fouls it up!  ;D

razorsedge

  • Valued Member
  • Posts: 129
Re: Afni, Inc
« Reply #39 on: April 26, 2008 06:03:01 PM »
Wow. I called the OC today and learned that this is a balance of mine from 1993 when I briefly lived in another town. Is there any law that prohibits them from collection when we are 11 years past the SOL in my state? 
"Great spirits have always found violent opposition from mediocre minds." Albert Einstein

Kitten

  • Valued Member
  • Posts: 1992
    • MCSD
Re: Afni, Inc
« Reply #40 on: April 26, 2008 06:49:35 PM »
Is there any law that prohibits them from collection when we are 11 years past the SOL in my state? 

There is if you live in one of the two states with a statute of repose.
There also is if you send them a cease and desist. If you C&D them, they get to send you one letter telling you what they are going to do about it (close the file and go away if they have any brains).

razorsedge

  • Valued Member
  • Posts: 129
Re: Afni, Inc
« Reply #41 on: April 26, 2008 06:56:23 PM »
Thanks. Any idea what the identity is of the two states with repose laws?    8)
"Great spirits have always found violent opposition from mediocre minds." Albert Einstein

E. Normis Debtor

  • Valued Member
  • Posts: 2433
Re: Afni, Inc
« Reply #42 on: April 26, 2008 07:13:48 PM »
WI and MS
I don't respond to PM's or emails for advice on specific circumstances.  My participation in this forum is general in nature, and not intended to create an attorney/client relationship.

razorsedge

  • Valued Member
  • Posts: 129
Re: Afni, Inc
« Reply #43 on: April 26, 2008 07:16:42 PM »
That rules out GA and, thus I should craft a C & S letter. After receipt all but one letter are prohibiitve, correct.   :lildevil:
"Great spirits have always found violent opposition from mediocre minds." Albert Einstein