In Pace v. Portfolio Recovery Services, LLC, 2012 WL 2398024, (W.D.Mo. 2012), here, Judge Sachs held that a Plaintiff who gave ambiguous testimony on mailing of a Cease and Desist letter under FDCPA was not entitled to the presumption of the mailbox rule wherein delivery is presumed.
Whether plaintiff can create a jury issue over adequately having given written notification to stop calling is the most challenging point I am called upon to decide. I have previously suggested that the law is in some disarray on what constitutes a legally submissible claim to having caused delivery of a letter. Bailey v. Potter, 2006 WL 15478 (W.D.Mo.). The Circuit has indicated in another case that it was a “very close call” as to submissibility of the issue of receipt of a message. Kennell v. Gates, 215 F.3d 825, 830 (8th Cir. 2000). In the circumstances of this case the statute arguably requires a claimant to make specific proof of receipt of a mailing, presumably from a defendant’s records. Wielicki v. HMC Group, 2009 WL 2496642 fn.1 (N.D.Ohio).8 While intending to help consumers to resist abusive collection efforts, the statutory language suggests unusual concern that there be proof of receipt of a notice to stop calling. A casual unsupported claim of written notice by a consumer may not have been contemplated as creating a “Federal case” where there is no record of an incoming notice. When a governmental of business entity makes proof of routine mailing of a document, a presumption of receipt of the mail is widely accepted as controlling. Where an individual claims to have mailed something to an organization that presumably has a systematic method for recording or filing incoming mail, any presumption of receipt of a missing document is very feeble, despite testimony as to mailing.