District Court (Cal.) Finds FDCPA Plaintiff Must Plead by Clear and Convincing Evidence that Plaintiff Did Not Receive Debt Validation Letter

In Smith v. Law Offices of Patenaude & Felix, A.P.C., 2014 WL 3695473 (S.D.Cal. 2014), Judge Hayes found that a debtor must plead by clear and convincing evidence that the debtor did not receive a debt validation letter from the debt collector.

Congress enacted the FDCPA to “eliminate the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.” Swanson v. Southern Oregon Credit Serv., Inc., 869 F.2d 1222, 1225 (9th Cir.1988). Section 1692g(a) requires that the initial communication with a consumer in connection with a debt contain: (1) the amount of the debt; (2) the name of the creditor; (3) a statement that if the consumer, within thirty days after receipt of the notice disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer disputes the debt, the debt collector will mail the consumer verification of the debt or a copy of a judgment; and (5) a statement that, upon the consumer’s written request, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. 15 U.S.C. § 1692g(a)(1)-(5); see also Terran v. Kaplan, 109 F.3d 1428, 1431 (9th Cir.1997). The term communication means “the conveying of information regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2). The initial communication need only be sent by the debt collector who is under no obligation to establish receipt by the debtor. Mahon v. Credit Bureau of Placer Cnty. Inc., 171 F.3d 1197, 1201 (9th Cir.1999). Under the common law Mailbox Rule, “proper and timely mailing of a document raises a rebuttable presumption that it is received by the addressee.” Id. at 1202. To overcome this rebuttable presumption of mailing and receipt, a debtor must prove “by clear and convincing evidence that the mailing was not, in fact, accomplished.” In re Bucknum, 951 F.2d 204, 207 (9th Cir.1991); see also Grant v. Unifund CCR Partners, 842 F.Supp.2d 1234, 1241 (finding debtor’s only evidence-that she never received the letter-insufficient to overcome the rebuttable presumption).