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Mailbox Rule

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California Court of Appeal Says, “Use a Stamp!”

by Scott J. Hyman |

In Dalessandro v. Mitchel, No. BC293472, 2019 Cal.App.LEXIS 1309 (Ct.App. Dec. 17, 2019), the Court of Appeal said that service is ineffective by proof of mailing unless there is proof that the mailing was properly paid for. We conclude the trial court did not err in denying the motion to compel. The trial court found service of the demand to… Read More

District Court (Cal.) Says Debt Collector Can Use Reasonable Policies and Procedures Defense to Establish that It Did Not Receive Debtor’s Dispute Letter

by Scott J. Hyman |

In Williams v. Enhanced Recovery Co., LLC, No. 18-cv-03699-HSG, 2019 U.S. Dist. LEXIS 137631 (N.D. Cal. Aug. 14, 2019), Judge Gilliam granted summary judgment to a debt collector. The Court finds that ERC has carried its burden to establish an entitlement to the bona fide error defense, and the Court thus does not consider whether there is a material dispute… Read More

District Court (W.V.) Finds Triable Issue of Material Fact as to When Bank “Received” Notice of TCPA Revocation

by Scott J. Hyman |

In Casto v. Branch Banking & Trust Company, 2018 WL 265586, at *1–13 (S.D.W.Va., 2018), Judge Chambers denied a Bank's summary judgment seeking to dispose of a TCPA claim, in part, finding problems with Defendant's "mail-box" rule argument with respect to when the Defendant's agent received the written revocation. Indeed, Defendant vies for summary judgment upon the receipt date of the… Read More

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

by Scott J. Hyman |

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… Read More

District Court (Mo.) Holds Consumer Not Entitled to Mailbox Rule Protection for C&D Letter

by Scott J. Hyman |

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… Read More