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.