Has anyone dealt with "equitable tolling" of the 30 day DV?

[Downto0]

I sent a JDB a dv request. I was a little confused as to where to send the dv because there were two possible return addresses in their mini-Miranda letter and no directive as to where to send for dv.

I picked one. It was apparently the wrong one because the dv request went to the east coast and the green card came back unsigned and stamped from the west coast. I did a track and confirm with the post office and it said that the letter was received by the post office but no further information was available.

I went to the post office. The post master called the east coast and they said that the dv shouldn't had come there, the green card had apparently been separated from the dv letter, was not scanned, and both the green card and the dv letter made their way to the west coast separately. Someone at the west coast had apparently slipped the green card in the return mail to me without signing it.

To make things worse, the post office somehow lost the green card while they were investigating so now I don't have the unsigned green card with the post mark.

I did all I could do at the time. I have the postmaster's notes explaining the separation of the green card and the dv letter. I have the receipt to establish that I originally sent a timely dv. The problem is that the JDB sent another dunning letter as if I did not send a dv at all. I sent them a follow up dv letter and inserted the original dv letter. I told them I had received the green card from the original and that they had plenty of time to inform all of their offices that dv had been requested.

They have never sent another dunning letter or made another dunning call since. However, I noticed recently that they have been updating my cr for the whole time they were silent. This is continued collection activities.

I'm sure that one of the JDB's defenses would be that I did not send a timely dv.

In Moya v United States, the court said:

Although plaintiff claims the request for reconsideration was sent to defendant by certified mail, plaintiff has no record of a return receipt ever being received. While the law presumes delivery of a properly addressed piece of mail, McPartlin v. Commissioner, 653 F.2d 1185, 1191 (7th Cir.1981), no such presumption exists for certified mail where the return receipt is not received by the sender, Mulder v. Commissioner, 855 F.2d 208, 212 (5th Cir.1988); McPartlin, 653 F.2d at 1191. The reason is that the sender of a certified letter who does not receive the return receipt is on notice that the addressee may not have received the letter. See McPartlin, 653 F.2d at 1191. It is then incumbent upon the sender either to inquire with the addressee or send the letter again.

Here, Moya, who did not follow up on the non return of the green card, lost her case because of that very reason. It would seem that the court indicated that if she had followed up her claim would have been timely and she probably would have won her case.

My case is a little different because Moya had 120 days to give notice where as I only had 30. By the time I found out about the mishap the 30 days had expired. I did everything as quickly as I could and, at the time I wrote the second dv letter, I had the green card in hand. Now I don't have the green card because the post office lost it while they were investigating the matter.

My argument would be that I sent for dv in a timely manner and that the post office erred. When I found out that they erred, I immediately followed up. I have their notes explaining the matter and I resent for dv anew to the correct address. I have that green card. I feel that the 30 days should be tolled to cover the second dv letter.

Do I have a viable argument?

[Downto0]

No one has heard of the 30 days being tolled for any reason? I have not found a court case which has dealt with an untimely dv so I'm looking for any input as to when tolling would be appropriate.

[BV80]

It could be argued that they didn't provide the specific address for a DV. Whether or not that would pass muster, I don't know. Your question is interesting. I wonder if that argument has ever even been used in a court.

[Downto0]

It could be argued that they didn't provide the specific address for a DV.

Yea, I see this as a major problem for any collector who puts more than one address on a mini-Miranda letter. Generally, the address in the heading of a letter is the return address but one cannot assume that anymore. I actually recently got a dunning letter where the name of the addressee along with the box number and town were starkly different than the other two addresses on the mini-Miranda letter. I ended up doing a Google on the collector for their contact information and printed a copy of the web page.

Anyway, I am just trying to tie up loose ends. I kind of forgot about the missing green card. I've been looking until my eyes bleed and I haven't been able to find where the 30 day mini-Miranda issue has been debated at all for any reason. The closest I could come up with is the case I posted concerning a 120 day deadline for a notice of appeal to the Veteran's Administration.

I would have to agree with that court that non return of a green card should have alerted the sender. When I got the green card back with the wrong post mark and no signature or date, I suspected that something was amiss. I have documented my good faith effort to notify the collector. I don't see where I could have done anything more than I did except that I should have looked to see that the post master had given all the documents back to me.

I don't really think the court can fault me for this error because I've seen it opined in several cases that the theory behind the mail box rule is that the government workers will perform their duty as expected.

Well, I guess I'll go with the argument I have. The post office erred and I followed up by sending another dv letter. Under the circumstances, the 30 day mini-Miranda should be tolled to cover the second dv letter.

I'd still be interested in any opinions or personal experiences on the matter.

[usagi555]

Originally Posted by Downto0

Yea, I see this as a major problem for any collector who puts more than one address on a mini-Miranda letter. Generally, the address in the heading of a letter is the return address but one cannot assume that anymore. I actually recently got a dunning letter where the name of the addressee along with the box number and town were starkly different than the other two addresses on the mini-Miranda letter. I ended up doing a Google on the collector for their contact information and printed a copy of the web page.

Anyway, I am just trying to tie up loose ends. I kind of forgot about the missing green card. I've been looking until my eyes bleed and I haven't been able to find where the 30 day mini-Miranda issue has been debated at all for any reason. The closest I could come up with is the case I posted concerning a 120 day deadline for a notice of appeal to the Veteran's Administration.

I would have to agree with that court that non return of a green card should have alerted the sender. When I got the green card back with the wrong post mark and no signature or date, I suspected that something was amiss. I have documented my good faith effort to notify the collector. I don't see where I could have done anything more than I did except that I should have looked to see that the post master had given all the documents back to me.

I don't really think the court can fault me for this error because I've seen it opined in several cases that the theory behind the mail box rule is that the government workers will perform their duty as expected.

Well, I guess I'll go with the argument I have. The post office erred and I followed up by sending another dv letter. Under the circumstances, the 30 day mini-Miranda should be tolled to cover the second dv letter.

I'd still be interested in any opinions or personal experiences on the matter.

I don't know about equitable tolling, but if you catch them in a few other violations and decide to pursue the matter, you might be able to argue that placing two addresses without clearly indicating which one is for the DVs is misleading.

[antiquedave]

Originally Posted by usagi555

I don't know about equitable tolling, but if you catch them in a few other violations and decide to pursue the matter, you might be able to argue that placing two addresses without clearly indicating which one is for the DVs is misleading.

I would go with that

[usagi555]

Originally Posted by antiquedave

I would go with that

The other thing is that it may be possible to argue either simultaneously or in the alternative that they were being willfully ignorant, and then attach that to whatever 1692e, 1692f and state law violations that may apply.

[Downto0]

Well, the sol has run out on any violation because this all happened a couple of years ago. I wasn't really interested in suing then. I just wanted them to go away. They did but now I find out that it's illegal for them to even report the tl if dv is not returned.

The interesting issue is that a court in my district has already ruled that my JDB has violated the FDCPA for continued collection activities by reporting a tl while not returning dv. I don't believe that my JDB would want to go in front of the same court and defend themselves for the same violation when they already know that the court would not go against themselves.

The problem for me may be that I don't have a timely green card. And, since I did get another dunning letter, it appears that they may have not gotten the certified dv. My counter argument would be that I followed up with an investigation to the post office.

The post master basically stated that the post office scanned the green card for receipt of the dv letter but that the card was not scanned after that and that the dv letter and the green card made it to the JDB's office, posssibly separated, and that someone put the green card in the return mail without signing.

As I said, the post master did not return the green card with the rest of the file but I did not know that as I trusted her at her word that everything was still in the file and did not check the contents. A couple of weeks later I got another dunning letter from the JDB. I sent them a second dv letter and told them that I had the green card (I thought I did) from the first dv letter and that they had had time to contact all of their offices to cease collection activities.

The JDB stopped sending dunning letters and making phone calls. I had assumed that they had stopped all their collection activities until I checked the credit report. Now I am suing them. It's likely to come up that there is no green card to establish a timely delivery. My counter argument is that the 30 days should be tolled as I have a receipt showing that I made a timely delivery, that the post office made an error, I followed up with an investigation and a second dv letter explaining that I had sent the first dv. It's hard to say whether Discovery would turn up the first dv letter, or not but I could not count on it.

I feel that the JDB's silence is acquienscense. It means that they found the first dv letter, saw that it was timely and ceased their collection activities...except for their monthly reporting of the tl for the last two years.

I can't find any cases, or anything, which deal with a timely/untimely dv. This is why I am asking if anyone has had any experience with an untimely dv or knows of any case law for the same.

Anyone?