Talk about a DUMB CA!!!

I sent a Cease & Desist Letter to a CA Certified Mail, Return Receipt Requested. The Post Office just returned it to me as "unclaimed"!!!!

No wonder they ignored it and call me ever other day. Do I see an interesteing FDCPA suit here or am I missing something?

 

Re: Re: Talk about a DUMB CA!!!

Not in and of itself, but it brings up a well settled principle of law in that you cannot scream "I didn't know there was a C & D order" when they REFUSED to know of it. So... of course the 3 collectors who called after the first delivery attempt by the USPS (I'm alleging that to be the date of CONSTRUCTIVE RECEIPT) couldn't have known, ad all I did was ask them "did you read my letter of XXXXX (date)?". So my position is that each of those calls, and any subsequent calls, constitutes a separate iolation of my FDCPA rights in that it is an attempt to collect in violation of my C & D order.

Today I am sending them a demand letter for the 3 violations of FDCPA that occurred after the date of constructive receipt. Each aditional call will generate another demand letter, Each uncomplied demand letter will generate a small claims suit 14 days after mailing of the demand letter.

Here's an interesting bet: How many suits will I have going against this one CA at one time?

 

Re: Re: Re: Talk about a DUMB CA!!!

My argument that avoidance of knowledge is no defense is well established in law. See United States v Jewell 532 F2d 697, 9th Cir, Cert Denied, 426 US 951 (1976):

" The substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable." The rule is:

Quoting "Tax Fraud and Evasion" (Comiskey Feld & Harris, authors - Warren Gorham & Lamont Press) Section 2.03(3)(b): (Elements of a Criminal Act)

A defendant who acts with conscious purpose to avoid knowledge does not act in good faith. Willful blindness with respect to knowledge of the requirements of the law is inconsistent with a good-faith misunderstanding of the law (United States v Bussey, 942 F2d 1241, 1249 8th Cir, Cert Denied - 1991)... A willful blindness instruction (to a jury) is inappropiate where the evidence can support an inference that the defendant either had knowledge or lacked knowledge, but does not suggest that the efendant deliberately ignored learning facts."

My contention that failing to pick up a certified letter when noticed by the Postal Service that there is a Certified Letter to be delivered is a willful act, and therefore the defendant (the CA) bears the burden of being in willful avoidance of knowledge and bears the burdens thereof. In this case, the sole burden would be culpability for the contents of the letter they avoided receiving, and the consequences thereof.

As far as the multiple violations, I draw this analogy: You are driving your car down a street, and that street has several cross-streets named A Street, B Street, C Street and so on. A Police Car is directly behind you. You drive through the STOP sign at A Street, the police car stops you and gives you a ticket. You drive away and blow through the STOP sign at B Street. The police stop you and ticket you for that. You continue on your way and repeat the scenario for C, D and E Streets, accumulating 5 tickets. Each ticket calls for a $1000 fine and 2 points on your license.

In Court how can you you argue that getting a ticket at A Street, B Street and C Street, D Street and E Street are not 5 separate violations, but are really one violation, and that your maximum fine can only be $1000 and 2 points? If that argument stands, then a single ticket gives one carte blanche to ignore all taffic laws in the future? I Doubt the Judge will agree, and this scenario is identical to the one I face except that so far I only have A, B and C. Give me time to accumulate D and E. For a Judge to rule that thsi analogy does not apply to a Collection Agency violating FDCPA would be to place the costs of violating a law and being caught as LOWER than the costs of compliance, because a CA could then just ignore FDCPA at will and face a maximum fine of $1000 for all the violations it can amass against a single debtor. The CA then would have apositive incentive to violate FDCPA as much a sit could to put maximum presssure on the debtor and only face a single fine that, ostensibly would be less than the commission the CA collects for harassing the debtor. That is inconsistent with Congressional Intent when FDCPA was passed. That is totally inconsistent with all principles of law.

 

Re: Re: Re: Talk about a DUMB CA!!!

No, and neither does the law. Normal business practices dictate that a business accept and open its mail. Failure to do so brings interesting results. See my post about Wilfull Ignorance in this thread.