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 notice revoking consent. . . Defendant claims that Plaintiff only revoked consent upon the Defendant’s receipt of the Notification Letter. Id. Defendant believes that undisputable facts demonstrate that CT received the Notification Letter on January 6, 2016 and Defendant actually received it on January 7, 2016. Id. at 2-3. Defendant’s last call took place on the same day it actually received the Notification Letter. Id. at 6. Under its view of the circumstances, Defendant did not place a call after Plaintiff had effectively revoked consent. Therefore, Defendant contends that it is entitled to summary judgment on this claim because as a matter of law it did not violate the TCPA.  Unfortunately, Defendant draws a false equivalency between receiving and processing. As such, Defendant fails to note the core issue of the factual dispute regarding the revocation. Without a doubt, CT processed the Notification Letter on January 6, and Defendant actually received that letter the next day. Even Plaintiff concedes as much.. . . But, the pertinent question—and consequential fact—is when did CT receive that letter. See Huffman, 2017 WL 2177351, at *4 (finding that “CT’s alleged receipt of the letter serves as reasonable means to revoke consent” under the TCPA). Although the evidence suggests that CT generally processes letters on the same day as it receives them, this is by no means a certainty, especially in light of the factual circumstances and procedural posture of this case. . . In fact, an agent of CT testified that CT does not stamp a receipt date upon the arrival of mail. Id. Therefore, the date of receipt is not undisputed as Defendant claims.  At the furthest point of reduction, the Court must decide whether it indisputably took 16 days for the USPS to deliver a letter thirteen miles. . .  In doing so, the Court must compare regular courses of business practice and decide which one was more “regular” in this particular instant. CT regularly processed letters on the day of receipt, suggesting that the Notification Letter reached CT on January 6, 2016. However, the USPS regularly delivers letters sent by First-Class Mail in one to three business days, suggesting that the Notification Letter reached CT on December 24, 2015, at the latest. . .  This is a discrepancy of over ten days in the expected receipt date. To decide the issue, the Court would have attribute this discrepancy to the actions of either CT or USPS. If the delay was caused by an unusual error in the delivery of the mail by the USPS, then the Court would likely find January 6, the date of process, to constitute the date of the letter’s delivery, and thus the date of consent revocation. However, if the USPS had delivered the letter in the usual course of delivery, and due CT’s mistake, CT did not process the letter until January 6, then the Court would likely find that Defendant was constructively notified of Plaintiff’s consent revocation prior to January 6. At the summary judgment stage, these types of questions constitute genuine issues of material fact. This determination befits the consideration of a jury, not the Court.  Despite Defendant’s refrain, Plaintiff has presented sufficient evidence to survive summary judgment. The most important concrete evidence is the postmarked envelope of the Notification Letter. As demonstrated from the postmark, the USPS received the Notification Letter on December 21, 2015. . . Additionally, the envelope reflected the correct address for the intended arrival point, CT’s office in Charleston.  These two concrete facts, the postmarked date and the correctly addressed envelope, give rise to a rebuttable presumption of timely delivery. Under the traditional common law mailbox rule, a correctly addressed letter placed into the mailing system is presumed to arrive at its delivery point in the usual time. See, e.g., Phila Marine Trade Ass’n, 523 F.3d at 147. Because Plaintiff has demonstrated (1) proper addressing and (2) placement into the USPS system on December 21, the Court finds that Plaintiff has entitled himself to the presumption of timely delivery.  Yet, Defendant has presented evidence that contests this rebuttable presumption. Defendant has put forth that, as a common practice, CT processes letters within twenty-four hours of receiving them. In this case, CT processed the Notification Letter on January 6, 2016. So too, Defendant has provided evidence that delays in the mailing, due to the USPS, have occurred in CT’s experience. . . .Together, these showings rebut the presumption of usual timely delivery.  However, the mere rebuttal of a presumption cannot support the foundation upon which summary judgment may be granted. . . .In order to reach a definitive conclusion regarding the date of receipt, the Court would have to judge the credibility of testimony, and weigh the evidence. This, however, is inappropriate on the consideration of a motion for summary judgment. . . .Therefore, the Court finds that the parties have demonstrated a genuine dispute regarding an issue of material fact.