Was The Certified Mail Notice Really Unclaimed?

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Here’s a “bonus” posting, but you’ll need to decide if “bonus” is the right description. This is somewhat autobiographical but, as they say, “write from your own life experience.” This week we received two notices that were sent to us by certified mail. That’s not unusual because we often receive notices by certified mail. After all, we are named in many documents as a secondary, but required, place to where notices must be sent. What was unusual was that the certified mail envelopes themselves were inside a larger envelope that was mailed to us, by ordinary mail, directly from the original sender of the notices. The original notices were mailed on March 9. We eventually received them on April 16.

The two original envelopes were returned to the original sender marked as “unclaimed.” It appears, however, that if delivery was ever attempted, it was only attempted on one occasion. Even that possible one attempt remains quite doubtful. Our office is open and staffed from before 7 AM until after 6 PM. A visit to the local post office and a meeting with the postal supervisor proved to be quite illuminating. Before anyone begins to think that this will be a “dump on everything the Postal Service does,” think otherwise. The supervisor was quite courteous and very informative. Of course, she couldn’t explain what had happened, but that was understandable. More interestingly, she went to some spot in the back of the post office and produced several computer printouts tracing the original notices. From those printouts, she was able to determine that if the attempt was ever made, it was the only such attempt made. Postal Service procedure is to make three attempts before returning certified mail to its original sender. Clearly, that had not happened.

Who knew? It seems that if you want to trace the history of a certified mail letter, the Postal Service has the ability to do so.

That’s one lesson. The other lesson is really a question. These particular notices required a response within three or five days. Otherwise, the recipient’s “consent” would be deemed given. Fortunately, as is common practice, our client received the primary notices and was able to act in time. Here’s the question: “what would’ve happened had there only been one designated recipient for notices and had the Postal Service repeated its mistake”? The answer would depend on whether notices are deemed given when sent or if they are deemed given on the earlier of receipt or refusal by the addressee and whether the “duplicate” notice was mandatory. Think about it. Words have meanings and even simple boilerplate provisions need to thought about carefully. If we are going to cut and paste boilerplate provisions, we all need to spend a little more time crafting them carefully and thinking about how mundane events could set us awry. Certainly, this week’s experience reminds all of us that duplicate, mandatory notice addresses have some value in today’s world.

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Comments

  1. Great post, Ira. I’m preparing to participate in a panel discussion of boilerplate lease provisions at the upcoming ABA RPTE Spring Symposia, and this is good information for our discussion of notice provisions. Thanks for the “bonus”!

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