In the Matter of the Complaint Against SPECTRUM 120 Wall Street at New York, NY 10005 and JACK W. PAYNE 6409 Parkwood Way at Paradise, CA 95969 P.S. Docket No. 13/154; 11/30/82 Cohen, James A. APPEARANCES FOR COMPLAINANT: Sandra C. McFeeley, Esq. Brendan J. O'Brien, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1112 APPEARANCE FOR RESPONDENT: Jack W. Payne 6409 Parkwood Way Paradise, CA 95969
Respondent has appealed from the Initial Decision of an Administrative Law Judge which holds that, with respect to the sale of loan information, Respondent is engaged in a scheme for obtaining money through the mail by means of materially false representations in violation of 39 U.S.C. § 3005.
On May 28, 1982, the Consumer Protection Division, Law Department, United States Postal Service (Complainant), filed a Complaint which alleges in paragraph IV that Respondent, expressly or by implication, falsely represents that:
"1. Respondents will provide complete information and details which will enable the ordinary person to obtain a loan with some or all of the following characteristics:
(a) loans from $1,000 to $50,000;
(b) obtained overnight;
(c) regardless of borrower's previous credit history or background;
(d) repaid at borrower's convenience;
(e) below prevailing interest rates;
(f) without interviews, collateral or cosigners.
"2. Respondents have a unique financing plan that will enable the ordinary person ot obtain a loan with the characteristics identified in paragraph IV(1) above.
"3. Respondents are the source of the loan referred to in their advertisements."
In its Answer Respondent admitted making the representations in subparagraphs 1(a), (d), (e), and (f). The remaining allegations of the Complaint were denied. With its Answer Respondent filed a Motion to Dismiss, alleging improper service, insufficient evidence, and inadequate investigation. By Order dated June 28, 1982, Respondent's motion was denied. Thereafter, a hearing was held at which Complainant presented evidence in support of the allegations of the Complaint. Respondent did not appear at the hearing. On the basis of the evidence presented, the Administrative Law Judge issued an Initial Decision in which he concluded that Respondent makes the representations alleged in paragraph IV, subparagraphs 1 and 2, and that they are materially false. Respondent filed a timely appeal from the Initial Decision.
Respondent's sole contention on appeal is that the Complaint was not properly served on Jack W. Payne, one of the Respondents named in the caption of this proceeding. Respondent does not contest the propriety of the service of the Complaint on the other named Respondent, Spectrum, at 120 Wall Street, New York, New York 10005.
The facts relating to service of the Complaint do not appear to be in dispute. On June 5, 1982, the Complaint and Notice of Answer and Hearing were delivered to 6409 Parkwood Way, Paradise, California 95969, the address stated in the Complaint for the Respondent, Jack W. Payne. The delivery receipt was signed by R. Payne. According to Respondent, Jack W. Payne was out of town on June 5, 1982 (Appeal, p. 1), and his son, Ronald J. Payne, who was not his agent, but only a visitor in his home, signed the delivery receipt at the request of the Postal Service employee making delivery. The Postal Service employee made no effort to assure that R. Payne was an agent of Jack W. Payne. While the record does not establish precisely when Jack W. Payne actually received the Complaint, it does establish actual receipt by him most probably on June 8, 1982 (see Motion to Dismiss, p. 4).
Respondent complains that such service was improper under 39 C.F.R. § 952.8, and that it was deprived of a full 15 days in which to file its Answer and take other appropriate measures to prepare for litigation.
Delivery to 6409 Parkwood Way, Paradise, California 95969, and acceptance of service at that address by a person appearing to have authority to receive service is sufficient to satisfy the requirements of 39 C.F.R. § 952.8(a). Moreover, actual receipt by the named Respondent is evidenced by his filing of a timely Answer and a Motion to Dismiss. Had Mr. Payne needed additional time in which to file his Answer or prepare for the hearing he could have filed a timely motion showing good cause why such extension should be granted. This he did not do. Furthermore, there is no basis for finding that Respondent did not have sufficient time to prepare its defense to the Complaint, to obtain counsel or to take any other actions it may have considered appropriate. Finally, proper service was obtained at the New York address and, by Respondent's own admission, all mail received at that address was forwarded to Jack W. Payne (see Answer, paragraph III).
After consideration of the entire record and Respondent's appeal, it is concluded that proper service of the Complaint was obtained and that Respondent is engaged in a scheme to obtain money through the mails by means of materially false representations. Accordingly, Respondent's appeal is denied and a remedial order under 39 U.S.C. § 3005 is being issued with this decision.