In Seeger v. AFNI, Inc., — F.3d — 2008 WL 512416 (7th Cir. 2008), the Court of Appeals for the Seventh Circuit addressed a debt collector’s contention that its reliance on periodic bulletins from the American Creditor Association (“ACA”) gave rise to a ‘bona fide error’ defense to the plaintiff’s claim that, under Wisconsin law, the debt collector could not add a 15% fee to the debt at issue. After acknowledging a split of authority amongst the circuit courts as to whether the FDCPA’s bona fide error defense applies to errors of law, the Court of Appeals held the debt collector could not avail itself of the defense regardless of which side of the split the Court of Appeals adopted:
We have no need to take sides on the circuit split in this case, because even assuming that AFNI’s mistake was a mistake of law, it cannot prevail for other reasons. Unless a party maintains reasonable procedures to avert a violation, the defense does not apply. Here, AFNI argues that it maintained such procedures to prevent collecting unauthorized fees because it has a compliance committee that review legal summaries prepared by the American Creditor Association (“ACA”) and the Debt Bar Association. AFNI also submits its form letters to the ACA. Hess testified that he regularly reads excerpts of the relevant Wisconsin statutes. The plaintiffs respond that AFNI’s procedures are inadequate as a matter of law. The ACA addresses only compliance with the FDCPA, not with Wisconsin law or individual contracts. AFNI never consulted an attorney in Wisconsin on state law issues, nor did it ask a Wisconsin governmental agency whether it was entitled to charge a collection fee as the owner of the debt. . . ¶ . . . In the end, AFNI is not arguing that it relied on an informed but mistaken, legal opinion. It is saying that its ignorance of the law should be excused because it attempted to keep itself informed about the law through various trade communications. This is not enough, in our view, to support the bona fide error defense.