Effective, Experienced, Exceptional.

CEB Prac. Guide § 2A.58 -- Defenses -- Statutory Safe Harbor for Bona Fide Errors -- Standard of Proof

Subscribe to Consumer Finance

Thank you for your desire to subscribe to Severson & Werson’s Consumer Finance Weblog. In order to subscribe, you must provide a valid name and e-mail address. This too will be retained on our server. When you push the “subscribe button”, we will send an electronic mail to the address that you provided asking you to confirm your subscription to our Weblog. By pushing the “subscribe button”, you represent and warrant that you are over the age of 18 years old, are the owner/authorized user of that e-mail address, and are entitled to receive e-mails at that address. Our weblog will retain your name and e-mail address on its server, or the server of its web host. However, we won’t share any of this information with anyone except the Firm’s employees and contractors, except under certain extraordinary circumstances described on our Privacy Policy and (About The Consumer Finance Blog/About the Appellate Tracker Weblog) Page. NOTICE AND AGREEMENT REGARDING E-MAILS AND CALLS/TEXT MESSAGES TO LAND-LINE AND WIRELESS TELEPHONES: By providing your contact information and confirming your subscription in response to the initial e-mail that we send you, you agree to receive e-mail messages from Severson & Werson from time-to-time and understand and agree that such messages are or may be sent by means of automated dialing technology. If you have your email forwarded to other electronic media, including text messages and cellular telephone by way of VoIP, internet, social media, or otherwise, you agree to receive my messages in that way. This may result in charges to you. Your agreement and consent also extend to any other agents, affiliates, or entities to whom our communications are forwarded. You agree that you will notify Severson & Werson in writing if you revoke this agreement and that your revocation will not be effective until you notify Severson & Werson in writing. You understand and agree that you will afford Severson & Werson a reasonable time to unsubscribe you from the website, that the ability to do so depends on Severson & Werson’s press of business and access to the weblog, and that you may still receive one or more emails or communications from weblog until we are able to unsubscribe you.

In Abdollahzadeh v. Mandarich Law Grp., LLP, No. 18-1904, 2019 U.S. App. LEXIS 12887, at *2-3 (7th Cir. Apr. 29, 2019), the Court of Appeals for the Seventh Circuit found that a collection attorney could rely on its client's information under the bona fide error rule. Abdollahzadeh challenges that ruling on several grounds. First, he argues that Mandarich's continuation of… Read More

In Bell v. Northland Group.,  2018 WL 1792368, at *1–2 (E.D.Mich., 2018), Judge Michelson found that a debt collector's good faith reliance on information provided by the creditor is not a defense to an FDCPA claim when the debt collector is not relying on a bona fide error defense Northland Group asserts that, because it relied in good faith on… Read More

In Hedayati v. The Perry Law Firm, 2017 WL 4864491, at *7 (C.D.Cal., 2017), Judge Carter held a bench trial regarding the Plaintiff's claim that the defendant wrongfully attempted to collect a debt from him that, in reality, was owed by his brother.  Judge Carter found no false statements made to the Plaintiff, and imposed a reality check on the… Read More

In Buckley v. AFNI, Inc., 2016 WL 70847, at *2-3 (S.D.Ind., 2016), Judge Baker found that a debt collector violated the FCRA and the FDCPA when it initiated collection activities against a bankrupt debtor.  First, the District Court found that the debt collector's pulling of a credit report violated the FCRA because no debt existed post-bankruptcy. Both parties have moved for summary judgment… Read More

In Youssofi v. Allied Interstate LLC, 2016 WL 29625, at *2-3 (S.D.Cal., 2016), Judge Curiel struck an FDCPA defendant's assertion of FDCPA pre-emption over the Rosenthal Act. Plaintiff argues that these affirmative defenses fail as a matter of law and cites to the holding in Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055 (9th Cir. 2011). Defendant opposes contending… Read More

In Ditlevson v. Legal Express, Ltd., 2015 WL 7454147, at *1-2 (N.D.Cal., 2015), Judge Chesney found that a Rosenthal Act defendant must plead specific facts to support a bona fide error affirmative defense, and cannot plead the litigation privilege as an affirmative defense at all. In the Third Affirmative Defense, Legal Express alleges that “any violation was unintentional and resulted despite the… Read More

In Camacho v. Jefferson Capital Systems, LLC, 2015 WL 5569082 (N.D.Cal., 2015), Judge Freeman granted an FDCPA Plaintiff's summary judgment motion despite the Defendant's claim of bona fide error protection. According to Defendant, the collection letters sent to Plaintiff actually contained two violations of the FDCPA and RFDCPA. The first violation resulted from Defendant sending a letter directly to Plaintiff in violation… Read More

In Camacho v. Jefferson Capital Sys., LLC, 2015 WL 3454070, at *3-4 (N.D. Cal. 2015), Judge Freeman rejected a debt collector's contention that the words used by the debtor's counsel did not convey that the debtor was represented by counsel. Under both the FDCPA and Rosenthal Act, a debt collector may not directly communicate with an individual debtor in connection… Read More

In Roadhouse v. Patenaude & Felix, A.P.C. , 2015 WL 1691885  (D.Nev. 2015), Judge Navarro denied a debt collector’s Motion for Summary Judgment based on the bona-fide error defense because the debt collector continued to prosecute the underlying debt collection lawsuit despite knowledge provided by the debtor that the statute of limitations had run on the obligation. Defendant asserts that… Read More

In Libby v. Alessi & Koenig, LLC, 2014 WL 5506794 (D.Nev. 2014), Judge Mahan granted summary judgment to a debt collector on the “bona fide error” defense. On December 27, 2012, defendant sent plaintiff a letter advising that the defendant would be taking over the foreclosure process. (See doc. # 10). The December 27, 2012 letter contained language warning plaintiff… Read More

1 2