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CEB Prac. Guide § 2A.59 -- Defenses -- Statutory Safe Harbor for Bona Fide Errors -- Mistakes of Fact or Law

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In Kaiser v. Cascade Capital, LLC, 2021 U.S. App. LEXIS 6754, the Ninth Circuit Court of Appeals reversed the ruling of the District Court for the District of Oregon that granted a motion to dismiss where the District Court reasoned the debt collector did not violate the FDCPA prohibitions on attempting to collect on a time barred debt because the… Read More

In Hanrahan v. Statewide Collection, Inc., No. 19-cv-00157-MMC, 2020 U.S. Dist. LEXIS 242290 (N.D. Cal. Dec. 23, 2020), Judge Chesney granted partial summary judgment to a Rosenthal Act Plaintiff.  She held that the bond fide error rule can apply to mistakes of fact, but not where the mistake occurred with respect to a well-publicized error made by the debt collector.… Read More

In Mercedes v. Nat'l Bus. Factors, No. 19-16055, 2020 U.S. App. LEXIS 25996 (9th Cir. Aug. 17, 2020), the Court of Appeals for the Ninth Circuit rejected application of the bona fide error defense where the debt collector outsourced its compliance obligations through a boilerplate agreement with the creditor. The parties do not dispute that NBF unintentionally violated the FDCPA… Read More

In Williams v. Enhanced Recovery Co., LLC, No. 18-cv-03699-HSG, 2019 U.S. Dist. LEXIS 137631 (N.D. Cal. Aug. 14, 2019), Judge Gilliam granted summary judgment to a debt collector. The Court finds that ERC has carried its burden to establish an entitlement to the bona fide error defense, and the Court thus does not consider whether there is a material dispute… Read More

In DiNaples v. MRS BPO, LLC, No. 18-2972, 2019 U.S. App. LEXIS 23937 (3d Cir. Aug. 12, 2019), the Court of Appeals extended its Douglass decision to QR codes. There is no dispute that that provision plainly prohibits the QR code. Still, as other courts have observed, § 1692f(8) is rather expansive when read literally. It would seemingly prohibit including… Read More

In Verburg v. Weltman, Weinberg & Reis Co., L.P.A., 2018 WL 346834, at *2–3 (W.D.Mich., 2018), Judge Jonker granted an FDCPA Plaintiff's Motion in Limine to exclude a debt collector's reliance on the bona fide error defense. Lacking binding authority directly on point, the Court concludes that an affirmative defense based on mistake of state law is not available to… Read More

In Daubert v. NRA Group., LLC, 2017 WL 2836808, at *4–5 (C.A.3 (Pa.), 2017), the Court of Appeals for the Third Circuit found that a medical debt servicer did not meet its burden of demonstrating that it or its assignor received consent. The Sixth Circuit found prior express consent where the plaintiffs gave their cell numbers to a hospital-intermediary in… Read More

In Pasquale v. Law Offices of Nelson & Kennard, 2013 WL 1618020 (N.D.Cal. 2013), Judge Spero held that a debt collection law firm violated the FDCPA by failing to identify in subsequent voicemail messages to a debtor that it was a debt collector under 15 USC 1692e(11), but that its failure to do so was entitled to protection under the… Read More

In Engelen v. Erin Capital Management, 2012 WL 12680 (S.D.Cal. 2012), Judge Benitez found applicable the debt collector’s affirmative defense of ‘bona fide’ error when the debt collector continued to collect on an obligation that already had been satisfied due to garnishment.  The facts were as follows.  On December 5, 2007, Erin, with Eltman acting as legal counsel, brought a… Read More

In Coleman v. Credit Management, here, Judge Lynn held that section 1692c of the FDCPA – related to communications with consumers at inconvenient times or places – does not apply to non-consumers.   Even though §1692d – related to harassing any person -- does apply to non-consumers, the section is not violated where the debt collector only makes fourteen phone calls in… Read More

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