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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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District Court (Cal.) Says Debt Collector Can Use Reasonable Policies and Procedures Defense to Establish that It Did Not Receive Debtor’s Dispute Letter

by Scott J. Hyman |

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

3rd Cir. Extends Douglass “Glassine Window” FDCPA Case to QR Codes on the Outside of Envelopes

by Scott J. Hyman |

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

District Court (Mich.) Grants Motion in Limine Precluding Debt Collector From Asserting Bona Fide Error Premised on Misinterpretation of Underlying State Law Regarding the Debt

by Scott J. Hyman |

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

3rd Circuit Says Medical Debt Servicer Failed to Meet its Burden that TCPA Plaintiff Consented to Receive Calls; No “Bona-fide” Error Defense Was Available Under the FDCPA for a “Glassine Window” Violation Because the Error was an Error of Law

by Scott J. Hyman |

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

District Court (Cal.) Says Debt Collector Violated “Meaningful Disclosure” By Not Giving (Partial) Mini-Miranda in V/M Messages, But Was Entitled To Bona Fide Error Protection

by Scott J. Hyman |

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

District Court (Cal.) Grants MSJ on Debt Collector’s Bona Fide Error Defense where Debt Collector Continued to Collect on Satisfied Account

by Scott J. Hyman |

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

District Court (Tex.) Holds FDCPA Affords Limited Protection to Non-Consumers; Might Not Protect Transient Telephone Number Against Out-of-Time-Zone Calls

by Scott J. Hyman |

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

District Court (Colo.) Distinguishes 9th Circuit’s McCullough Decision, Finds For Debt Collector under 6th Circuit Precedent

by Scott J. Hyman |

In Vester v. Asset Acceptance, L.L.C., 2011 WL 4591948 (D.Colo. 2011), Judge Krieger was asked to reconsider an FDCPA ruling adverse to the consumer on the basis that the 9th Circuit’s decision in McCullough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939 (9th Cir.2011) and its holding regarding the evidentiary value of generic credit card agreements to prove-up a… Read More

Eleventh Circuit Allows Post-Jerman Assertion of Bona Fide Error, But Finds that the Defense Falls Short

by Scott J. Hyman |

In Owen v. I.C. System, Inc. --- F.3d ----, 2011 WL 43525 (11th Cir. 2011), the Court of Appeals for the Eleventh Circuit gave guidance in the post-Jerman world on the application of the bona-fide error defense. The Court explained that a ‘legal error’ under Jerman actually requires some exercise of legal judgment, explaining: There is no evidence, nor does… Read More

District Court (Cal.) Grants Summary Judgment (and Denies Reconsideration) on FDCPA Harassment Claim

by Scott J. Hyman |

The FDCPA offers no definitive number on how many telephone calls constitutes harassment under 15 U.S.C. 1692d(5) and Civil Code 1788.11(e).  Recent jurisprudence, at least under the FDCPA, has suggested that a showing of pattern, intent, and consumer complaints about the excessive calls may be required.  For example, in Winberry v. United Collection Bureau, Inc., 2010 WL 996144 (M.D.Ala. 2010), Judge… Read More

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