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

In Mercedes v. Nat'l Bus. Factors, No. 19-16055, 2020 U.S. App. LEXIS 35037, at *2-3 (9th Cir. Nov. 5, 2020), the Court of Appeals for the Ninth Circuit held that a debt collector does not discharge its FDCPA obligations and trigger the bona fide error defense by requiring its creditor/clients to give accurate information. In this appeal, we consider whether… Read More

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

In Wiebe v. Zakheim & Lavrar, P.A., 2012 WL 5382181 (M.D.Fla. 2012), Judge Smith found that a debt collector had adequately pleaded facts supporting a ‘bona fide error’ affirmative defense. The Defendant's First Affirmative Defense of “bona fide error,” is based upon 15 U.S.C. § 1692k(c) which provides that under the FDCPA, a debt collector is shielded from liability if… Read More

In Tourgeman v. Collins Financial Services, Inc.,  2012 WL 3731807 (S.D.Cal. 2012), Judge Bencivengo rejected a Plaintiff’s FDCPA claim grounded on a Creditor’s collection firm’s misidentification of the creditor and account number in collection correspondence and, ultimately, in a collection lawsuit.  Judge Bencivengo addressed the liability of the creditor/debt collector for this mistake.  Judge Bencivengo found the misidentification not material… 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 McCullough v. Johnson, et. al., here, the Court of Appeals for the Ninth Circuit affirmed a large jury verdict against a debt collection law firm arising from the Firm's prosecution of a debt collection lawsuit. The facts, briefly stated, are as follows: A debt collection law firm in Montana was retained by a creditor to collect a credit card… Read More

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

In Strom v. National Enterprise Systems, Inc., 2010 WL 1533383 (W.D.N.Y.,2010), Judge Foschio held that a debt collector’s assertion of the bona fide error defense allowed discovery into other complaints so as to allow Plaintiff to attempt to prove that the debt collector’s conduct was not unintentional and the result of a bona fide error.  Judge Foschio framed the issue… Read More

In Leahey v. Franklin Collection, Inc., the District Court for the Northern District of Alabama found that an answering message heard by a third party still violated the FDCPA and Hosseinzadeh v. M.R.S. Assoc., Inc. 387 F.Supp.2d 1104 (C.D.Cal. 2005) notwithstanding a 3-second pause and instructions for third parties not to listen to the message.  A copy of the decision… Read More

We noted that the U.S. Supreme Court has taken up the issue of the scope of the bona fide error defense to an FDCPA claim in Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA, 2009 WL 803127 (2009). Oral argument was heard yesterday in the Jerman matter, and a transcript of the proceedings can be found here. Read More

On July 7, 2008, the Court of Appeals for the Ninth Circuit in Reichert v. National Credit Systems, Inc. held that, in an action by a debtor against a debt collector under the FDCPA arising out of a debt that the debtor owed a former landlord, the debt collector bore the burden of proving the bona fide error defense.  The… Read More