Debt Collector’s Bona Fide Error Defense
The FDCPA provides debt collectors with a bona fide error defense. The statue provides that a debt collector shall not be held liable for the violation if the debt collector can demonstrate by the preponderance of the evidence, that the violation was not intentional and the debt collector maintained procedures reasonably adapted to avoid such errors, as states in 15 U.S.C. Section 1692 (k)(c)
Ernest H. “Skip” Kohlmyer, III, Esq., LL.M, is a litigation attorney and shareholder with Urban Thier Federer & Chinnery, P.A. based in the Orlando office. His practice focuses primarily on insurance defense litigation relating to the Fair Debt Collection Practices Act (“FDCPA”), Florida’s Consumer Collection Practices Act (“FCCPA”), Fair Credit Reporting Act (“FCRA”), and/or the Telephone Consumer Protection Act (“TCPA”).
Mr. Kohlmyer represents collection agencies, debt buyers, Florida public entities in areas in land use, civil rights, constitutional law, consumer protection litigation, corporate and business law, insurance defense, and international business transactions.
In this CLE class clip Mr. Kohlmyer discusses Debt Collector’s Bona Fide Error Defense.
Watch the Full Debt Collection Telephone Calls FDCPA & TCPA Compliance CLE Class
Ernest H. Kohlmyer, III, Esq., LL.M.
Urban, Thier, Federer & Chinnery, P.A.
200 South Orange Avenue, Suite 2000
Orlando, Florida 32801
This defense is effective against alleged violations that are clerical in nature and not effective against alleged violations of harassment or abuse. Prior to 2010 the bona fide error defense was pretty broad, it covered mistakes of the facts of a case, clerical mistakes, and questions of law.
In a case that came out in the United States Supreme Court call German, the US Supreme Court stripped out the questions of law, which takes the bona fide error defense down to strickly mistakes of the facts. The bona fide error defense remains effective, it has not been entirely stripped of its powers.
The majority of the violations by debt collectors, are those clerical in nature, or those factual in nature. Particularly, in the case where a debt collector receives information about attorney representation, the policy is to code this information into the computer in a certain way that stops all collection calls and notifications. In the case where an employee mishandles the information and debt collection efforts do not cease, the debt collection agency is then in violation.
For more important information on Debt Collector’s Bona Fide Error Defense, check out the full CLE class video by Ernest H. “Skip” Kohlmyer, III, Esq., LL.M.