In court Thursday, I had materials and arguements prepared based on FCRA & FDCPA. The CA argued 1692g. (I was unfortunately at a loss as I had no clue about the code.) The CA is citing this defense: c) Intent A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. What exactly is the difference (advantage/disadvantage) of USC and FCRA/FDCPA? Also, any ideas on how to argue against his defense of "intent"? He is planing on saying he pursued this in "good faith".
15 USC ? 1692g vs FCRA / FDCPA See artofcredit.com for an on-going discussions on bona fide errors, and how to challenge claims of them. There appears to be case law that it takes more than just stating it was an accident to avoid liability.
15 USC ? 1692g vs FCRA / FDCPA Well now I feel like an idiot! Too much cold medicine I guess... realizing a bit too late that 1692 IS FDCPA. Sorry. Other input requested is still welcome.. reading what Ontrack recommended too.
That citation is for their ONLY affirmative defense. Bona Fide Error. It's not a cake walk for them to prove that an error is BONA FIDE though... Just because they made a mistake, doesn't mean that that error is bona fide. Just because a CA mis-reads, or mis-interprets the law, although they made a mistake, that error is not bona fide, because they did not have proper proceedures in place to prevent the non-compliance. § 813. Civil liability [15 USC 1692k] (c) A debt collector may not be held liable in any action brought under this title if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. The key is that for the error to be bona fide, they must prove not only their INTENT, but that despite comprehensive policies designed to prevent the possibility of that error occurring, *AND* despite the fact that those policies were followed, somehow by some unexplainable fluke they still made the error. This is one of the reasons why it is better to have a papertrail which supports more than one error, the more errors which occurred, the harder it is for them to attempt to argue that the errors were bona fide.
Re: 15 USC ? 1692g vs FCRA / FDCPA Oh yes. The statute says "by a preponderence of evidence". SO make them drag out every item of evidence you can think of. This is time consuming, and costly for them. Sometimes we lose these. But it's never without cost to your adversary.
