Know Thyne Enemy!

Sun Tsu wrote, in "The Art Of War";

"Know Thyne Enemy, Better Than Thyself".


Here's the CA's and CRA's favorite affirmative defense;


The Bona Fide Error Defense.

("Oh geez your honor, we didn't mean to")


http://www.franzen-salzano.com/publications/FDCPA Defense.doc

(This paper by the enemy firm is must read material. It lays out, in detail, numerous DEFENSE strategies for defendant CA's and CRA's. It also substantiates the proclamations of many of the vets here on CreditNet, as well as many legal cites that the enemy will attempt to use against you.

Compliments of Cristine B.)



II. AFFIRMATIVE DEFENSE

The FDCPA is a strict liability statute with extraordinarily broad provisions designed to encourage suits by â??private attorneys general.â? In an effort to further the Actâ??s remedial objectives and carry out the findings and purposes specified in 15 U.S.C. §1692, courts adhere to the strict â??plain meaningâ? rule of statutory interpretation in the absence of unclear or ambiguous language. As a result, the only defenses available to FDCPA claims are provided by the Act. Any purported defense not expressly provided by the FDCPA is not available to defeat an FDCPA claim.

A. Maintenance of Procedures Reasonably Adapted to Avoid Bona Fide Error Resulting in Unintentional Violations

15 U.S.C. §1692k(c) provides that:

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 such error.

Similar to a provision found in the Truth in Lending Act, the bona fide error exception provides a complete defense to a debt collectorâ??s violation of any substantive provision of the FDCPA. At first blush this provision appears to provide a shield to those suits which are based upon only minor or technical violations of the Act. However, the bona fide error defense has rarely been invoked successfully. In general, courts have rigorously scrutinized the elements of this defense and have been quite unwilling to accept arguments that minor or technical violations in and of themselves present a valid defense under the bona fide error exception.


Transworld violates a Cease And Desist.


1. The Error Was Unintentional

In Smith v. Transworld Airlines, Inc., the Sixth Circuit upheld the bona fide error defense finding that Transworld had not acted intentionally in violating the Act. After having been initially contacted by Transworld, the plaintiff issued a cease and desist letter to the address indicated on the original dunning letter, Transworldâ??s Columbus, Ohio office. Approximately one day later, Transworldâ??s California headquarters, unaware of the cease and desist letter, issued another dunning letter. The Court held that Transworld had not intended to violate the Act and maintained procedures designed to prevent such errors. Despite this finding, Circuit Judge Krupansky sharply dissented concluding that:

â??â?¦Transworld has intentionally structured and implemented a system that defies compliance with the absolute duty mandated by section 1692c(c)â?¦and [Transworld] is liable under section 1692c(c) for communicating with Smith after it had received his cease and desist letter.â?

Despite Transworldâ??s successful assertion of the bona fide error defense, Judge Krupanskyâ??s dissent indicates the potential for judicial expansion of the concept of â??intentâ? beyond the mere desire that an action occur which ultimately results in a violation of the Act.

Further, it should be noted that (as with each element of the bona fide error defense) intentional conduct is not â??unintentionalâ? simply because the defendant did not believe that his conduct violated the law. Lack of intent to violate the FDCPA is not enough; the error itself must be inadvertent to be unintentional.


2. Was The Result Of A Bona Fide Error

With few exceptions, the bona fide error defense will only apply to clerical mistakes (1) and not mistaken advice of counsel or mistakes in law, even when made in good faith. Generally, innocent error of fact, scrivenerâ??s error or mechanical malfunction leading to inaccuracy in communication will suffice. Because vigilance is implicitly required under the Act, such errors must be presented as an isolated occurrence which necessarily arise in the operation of a business and one relatively unpreventable. (2)

(1) This is why your papertrail is so critical. It's hard to stand up there and proclaim it was all an accident or clerical error when you filed 3, 4 or 5 CRRR letters notifying them of their mistake/wrong doing.

(2) Be advised, they will ALWAYS present their error as an isolated, one time, unintentional event. (Even though they do it all day, every day.)