Alabama FDCPA — Bona Fide Error — “We Abused You But That’s OK”

Alabama FDCPA — Bona Fide Error — “We Abused You But That’s OK”

When debt collectors get caught breaking the law and violating the FDCPA (Fair Debt Collection Practices Act), they often plead a defense called “Bona Fide Error.”

In every day language this means “We abused you, we got caught, but hey we have a policy against this so we should get off the hook, right?”

An affirmative defense is where the collector says “OK, we did it, but you can’t hold us liable.”

This may be because of statute of limitations, someone else is responsible, etc.

One is this “bona fide error” but as a practical matter this is not much of a defense in 99% of the cases in federal court.

The reason is the debt collector must prove it had a process to avoid the violation of the law.

They also have to prove that they actually tried to follow the system.

Now every debt collector says in its policy manuals “Don’t violate the FDCPA” but that’s not enough.

Otherwise there would be no FDCPA lawsuits.

The collector has to prove it has the “burden of proof.”

They have to prove that it actually enforces this system and that the error was an accident, not intentional.

In our cases we find the collectors are violating the law with the blessing of the supervisors — if not the requirements of the supervisors — so the bona fide error doesn’t work.

In our experience the good defense lawyers won’t plead this defense because of what it opens the debt collector up to in the discovery process (depositions, etc).

However, the less skilled defense lawyers will plead it.

We won’t go into all of the bad consequences here as we would prefer more debt collectors we sue use this defense but I doubt it will happen.

Anyway, we hope this is helpful as you may have been wondering what in the world this defense was as you read through an answer or perhaps a court opinion.

Contact Us.

If you are not represented by a lawyer who is suing a collector for you, give us a call.

We represent consumers all over Alabama.

You can reach us by phone at 205-879-2447.

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Thanks for reading, and have a great day!

-John G. Watts