Proving a bona fide error defense in a Fair Debt Collection Practices Act (FDCPA) litigation can be a challenging task, as it requires the debt collector to show that it had implemented reasonable procedures to avoid any errors, and that the error that occurred was not the result of the debt collector’s violation of the FDCPA.
In order to prove a bona fide error defense, the debt collector must be able to demonstrate that:
- It had in place reasonable procedures to avoid the errors;
- The error was not the result of a violation of the FDCPA, but rather, occurred despite the procedures in place;
- The error occurred as a result of an unintentional act or an unintentional system malfunction;
- The error was not the result of a pattern or practice of noncompliance;
- The error was corrected as soon as it was discovered.
It is also important to note that the FDCPA also allows for an affirmative defense to a claim under the Act if the violation was not intentional and resulted from a bona fide error despite the maintenance of procedures reasonably adapted to avoid any such error.
The debt collector should be able to provide evidence of the reasonable procedures that were in place, the specific error that occurred, and the steps that were taken to correct it. It’s also important to note that the burden of proof is on the debt collector to demonstrate that the error was bona fide and that the FDCPA was not violated.
It’s always recommended to consult with an attorney who is knowledgeable in the FDCPA and the case law interpreting it to understand the specific details of a case.
