4.24.2007

D. Connecticut Notes Split Re: Whether Bona Fide Error Defense Applies to Mistakes of Law

Per Gervais v. Riddle & Associates, P.C., --- F. Supp. 2d ----, 2007 WL 867986 (D. Conn. Mar. 19, 2007):

In its prior Ruling, this Court held that Defendant could not avail itself of the "bona-fide error" ("BFE") defense provided under § 1692k(c) of the FDCPA. Section 1692k(c) provides:

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. Upon reconsideration, this Court affirms its prior holding.

It is undisputed that Defendant's communications to Plaintiff were intentional. However, Defendant argues that it is entitled to the BFE defense because it did not subjectively intend to violate the FDCPA. (Def.'s Mot. Recons. 21.) However, as the Seventh Circuit noted in Neilson v. Dickerson, 307 F.3d 623, 641 (7th Cir.2002), "[t]here is a split of authority among the circuits as to whether the bona fide error defense applies to mistakes of law. The majority view is that the defense is only available for clerical and factual errors." The Second Circuit is included within this majority. See Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 27 (2d Cir. 1989) ("[I]t is likely that the violations which we have found resulted from a mistaken view of the law, which section 1692k(c) does not excuse."); see generally Clomon v. Jackson, 988 F.2d 1314, 1322 (2d Cir. 1993) (rejecting the defense of reliance upon "authoritative interpretations" of the law). Defendant's argument is accordingly without merit. Therefore, upon reconsideration, this Court's prior Ruling denying Defendant's BFE defense under § 1692kc is affirmed.

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