3. Interpreting “violation not intentional” to exclude legal error conflicts with similar language in § 1692k(b).
Petitioner’s interpretation of the phrase “violation was not intentional” leads to similar problems when construed with the phrase “the extent to which the debt collector’s non-compliance was intentional” in § 1692k(b). (Emphasis added).
Section 1692k sets forth the parameters of a debt collector’s civil liability for FDCPA violations. The damage sections would apply where a debt collector was found to have violated an FDCPA provision and was unsuccessful in asserting either the bona fide error or safe harbor defenses. Section 1692k(a) provides that “any debt collector who fails to comply with any provision of this subchapter . . . is liable. . . .” Section § 1692k(a)(1) provides that the consumer is entitled to an award of “any actual damage sustained by such person as a result of such failure.” In addition to actual damages, § 1692k(a)(2)(A) permits a court to award “such additional damages as the court may allow, but not to exceed $1,000” with respect to individual violations, while § 1692k(a)(2)(B) permits additional damages “as the court may allow . . . not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector” for class action violations. Section 1692k(b) defines “factors” that may be considered by a court in awarding additional damages, including “the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional.” See §§ 1692k(b)(1) and (2) (emphasis added).
“‘It is a settled principle of statutory construction that “[w]hen the same word or phrase is used in the same section of an act more than once, and the meaning is clear as used in one place, it will be construed to have the same meaning in the next place.”’”
Mashantucket Pequot Tribe v. Conn., 913 F.2d 1024, 1030 (2nd Cir. 1990) (quoting United States v. Nunez, 573 F.2d 769, 771 (2nd Cir. 1978), in turn quoting Meyer v. United States, 175 F.2d 45, 47 (2nd Cir. 1949), in turn quoting Lewellyn v. Harbison, 31 F.2d 740, 742 (3rd Cir. 1929)). As such, the adjective “intentional” should be read to modify “noncompliance” in § 1692k(b) in the same manner it modifies “violation” in § 1692k(c). Under petitioner’s suggested interpretation, the following words must be added to § 1692k(b):
the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which [the act constituting] such noncompliance was intentional.
This construction again leads to an internal conflict. Using the previous example of a violation under § 1692d(5), a debt collector’s intent to commit the “act” constituting a violation of the statute cannot logically be viewed as a factor justifying the assessment of additional damages under § 1692k(b). The debt collector’s liability for the violation of § 1692d(5) would have, by necessity, already required proof of the debt collector’s “intent to annoy, abuse, or harass.” Petitioner’s inconsistent construction of the adjective “intentional” is problematic when juxtaposed with the factors a court considers in awarding additional damages under § 1692k(b).
D. The Plain Language Of The Bona Fide Error Defense Does Not Exculpate Debt Collectors Who Are Ignorant Of The Law
Petitioner resorts to sources outside the plain text of the FDCPA in attempting to demonstrate that the bona fide error defense excludes legal errors. Petitioner argues that the phrase “violation was not intentional” must be restricted to “acts” constituting an infraction of the statute, based on the criminal law maxim that “ignorance of the law is no defense.” Petitioner relies on this argument as a means to inject a meaning into the bona fide error defense that is otherwise not apparent from the actual text. The reliance on this criminal law maxim is unpersuasive because it is predicated on a false premise – that respondents’ error in legal judgment was the result of “ignorance of the law.” The characterization of respondents’ violation as “ignorance of the law” is absurd. The conduct found to be in violation of the FDCPA (the issuance of a letter requiring a response “in writing”) was predicated upon a reasonable analysis of existing case law in an effort to comply with the statute.
Importantly, the bona fide error defense is not an exception to the criminal law maxim that “ignorance of the law is no defense.” Although this affirmative defense includes legal errors, it excludes ignorance as a basis for establishing the defense. In ordinary English, “ignorance” means “[t]he condition of being uneducated, unaware, or uninformed.” THE AMERICAN HERITAGE COLLEGE DICTIONARY 675 (3rd ed. 1997). While ignorance may be asserted to establish that a legal error was unintentional under the bona fide error defense, by its very definition, ignorance would prove that a debt collector did not act in good faith or maintain procedures reasonably adapted to avoid any such error. See, e.g., Seeger v. AFNI, 548 F.3d 1107, 1114 (7th Cir. 2008) (holding that the defendant’s procedures to avoid the error were not reasonable and, thus, application of the bona fide error defense would reward the defendant’s ignorance of the law).
Moreover, petitioner does not cite any authority applying the criminal law maxim, “ignorance of the law is no defense,” in the context of a civil statute containing an affirmative defense.10 In fact, the very existence of the bona fide error defense in the FDCPA constitutes an expression of congressional intent that a debt collector should not be liable if the criteria of the defense are satisfied. The rigors of the bona fide error defense ensure this result. While the intent prong of the defense is a subjective test, the good faith and reasonable procedures prongs are subject to an objective test. See Drossin v. Nat’l Action Fin. Servs., 641 F.Supp.2d 1314, 1321 (2009). A debt collector’s satisfaction of both the subjective and objective prongs of this affirmative defense ensures that a debt collector cannot be exempted from civil liability based on “ignorance of the law.”
The absurdity of petitioner’s proposition is best illustrated by the holding in this case. The district court did not find that respondents were ignorant of
------------------------------------------------------------------------------------------------------------------
10 Further, petitioner’s suggestion that the bona fide error defense operates as a “qualified immunity” is specious. A “qualified immunity” exists until such time as the immune party acts outside the scope of the immunity. See Anderson v. Creighton, 483 U.S. 635, 638 (1987); see also Thomas v. Whalen, 51 F.3d 1285, 1289 (6th Cir. 1995). The bona fide error defense, however, is not implicated until a debt collector satisfies, by a preponderance of the evidence, the three prongs of the defense.
------------------------------------------------------------------------------------------------------------------
the law – rather it found just the opposite – that respondents had knowledge and awareness of existing case law. Stated differently, respondents’ violation of the statute was subjectively found to be unintentional because they relied on existing case law. In addition, their reliance was objectively found to be made in good faith while maintaining procedures reasonably adapted to avoid any such error. This is precisely why the district court concluded that “[g]iven the unsettled law that existed on this issue, no procedure could have lead defendants to know that this Court would find an FDCPA violation in the validation notice sent to plaintiff.” Pet. App. 39a.
1. Petitioner’s analysis of unrelated federal statutes is a red herring and based on a false premise.
Petitioner asserts that a survey of language utilized in various federal statutes demonstrates that when Congress wants to exempt a criminal or civil violation from the maxim “ignorance of the law is no defense,” it does so through the use of an express term of art. Specifically, petitioner contends that when Congress uses the phrase “willful violation” in a statute, it intends the violation to require proof that a defendant acted with knowledge that his conduct was unlawful. Conversely, when Congress uses the phrase “knowing violation” in a statute, it means “‘factual knowledge as distinguished from knowledge of the law.’” Pet. Merit Br. 18 (citing Bryan v. United States, 524 U.S. 184, 192 (1998)). According to petitioner, a “knowing violation” only requires a showing that the “act” violating a statute was intentional – not that the violation itself was intentional. Petitioner concludes that because Congress failed to use the word “willful” in § 1692k(c), the phrase “violation was not intentional” must only require a showing that the “act” constituting the violation was not intentional.
1. This argument is a red herring for several reasons. First, it focuses on statutory language not contained in the bona fide error defense. Second, petitioner fails to cite a single case analyzing the word “intentional” in conjunction with the word “violation.” Third, petitioner’s “survey” does not analyze the maxim “ignorance of the law” in the context of a statutory affirmative defense. Finally, petitioner’s entire discussion fails to recognize important distinctions between statutory construction of criminal and civil statutes. A proper recognition of these differences eviscerates petitioner’s argument.
2. Further, petitioner’s position is based on the false premise that “willful” has a distinct statutory meaning. In Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007), this Court examined use of the word “willfully” in the context of the Fair Credit Reporting Act (“FCRA”) and stated “[w]e have said before that “willfully” is a “word of many meanings whose construction is often dependent on the context in which it appears.” Id. at 57. This Court went on to note that the term “willful” has different meanings in criminal and civil statutes. In the context of a civil statute, “willfulness” generally applies to both reckless and knowing violations. In the criminal context, “willful” means “limiting liability to knowing violations.”11 Id. at 59, n.9. This Court concluded that the term “knowing violations” of the FCRA must be a “more serious subcategory of willful ones,” meaning that a knowing violation requires actual knowledge that the conduct was unlawful.12 This is in direct contradiction to petitioner’s argument that a “knowing violation” only requires “factual knowledge as distinguished from knowledge of the law.” Pet. Merit Br. 18.
In sum, petitioner’s linguistic exercise focuses on language not contained in the bona fide error defense, wrongfully presumes a standardized meaning of statutory terms, and fails to give recognition to the different usage of the terms in civil and criminal statutes. Moreover, petitioner’s authority focuses on
------------------------------------------------------------------------------------------------------------------
11 Like petitioner, the United States argues that Congress uses the word “willfully” as a term of art when it intends to require a defendant to have knowledge of his unlawful conduct. See Brief for the United States as Amicus Curiae Supporting Petitioner, 11 [hereinafter U.S. Br.]. Notably, however, the United States later concedes that: “In Bryan v. United States, 524 U.S. 184 (1998), [the] Court rejected the contention that, in a criminal statute, ‘the statutory language – “willfully violates any other provision of this chapter” – indicates a congressional intent to attach liability only when a defendant possesses specific knowledge of the “provision[s ] of [the] chapter.”’” Id. at 15 (emphasis added).
12 The United States also recognized this distinction, stating that “when Congress intends for a defendant’s knowledge or reckless disregard of the law to be considered, it commonly uses the term ‘knowingly’ or ‘willfully.’” U.S. Br. 13 (citing Safeco, 551 U.S. at 57).
-------------------------------------------------------------------------------------------------------------------
the necessary criteria to establish liability under a statute, not the elements of an affirmative defense intended to excuse liability upon proof of a good faith mistake, including legal error.
E. Procedures Reasonably Adapted To Avoid Any Such Error
1. Petitioner argues that the bona fide error defense excludes legal errors because it is “awkward” to speak in terms of maintaining procedures reasonably adapted to avoid legal errors. The fallacy of this argument was directly addressed in this case by the Sixth Circuit:
We acknowledge that it is more common to speak of procedures adapted to avoid clerical errors than to speak of procedures adopted to avoid mistakes of law. However, absent a clearer indication that Congress meant to limit the defense to clerical errors, we instead adhere to the unambiguous language of the statute as supported by the available legislative history. Johnson, 305 F.3d at 1123.
We agree with the persuasive reasoning and analysis set forth in Johnson. Indeed, debt collectors may set up “procedures” more often to avoid clerical mistakes, but there is nothing unusual about attorney collectors maintaining procedures, such as frequent education and review of the FDCPA law, in order to avoid mistakes of law.
Pet. App. 13a (emphasis added).
2. Petitioner also contends that the bone fide error defense should exclude legal errors because courts have struggled to define what constitutes “reasonable procedures.” A court’s consideration of “reasonable procedures” in the context of legal errors, however, is no different than the evaluation of a party’s reasonable conduct in most tort cases, including legal malpractice cases. Thus, the inquiry into the maintenance of procedures reasonably adapted to avoid legal errors is not so difficult as to produce an “absurd” result. Given the number of courts that have evaluated the reasonable procedures prong of the bona fide error defense, the workability of the standard has been proven. See infra at Part III, nn.21-23.
3. Finally, petitioner asserts that applying the reasonable procedures requirement to legal errors puts federal courts “in the awkward position of having to establish standards for the professional conduct of attorneys, an area traditionally left to the states.” Pet. Merit Br. 27. Just the opposite is true. If legal errors are removed from the plain language of the bona fide error defense, Congress will have effectively imposed liability on lawyers to non-clients for exercising their professional judgment. See discussion infra at Part III.C.
II. A PLAIN READING OF THE BONA FIDE ERROR DEFENSE DOES NOT RENDER THE FDCPA’S SAFE HARBOR PROVISION INEFFECTIVE OR SUPERFLUOUS
Petitioner argues that the Sixth Circuit’s decision in this case renders the bona fide error defense incompatible and/or superfluous with the safe harbor provision set forth in § 1692k(e). Petitioner broadly characterizes the safe harbor provision as a means for a debt collector to obtain clarification about the FDCPA’s meaning and application, where “legal uncertainty puts debt collectors at risk for liability.” Pet. Merit Br. 28. Petitioner’s suggestion, however, that an advisory opinion is available for all situations involving “legal uncertainty” is overstated. On this point, petitioner acknowledges that the FTC’s authority to render advisory opinions is limited to the requirements of the FDCPA.13 Petitioner further concedes that when a debt collector is faced with uncertainty relative to state or other federal law impacting the FDCPA, the debt collector cannot seek an FTC advisory opinion.
1. Petitioner’s broad characterization of the remedy provided by the safe harbor provision further ignores the FTC’s internal requirements governing the issuance of advisory opinions. FTC Rules of Practice 1.1, 16 C.F.R. § 1.1(a), provides in relevant part:
13 See Pet. Merit Br. Part V.
(a) Any person, partnership, or corporation may request advice from the Commission with respect to a course of action which the requesting party proposes to pursue. The Commission will consider such requests for advice and inform the requesting party of the Commission’s views, where practicable, under the following circumstances:
(1) The matter involves a substantial or novel question of fact or law and there is no clear Commission or court precedent; or
(2) The subject matter of the request and consequent publication of Commission advice is of significant public interest. (Emphasis added).
The “practicability” of obtaining an advisory opinion from the FTC is highly questionable, especially in situations where a lawyer is engaged to initiate litigation and a delay in obtaining an opinion could impact a statute of limitations or otherwise adversely compromise a client’s rights. Obtaining an advisory opinion would be especially troublesome in situations such as foreclosures where time is of the essence and any delay in litigation could result in the value of collateral being substantially impaired.
This “practicability” is also impacted by the FTC’s internal rule that there be “no clear Commission or court precedent.” Given this requirement, it is understandable that the FTC would be reluctant to issue an advisory opinion when there is existing case law. See, e.g., Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 399 (6th Cir. 1998) (observing that the federal courts have uniformly held that an FTC opinion is not binding precedent).14 Further, courts have rejected FTC opinions that conflict with the plain language of the FDCPA.15 See, e.g., Dutton v. Wolpoff & Abramson, 5 F.3d 649, 654 (3rd Cir. 1993); Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1513 (9th Cir. 1994); Scott
v. Jones, 964 F.2d 314, 317 (4th Cir. 1992).
2. Next, the fact that advisory opinions are not binding on courts may create an irreconcilable conflict of interest between attorneys and their clients where a lawyer seeks the protection of the safe harbor provision despite the existence of court precedent favorable to a client’s best interest. In such a situation, a conflict would necessarily arise if the advisory opinion turns out to be inconsistent with existing court precedent, as a lawyer would be placed in the impossible ethical dilemma of deciding whether to assert the favorable court precedent in the best interest of the client, or to act in a manner consistent with the advisory opinion in order to gain personal
-------------------------------------------------------------------------------------------------------------------
14 See also Pressley v. Capital Credit & Collection Serv., Inc., 760 F.2d 922, 925 (9th Cir. 1985); Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1372, n.2 (11th Cir. 1998); Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1327, n.8 (7th Cir. 1997).
15 Further, this Court concluded in Heintz v. Jenkins, 514 U.S. 291, 295 (1995), that Congress did not intend to authorize the FTC to construe the FDCPA in a manner that falls outside the range of reasonable interpretations of the express language.
-----------------------------------------------------------------------------------------------------------------
protection from civil liability under the safe harbor provision.16
3. Finally, petitioner’s characterization of the alleged broad remedy available under the safe harbor provision ignores the undeniable complexity of the meaning and application of the FDCPA.17 This legislation contains few definitions and is applied without the benefit of governing administrative rules and regulations.18 As a result, the complexity of the FDCPA has lead to litigation on virtually every aspect of the Act. See, e.g., 104 AM. JUR. 3D 1 PROOF OF FACTS (2009).
Recognizing this vast complexity, petitioner’s suggestion that a debt collector err on the side of caution or seek a formal advisory opinion from the FTC every time an ambiguity arises to resolve a “legal uncertainty” is both impractical and cost prohibitive, especially when there is existing case law precedent. This position also contravenes a purpose of the FDCPA by failing to provide protection to ethical debt collectors.
Common sense dictates that the bona fide error and safe harbor defenses are not incompatible and superfluous, but rather can and should be construed
-------------------------------------------------------------------------------------------------------------------
16 For further discussion of an attorney’s ethical duties see infra at Part III.C.2.
17 See U.S. Br. 17, referencing the FDCPA as a “complex statutory scheme.”
18 15 U.S.C. § 1692l(d).
------------------------------------------------------------------------------------------------------------------
to work hand-in-hand.19 While debt collectors can seek to insulate themselves from civil liability under the safe harbor provision when there is no existing precedent, the bona fide error defense provides an affirmative defense against civil liability for debt collectors not engaged in abusive debt collection practices. Good faith reliance on existing case law is not an abusive practice.
III. A PLAIN READING OF THE BONA FIDE ERROR DEFENSE TO INCLUDE LEGAL ERRORS IS CONSISTENT WITH THE PURPOSE OF THE FDCPA
A. The Bona Fide Error Defense Is Consistent With The Purpose Of The Statute To Balance The Rights Of Ethical Debt Collectors And Consumers
1. Notwithstanding the remedial purpose of the FDCPA, Congress was also sensitive to the rights of ethical debt collectors. Congress expressly acknowledged that there are two important purposes: (1) to eliminate abusive debt collection practices; while
------------------------------------------------------------------------------------------------------------------
19 The Senate Committee on Banking, Housing and Urban Affairs commented: “A debt collector has no liability, however, if he violates the act in any manner, including with regard to the Act’s coverage, when such violation is unintentional and occurred despite procedures designed to avoid such violations. A debt collector also has no liability if he relied in good faith on an advisory opinion issued by the Federal Trade Commission.” S. Rep. No. 95-382, at 5 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1700. (Emphasis added).
------------------------------------------------------------------------------------------------------------------
(2) not competitively disadvantaging ethical debt collectors. See 15 U.S.C. § 1692(e). The FTC recently acknowledged the necessary role that debt collectors fulfill:
If consumers do not pay their debts, creditors will become less willing to lend money to consumers, or may increase the cost of borrowing money. Creditors typically use collectors to try to recover on debts to decrease the amount of their lost revenues. Debt collection thus helps keep credit available and its cost as low as possible.
FEDERAL TRADE COMMISSION, COLLECTING CONSUMER DEBTS: THE CHALLENGE OF CHANGE iii (2009).20
Petitioner argues that the proverbial apple cart will be upset if the bona fide error defense is applied as broadly as it is written. This argument begs the question. Petitioner assumes the premise she is trying to prove – that Congress intended for the goal of consumer protection to outweigh the interest of an ethical debt collector who relied on a legal error. Not only is her reasoning circular, but it ignores that Congress created the bona fide error to protect good faith, mistaken debt collectors. This defeats any argument that enforcing this defense somehow frustrates the purpose of the statute.
------------------------------------------------------------------------------------------------------------------
20 Available at
http://www.ftc.gov/bcp/workshops/debtcollection/ dcwr.pdf.
------------------------------------------------------------------------------------------------------------------
If Congress meant what it said – that ethical debt collectors warrant protection – it is petitioner who asks the Court to disrupt the balance struck in § 1692k(c). Petitioner does not even try to characterize respondents’ conduct as abusive or harassing. Respondents’ conduct was responsible, conservatively based on case law, and unquestionably ethical. In fact, respondents’ conduct was consistent with the FTC’s recent suggestion that Congress amend the FDCPA to require debt collectors to inform consumers in validation notices that, among other things, “if they send a timely written dispute or request for verification, the debt collector must suspend collection efforts until it has provided the verification in writing.” FEDERAL TRADE COMMISSION, COLLECTING CONSUMER DEBTS: THE CHALLENGE OF CHANGE 27
(2009).
2. The bona fide error defense does not, as petitioner argues, undermine the statute’s deterrent effect, nor will it create “a race to the bottom that will leave the field to collectors with the fewest scruples.” Pet. Merit Br. 32. Petitioner’s assertion that the Sixth Circuit’s decision will embolden debt collector’s to act unethically in a “race to the bottom,” ignores the serious financial penalties contained in the FDCPA under the civil (both individual and class action) and administrative provisions. As the United States indicates, there are significant administrative penalties available under the statute (up to $16,000 a day) for a violation made with actual knowledge. See U.S. Br. 13-14. It is noteworthy that the bona fide error defense has no application to an administrative violation.
Indeed, petitioner’s fear that the floodgates will be opened to unscrupulous debt collectors has not materialized. Since the Sixth Circuit’s decision in this case, respondents have found twenty-one cases where federal courts have considered the bona fide error defense as applied to legal errors. Seven courts denied the defense as a matter of law,21 eleven found issues of fact,22 and three granted
------------------------------------------------------------------------------------------------------------------
21 See Edwards v. Niagara Credit Solutions, Inc., ___ F.3d ___, 2009 WL 3273300 (11th Cir. 2009); Herkert v. MRC Receivables Corp., ___ F.Supp.2d ___, 2009 WL 2998557 (N.D. Ill. 2009); Midland Funding LLC v. Brent, ___ F.Supp.2d ___, 2009 WL 2437243 (N.D. Ohio 2009); Drossin v. Nat’l Action Fin. Servs., Inc., 641 F.Supp.2d 1314 (S.D. Fla. 2009); Ruth v. Triumph P’ships, 577 F.3d 790 (7th Cir. 2009) (although the court did not specifically hold that mistakes of law are included in § 1692k(c), it stated that, even if they are, the debt collector nevertheless failed to establish the defense); Seeger v. AFNI, Inc., 548 F.3d 1107 (7th Cir. 2008) (same); Edwards v. Niagara Credit Solutions, Inc., 586 F.Supp.2d 1346 (N.D. Ga. 2008).
22 See Elder v. David J. Gold, P.C., No. 08CV733A, 2009 WL 2580320 (W.D.N.Y. 2009); Campbell v. Hall, 624 F.Supp.2d 991 (N.D. In. 2009); N. Star Capital Acquisitions, LLC v. Krig, 611 F.Supp.2d 1324 (M.D. Fla. 2009); Basile v. Blatt, Hasenmiller, Leibsker & Moore LLC, 632 F.Supp.2d 842 (N.D. Ill. 2009); Brazier v. Law Offices of Mitchell N. Kay, P.C., No. 8:08-cv-156-t¬17MAP, 2009 WL 764161 (M.D. Fla. 2009); Gaisser v. Portfolio Recovery Assocs., LLC, 593 F.Supp.2d 1297 (S.D. Fla. 2009); Hartman v. Great Seneca Fin. Corp., 569 F.3d 606 (6th Cir. 2009); Miller v. Javitch, Block & Rathbone, 561 F.3d 588 (6th Cir. 2009); Parkis v. Arrow Fin. Servs., LLS, No. 07 C 410, 2008
(Continued on following page)
-------------------------------------------------------------------------------------------------------------------
summary judgment for the debt collector.23
Further, any perceived “race to the bottom” is not being run by ethical debt collectors. As the Sixth Circuit has recognized, the FDCPA has given rise to a class of professional plaintiffs specializing in suing ethical debt collectors for trivial violations:
Ironically, it appears that it is often the extremely sophisticated consumer who takes advantage of the civil liability scheme defined by [the FDCPA], not the individual who has been threatened or misled. The cottage industry that has emerged does not bring suits to remedy the “widespread and serious national problem” of abuse that the Senate observed in adopting the legislation, . . . nor to ferret out collection abuse. . . . Rather, the inescapable inference is that the judicially developed standards have enabled a class of professional plaintiffs. . . .
It is interesting to contemplate the genesis of these suits. The hypothetical Mr. Least Sophisticated Consumer (“LSC”) makes a $400 purchase. His debt remains unpaid and undisputed. He eventually receives a collection letter requesting payment of the debt
WL 94798 (N.D. Ill. 2008); Richburg v. Palisades Collection LLC, 247 F.R.D. 457 (E.D. Pa. 2008); Ramirez v. Palisades Collection LLC, No. 07 C 3840, 2008 WL 2512679 (N.D. Ill. 2008).
------------------------------------------------------------------------------------------------------------------
23 See Castro v. Collecto, Inc., ___ F.Supp.2d ___, 2009 WL 3617557 (W.D. Tex. 2009); Pescatrice v. Orovitz, P.A., 539 F.Supp.2d 1375 (S.D. Fla. 2008); McCorriston v. L.W.T., Inc., 536 F.Supp.2d 1268 (M.D. Fla. 2008).
------------------------------------------------------------------------------------------------------------------
which he rightfully owes. Mr. LSC, upon receiving a debt collection letter that contains some minute variation from the stat¬ute’s requirements, immediately exclaims “This clearly runs afoul of the FDCPA!” and rather than simply pay what he owes – repairs to his lawyer’s office to vindicate a perceived “wrong.” “[T]here comes a point where this Court should not be ignorant as judges of what we know as men.” Watts v. State of Ind., 338 U.S. 49, 52, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949).
See Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 596 (6th Cir. 2009) (quoting Miller v. Javitch, Block & Rathbone, 534 F.Supp.2d 772, 778-779 (S.D. Ohio 2008) (noting that the plaintiff “fits the description of [the] hypothetical consumer to a tee, and we
will not ‘countenance lawsuits based on frivolous misinterpretations or nonsensical assertions of being led astray.’”) (citation omitted)).
Congress recognized the potential for abuse of the FDCPA in § 1692k(a)(3), which permits a court to award attorney’s fees against plaintiffs who bring claims in bad faith. Because the statute generally favors the consumer, it is more susceptible to abuse by consumers than debt collectors.
3. Contrary to petitioner’s assertions, a plain reading of the bona fide error defense will not necessarily increase the scope of discovery or render private enforcement cost prohibitive. First, regardless of whether the bona fide error defense includes legal
errors, a plaintiff has a right and an incentive to seek discovery supporting a claim for additional damages – including the “frequency and persistence of the noncompliance, the nature of the noncompliance, and whether the noncompliance was intentional.” 15 U.S.C. § 1692k(b). Thus, as a practical matter, the overlapping issues regarding a debt collector’s bona fide legal error will not significantly expand the scope of discovery.
Second, similar to other consumer legislation, Congress has provided within the FDCPA that a successful plaintiff may be entitled to an award of attorney’s fees. Petitioner’s argument then that even the most “stalwart plaintiff and her attorneys” will be deterred is wrong. As the Sixth Circuit noted in Miller, the exact opposite has occurred, a cottage industry has arisen for the sole purpose of collecting attorney fees. See 561 F.3d at 596.
In short, petitioner has failed to show that the express purpose of the FDCPA will be undermined if the bona fide error defense is found to include legal errors. Petitioner’s arguments in this respect are inconsistent with the clear and unambiguous language of the statute. Even if it is assumed that failing to remove legal mistakes from the plain language of the bona fide error defense somehow leads to harsh results, this Court has long recognized an “unwillingness to soften the import of Congress’s chosen words even if [it is] believe[d] the words lead to a harsh outcome. . . . It results from ‘deference to the supremacy of the Legislature, as well as recognition that Congressmen typically vote on the language of a bill.’” Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004).
