Question regarding "bona fide" error

[wm1111]

Hello all,

I am being sued by Capital One for a debt I defaulted on a couple years back. Although I won't deny defaulting, I have had trouble with their representing lawyer (cough**Daniels Law Office**cough).

On April 2, 2009 I received a phone call at my work from this law office. My work has recorded phone lines and after a brief discussion, the person agreed to talk to me and be recorded. He stated I owed $2662.00 and I told him I believed his amount was wrong. He asked why I never responded to the original notice and I told him I never received it (I honestly didn't). He basically stated that one was sent and I HAD to have received it. When I again told him I didn't he then said "I should have already received the summons from the court." I was horrified and asked him for the case number and he said he didn't have it. I asked him to explain how he came up with the $2662.00 and he said he would send me a statement. End phone call.

So, being horrified, I immediately called every local court house and asked for the case number. Every court house told me no case was filed. A day later I receive a statement from the lawyer and it says I owe $1800.00, quite a difference from $2662.00.

A few days later I send a certified letter to the law office asking for verification of the amount and ask for the case number....no response. I do the same on July 1, no response.

Then, only Sept 28 I receive a summons to court. I am being sued for $2100.00. The summons states the law suit was filed only a few days earlier.

So, I believe the law office violated the FDCPA by misrepresenting the amount and legal status of the debt. I also beleieve the engaged in deceptive collection acts by trying to scare me into something by saying they already filed suit. I send an answer to their complaint and file a countersuit for violations of the FDCPA.

They answer all my claims with denials and I see them at the pretrail conference. I provide them a copy of the tape and they basically stated it was a "bonafide" error on their part and they wouldn't have to pay me damages.

Here are my question

If is was an error shouldn't they have contacted me in the 5 months from the original recorded phone call to tell me of the error, especially since I sent them letters asking them for the case number?

Funny, when I met them at court the lawyer seemed surprised I showed. I spoke with her and told her I would drop my suit if we could come to an agreeable amount. A day later she sends me a request for judgement for $2700.00. These people are crazy!

I am now in discovery with them. I filed a request for admissions (in regards to the FDCPA) and requested for production of all documentation, including the original contract and affidavit. I hope they default.

Anyway, is their bonafide error defense in good standing?

Thanks for all your help.

[trueq]

"bonifide error" was not intentional and resulted, if at all, from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid such errors.

This means in order to use this defense it has to be:

1.) an unintentional error.

2.) they need to prove they have procedures in place to prevent the error

3.) they reasonably followed their procedures.

****THIS MEANS YOU NEED TO DEMAND THEIR POLICY AND TRAINING MANUALS*****

This is where you can kick their posterior!

More often than not, their policy manuals are defective,(if they even keep one!) which wipes out this defense.

So "bonifide error" is not available if 1.) they do not have a policy manual or have an improper policy manual not addressing the issue or 2.) if they do have a proper manual, they intentionally failed to follow the manual.(This will require depos.)

This is a tough defense for collector to utilize and is essentially the only defense available under FDCPA!

Edited December 5, 2009 by trueq

[KentWA]

There is about only one way they can truely use the bona fide error defense in this case. If there was a clerical error where someone entered law suit information into your account by mistake. Demand all records of your account with them in addition to the stuff trueq already suggested. If the account notes the agent was using at the time of the call do not indicate there was a law suit pending then that is clear evidence they did not follow procedures, if they even had any.

[wm1111]

Thanks for your replies.

If it was a clerical error, shouldn't they have notified me? I sent two certified letters for clarification and they had six months to reply.

Aren't they required to notify me about their errors?

I also told them that they case could have been settled back in April if the didn't misrepresent the amount and legal status and, because they did, I shouldn't be charged interest or court fees? Is this a decent defense?

[unusualsuspect]

Sadly, they do not have to notify you of any errors...

The difference is from accrued interest from the judgment date plus fees.

So if you are in litigation with them, then you need to do as Trueq says - demand all training and compliance material.

[Downto0]

The collector has been all over the board with the amount of the debt. First it was 2662, then 1800, then 2100 and, at this point, the amount has changed to 2700.

I don't see a bona-fide error. A bona-fide error is usually one mistake. Here you have three.

I would bring up the doctrine of "unclean hands".

http://definitions.uslegal.com/u/unclean-hands/

[admin]

Downto - I agree with you.

If you can prove "unclean hands" that's usually enough to get the whole case thrown out.

[ficofightr]

In my own counter-claim, and several I've researched in my county, the JDB defense is bona fide error. In half the cases it held up and there was no real standard that I saw. It's basically what you can get out of the JDB to admit on the stand.

In my personal opinion, if you have a real FDCPA claim against a JDB, hire a consumer attorney. They'll do it on contingency if you have a good case. It's hard enough for most people to defend against the original complaint, let alone go through the discovery + direct/cross-examination + introduction of evidence required to win an FDCPA counter-claim.

Also, this is important - many JDB's will hire a spe******t FDCPA defense firms so now you're up against a "real" law firm and not the bottom dweller JDB any more. In some cases, there are 2 law firms for the JDB (one for the original complaint, and another for the FDCPA counter-claims).

If you lose your FDCPA counter-claims (maybe due to procedure and not necessarily substance), they can win attorney fees against you. Whereas if you win, you can't get attorney fees - just some other costs of suit. That's why for an FDCPA counter-claim I strongly recommend you find a consumer attorney and not go at it pro se.

For just defense of the complaint, pro se can be and has been done by many here. Counter-claims increases the level of difficulty at least 10x IMHO.