In Libby v. Alessi & Koenig, LLC, 2014 WL 5506794 (D.Nev. 2014), Judge Mahan granted summary judgment to a debt collector on the “bona fide error” defense.
On December 27, 2012, defendant sent plaintiff a letter advising that the defendant would be taking over the foreclosure process. (See doc. # 10). The December 27, 2012 letter contained language warning plaintiff that defendant was “a debt collector and the in-formation obtained would be used for that purpose.” (See id.). On February 11, 2013, defendant sent a notice of default and election to sell under home-owners association lien, which also included the warning. On June 6, 2013, however, defendant sent plaintiff a pre-notice of trustee sale notification letter that did not include the required warning.
The District Court found the bona fide error defense applicable.
The bona fide error defense is an affirmative defense, for which the debt collector has the burden of proof. Reichert v. Nat’l Credit Sys., Inc., 531 F.3d 1002, 1006 (9th Cir.2008); Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1514 (9th Cir.1994). Thus, to qualify for the bona fide error defense, the defendant must prove that (1) it violated the FDCPA unintentionally; (2) the violation resulted from a bona fide error; and (3) it maintained procedures reasonably adapted to avoid the violation. McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 948 (9th Cir.2011). Procedures that support a valid bona fide error defense must be “reasonably adapted to avoid the specific error at issue.” McCollough, 637 F.3d at 948 (citing Reichert, 531 F.3d at 1006). ¶ Defendant asserts that it is not liable for the violation, because its actions meet all the requirements of the bona fide error defense. First, defendant maintains that the missing warning was a one-time, inadvertent error. As evidence, defendant provides a sworn affidavit from one defendant’s attorneys asserting that “it appears that the legal assistant who generated the Pre–Notice of Trustee’s Sale document accidentally deleted the requisite mini-Miranda warning notice prior to sending it to the Plaintiff.” (See doc. # 10). Additionally, defendant notes its prior and subsequent letters to plaintiff that included the required warning. ¶ Second, defendant asserts that it maintains an active set of procedures to ensure compliance with the FDCPA. As evidence defendant details its procedures, which include, but are not limited to: (1) bi-annual staff training sessions for all employees done by attorneys “well versed” with the FDCPA; (2) annual compliance reviews of all document templates used in the collection process by attorneys “well versed” with the FDCPA; and (3) on site guidance by attorneys “well versed” with the FDCPA for employees involved in collection activities. ¶ Plaintiff contends that whether the legal secretary inadvertently deleted the warning, and whether defendant’s procedures are “reasonably adapted” are both disputed material facts, thereby precluding summary judgment under the bona fide error defense. Plaintiff cites to a number of other jurisdictions, but no controlling precedent for its assertions. ¶ The court finds that defendant has met its burden in proving that (1) defendant violated the FDCPA unintentionally; (2) the violation resulted from a bona fide error; and (3) defendant maintained procedures reasonably adapted to avoid the violation. The defendant’s previous and subsequent communications with plaintiff all included the required warning. Additionally, defendant has a number of procedures such as a template with the required warning language pre-programmed, attorneys well-versed in the FDCPA on call and available to provide support at any time, routine trainings for all employees regarding FDCPA compliance, and annual compliance reviews. ¶ The court finds that the omission was an isolated mistake by defendant, which falls squarely within the narrow exception the FDCPA provides for bona fide errors. Because the defendant’s procedures are reasonably adapted as a matter of law, the court, will grant defendant’s motion for summary judgment.