In Camacho v. Jefferson Capital Systems, LLC, 2015 WL 5569082 (N.D.Cal., 2015), Judge Freeman granted an FDCPA Plaintiff’s summary judgment motion despite the Defendant’s claim of bona fide error protection.
According to Defendant, the collection letters sent to Plaintiff actually contained two violations of the FDCPA and RFDCPA. The first violation resulted from Defendant sending a letter directly to Plaintiff in violation of the statutes’ prohibition against contacting a consumer represented by an attorney. The second violation resulted from Defendant misrepresenting in the letter the amount owed by Plaintiff. Defendant notes that the Court granted summary judgment in favor of Defendant on the first violation because the Court found that Defendant’s communication to a consumer represented by an attorney was the result of a bona fide error. As a result, Defendant argues that the Court’s finding of a bona fide error as to this first violation should also protect Defendant from the second violation. Defendant argues that if it had followed its procedures, it would not have sent a letter to Plaintiff because Plaintiff was represented by an attorney, and therefore, Plaintiff would never have received the wrong information. Plaintiff responds that a bona fide error as to one violation of the FDCPA and RFDCPA does not automatically cover a separate violation of those statutes. Plaintiff argues that in order to avail itself of the bona fide error defense, Defendant must show its policies and procedures were designed to avoid the specific violation of misrepresenting the debt owed by Plaintiff. As a threshold issue, the Court must determine whether a policy adopted to prevent one type of FDCPA and RFDCPA violation can give rise to a bona fide error defense as to a separate violation of the statutes not specifically addressed by the policies. Defendant has not cited any legal authority allowing a policy designed to prevent one type of violation to also be used as the basis for a bona fide error defense as to a separate violation not covered by the policy. . . .Here, the Court is confronted with a situation similar to the one in Holsinger. Consistent with the outcome in Holsinger, the Court finds that a policy designed to prevent one specific FDCPA violation cannot serve as the basis for a bona fide error defense as to a different violation of the FDCPA. In passing the FDCPA, Congress sought to “eliminate abusive debt collection practices by debt collectors,” 15 U.S.C. § 1692(e), and since “the FDCPA… is a remedial statute, it should be construed liberally in favor of the consumer.” Tourgeman v. Collins Fin. Servs, Inc., 755 F.3d 1109, 1118 (9th Cir. 2014). Under Defendant’s argument, a debt collector could be shielded from liability for misrepresenting the debt owed by a consumer even though it had no procedures and policies in place to prevent the misrepresentation from happening. Such a result appears contrary to the FDCPA’s purpose of preventing debt collectors from engaging in abusive practices. In construing the FDCPA liberally in favor of the consumer, the Court finds that a debt collector cannot use a policy designed to prevent one violation of the FDCPA as the basis for a bona fide error defense as to a different violation. Accordingly, Defendant’s argument fails and the Court GRANTS Plaintiff’s motion for summary judgment as to this issue.
In granting Plaintiff’s claims to a penalty under the FDCPA, but denying Plaintiff’s claims to one under the Rosenthal Act, Judge Freeman confirmed that the standards for issuing a penalty under the two statutes is different.
Plaintiff seeks the maximum statutory damages available under the FDCPA and RFDCPA. Plaintiff argues that an award of maximum statutory damages is necessary to dissuade Defendant and other debt collectors from future violations. Defendant argues Plaintiff should be awarded $150 because Plaintiff has not shown that this matter involves intentional and threatening conduct. The Court finds a disputed issue of material fact exists as to how much in damages should be awarded. Accordingly, the Court DENIES Plaintiff’s summary judgment as to this issue. Plaintiff also alleges that Defendant knowingly and willfully committed this violation and as a result, seeks an additional $1,000 penalty under the RFDCPA. Plaintiff has the burden to show Defendant willfully and knowingly violated the statute. Plaintiff’s papers merely recite the words “willfully and knowingly” but fail to point to any evidence indicating that Defendant willfully violated the statute. The Court cannot rely on attorney argument at summary judgment and in the absence of any evidence, the Court DENIES Plaintiff’s motion for summary judgment for an award of damages under Cal. Civ. Code § 1788.30(b).