In Buckley v. AFNI, Inc., 2016 WL 70847, at *2-3 (S.D.Ind., 2016), Judge Baker found that a debt collector violated the FCRA and the FDCPA when it initiated collection activities against a bankrupt debtor. First, the District Court found that the debt collector’s pulling of a credit report violated the FCRA because no debt existed post-bankruptcy.
Both parties have moved for summary judgment on this issue, but even when viewing the evidence in a light most favorable to Afni, Buckley presents sufficient evidence to establish Afni’s liability for the FCRA violation. The parties agree that Afni accessed Buckley’s credit report after all her debts with it were discharged in bankruptcy, including the DIRECTV debt. In its deposition, Afni explained that after the bankruptcy discharged the DIRECTV account, it accessed Buckley’s credit report to score it and determine a strategy to collect that account. [Filing No. 37-1, at ECF p. 22-23.] Thus, the evidence shows that Afni had no had no valid debt to collect when it accessed Buckley’s credit report for the purpose of debt collection.. . Buckley argues that Afni accessed her credit report willfully because it was aware of the FCRA requirements yet intentionally accessed her credit report. Afni contends that it should not be held liable because its internal failure to deactivate Buckley’s DIRECTV account was merely negligence and does not rise to the level of willfulness. The parties agree that Afni accessed Buckley’s credit report after she received her bankruptcy discharge for purposes of debt collection. It is undisputed that Afni accessed Buckley’s credit report with knowledge that doing so without a permissible purpose violates the FCRA. Based on the evidence, no rational trier of fact could reasonably find that Afni had reason to believe that Buckley’s DIRECTV account was a valid debt to collect when it did so. Consequently, Afni had no permissible purpose to obtain Buckley’s credit report. The parties do not dispute that Afni was aware of the FCRA rules or that it attempted to collect the discharged Deirectv debt. This violation was willfull and summary judgment in favor of Buckley is therefore appropriate on the FCRA claim.
The District Court also found that the Defendant contacted a represented party in violation of the FDCPA, and that the Defendant could not avail itself of the bona fide error exception because it never explained what exactly when wrong.
Afni’s arguments are similar to the broad assertions in Dechert. Afni has a policy regarding attorney representation [Filing No. 37-1, at ECF p. 89] and training for employees on compliance with the FDCPA. [Filing No. 48-1, at ECF p. 3.] However, as explained above, Afni fails to identify exactly what went wrong with Buckley’s DIRECTV account and it fails to identify how its policies were aimed at preventing this error from happening. The essence of Afni’s argument for the bona fide error is that it sought to collect a debt it did not know was included in Buckley’s bankruptcy and its policies do not support collection of discharged debts. [Filing No. 48, at ECF p. 2.] Such an argument is is too general for Afni to succeed on the bona fide error defense. Therefore, summary judgement in favor of Afni on this issue is not appropriate.