On July 7, 2008, the Court of Appeals for the Ninth Circuit in Reichert v. National Credit Systems, Inc. held that, in an action by a debtor against a debt collector under the FDCPA arising out of a debt that the debtor owed a former landlord, the debt collector bore the burden of proving the bona fide error defense. The debt assigned by the landlord included a $225 fee charged by the landlord’s attorney — a fee which was recoverable under Arizona law only if incurred in successful litigation. The debtor sued under 15 U.S.C. 1692f(1) which prohibits collection of “any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law”. The debt collector did not assert that the attorney’s fee was expressly authorized by the agreement creating the debt or permitted by law, but asserted that the inclusion of the fee — and, hence, the FDCPA violation, was not intentional. The Court of Appeals confirmed that the FDCPA is a strict liability statute, and held that the bona fide error defense is an affirmative defense for which the debt collector bears the burden. The debt collector must show that it actually “‘maintained’ — i.e. actually employed or implemented — procedures to avoid errors; and, second, [that] the procedures were ‘reasonably adapted’ to avoid the specific error at issue”. The Court of Appeals explained that, under Clark v. Capital Credit & Collection Services, Inc. 460 F.3d 1162 (9th Cir. 2006), the bona fide error defense “does not protect a debt collector whose reliance on a creditor’s representation is unreasonable”. The fact the creditor had provided accurate information in the past “cannot, in and of itself, establish that reliance in the present case was reasonable and act as a substitute for the maintenance of adequate procedures to avoid future mistakes”. reichert-v-national-credit-systems-inc-__f3d-__-9th-cir-20081