On August 17, 2021, in the case of Lupia v. Mericredit Inc., the Court of Appeals for the Tenth Circuit affirmed a district court’s decision in granting a plaintiff summary judgment. The court found an FDCPA violation occurred when the debt collector (defendant) attempted to collect a debt after receiving written notice that disputed the debt, and by calling the consumer after receiving a “cease-and-desist letter.
In the case, the plaintiff incurred a medical debt that was subsequently placed with the defendant for collection. After the debt was placed with the defendant, the debt collector sent a letter to and called the plaintiff seeking payment.
Later, the defendant received the cease-and-desist letter from the plaintiff.
The cease-and-desist letter was not documented into the defendant’s system until three days after its receipt. Meanwhile, on the day after the receipt of the letter, the defendant placed another call to the plaintiff and left a voicemail
In her suit, the plaintiff alleged that the debt collector violated the FDCPA [( Section 1692g(b)]“by attempting to collect the debt despite receiving her written notice disputing the debt” and of the FDCPA [ Section 1692g(c)] “by continuing to call her despite receiving her cease-and-desist letter.”
Although the defendant claimed that calling the consumer after she sent a dispute and cease-and-desist letter was a bona fide error, the debt collector failed to provide proof of any procedure in place to handle dispute letters.
The district court ruled that the debt collector violated the Fair Debt Collection Practices Act and its bona fide error defense did not excuse the FDCPA violations, stating that “the bona fide-error defense is an affirmative one, requiring that [the debt collector] prove the prongs of the defense, not that [the consumer] disprove them.”
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