The Court of Appeals for the Seventh Circuit has affirmed a lower court’s summary judgment ruling in favor of a defendant that used the Fair Debt Collection Practices Act’s Bona Fide Error defense, agreeing with the District Court that 12 calls placed during a three-week period is not harassing and that the deliberate circumvention of the dispute instructions by the plaintiff’s husband — also her attorney — entitled the defendant to use the defense.
A copy of the ruling in the case of Ross v. Financial Asset Management Systems can be accessed by clicking here.
The plaintiff’s husband — Paul Camarena — defaulted on a debt before he married the plaintiff. The defendant mailed the plaintiff a letter to collect on the debt. The letter provided instructions about how to dispute the debt, including its mailing address and website. Rather than follow those instructions, Camarena was able to “divine” the email addresses of two executives of the company, and sent them disputes via email instead. Neither of the executives ever recalled seeing the disputes, although the email was in the deleted mailbox for one of the executives.
After sending the letter, the defendant starting calling the plaintiff to collect on the debt. The plaintiff informed the defendant that it had called her on her personal cell phone (the plaintiff and Camarena shared a phone plan), and that the number was not appropriate to reach him. The collector that called the plaintiff should have coded the phone number to prevent further calls from being made, but a number of additional calls were made to the plaintiff. She answered one more call, said that Camarena was unavailable, and the she would not give out his number.
The plaintiff filed suit, alleging the defendant violated Sections 1692g(b), 1692d, and 1692d(5) of the FDCPA. A District Court judge granted the defendant’s motion for summary judgment, ruling the plaintiff did not meet the FDCPA’s definition of “consumer” and because the volume of calls was not harassing.
On appeal, the plaintiff argued both of those rulings was in error. First, the plaintiff argued that because the executive had the dispute in his deleted folder, he did not follow the company’s policy of forwarding disputes to the client services department. In this case, Camarena did not properly follow the instructions for disputing a debt, which is why nobody at the defendant noticed the dispute and were thus able to kickstart the dispute process.
The plaintiff also argued that a jury could infer the defendant was intending to harass the plaintiff because it continued calling after learning the phone number did not belong to Camarena and because it called and then hung up on her. “It is undisputed there was a bona fide error: FAMS failed to place Ross’s number on a do-not-call list after tagging her number as the incorrect contact for Camarena,” the Appeals Court wrote. “… if FAMS’s procedures had been followed, Ross’s number would have been immediately placed on a do-not-call list, and Ross would not have continued to receive calls. That is all the third element requires of debt collectors.”
