In a recent webinar hosted by Mike Gibb of AccountRecovery.net, industry experts Lauren Burnette (Messer Strickler Burnette), Chad Echols (Frost Echols), and Patrick Newman (Bassford Remele) examined the complexities of the bona fide error (BFE) defense under the Fair Debt Collection Practices Act (FDCPA).
The panel explained that while the statute provides debt collectors a defense for unintentional violations made despite reasonable procedures, courts have narrowed its application over decades of case law. As Burnette noted, “We’ve always done it this way does not get any mileage whatsoever with courts.”
Echols compared proving BFE to a “Maverick mission” – possible but difficult – stressing that agencies must evaluate early whether the defense is viable. Newman highlighted inconsistencies in how courts treat client data errors, underscoring the importance of strong agreements and audits.
The discussion also emphasized witness preparation. Echols observed that success often hinges on credibility: “There is no difference between likability and credibility. They are the same thing to a jury.” Burnette added that strong witnesses can bridge gaps between generic policies and specific case facts.
Ultimately, while BFE remains a challenging defense, it can be valuable in negotiations and trial strategies when backed by robust compliance systems and credible testimony.
🧠 Key Takeaways:
- Audit and Document Compliance Systems: Courts expect evidence of active, ongoing compliance programs, not just policy manuals.
- Strengthen Witness Preparation: Train compliance officers and staff to testify confidently and credibly about policies and procedures.
- Evaluate Data Integrity Controls: Ensure systems catch client data errors (e.g., miskeyed Social Security numbers) and document safeguards.
This webinar reinforced that the bona fide error defense is not a “get out of jail free card” but a narrowly applied tool requiring operational rigor, strong documentation, and effective courtroom presentation.
