In Lupia v. Medicredit, Inc., No. 20-1294 (10th Cir. Aug. 17, 2021), the Tenth Circuit affirmed summary judgement in favor of the plaintiff in a claim under the Fair Debt Collections Practices Act (FDCPA), finding that the defendant debt collector failed to present sufficient evidence to establish a bona fide error defense.
The defendant, Medicredit, Inc. (Medicredit), contacted plaintiff Elizabeth Lupia regarding unpaid medical bills. On May 2, 2018, Lupia sent Medicredit a letter disputing the debt and demanding that it stop calling her. Although the letter was received on May 7, 2018, it was not entered into Medicredit’s system until May 10, 2018. On the first day of this three-day period, Medicredit called Lupia regarding the disputed debt. Lupia filed suit, alleging Medicredit violated the FDCPA by continuing to call her after receipt of her cease-and-desist letter. The District of Colorado granted partial summary judgment in favor of Lupia, and Medicredit appealed.
In affirming the lower court’s decision, the Tenth Circuit first rejected Medicredit’s argument that she lacked standing to bring her claims. The court determined that the telephone call at issue resulted in harm that was more than an abstract injury and thus, was sufficient to confer standing. It held that “[t]hough a single phone call may not intrude to the degree required at common law, that phone call poses the same kind of harm recognized at common law — an unwanted intrusion into a plaintiff’s peace and quiet.”
Further, the Tenth Circuit rejected Medicredit’s attempt to rely on the bona fide error defense. This defense requires a defendant to show that a violation of the FDCPA was: (1) unintentional; (2) a bona fide error; and (3) occurred despite procedures reasonably adapted to avoid the violation. In ruling in favor of Lupia, the court did not consider the first two requirements. Rather, it found that Medicredit undoubtedly failed the third.
In seeking summary judgment, Medicredit asserted that it “maintained a procedure to avoid contacting a debtor after receiving a letter from that debtor.” But this occurred after it had denied the existence of a mail processing policy during discovery. Moreover, the Tenth Circuit held that the evidence presented was not enough to raise a question of fact as to whether Medicredit’s procedures were reasonably adapted to avoid errors, holding:
Here, Medicredit’s general evidence about its policies — which amount to little more than retrieving and reviewing the mail — isn’t enough. And Medicredit’s blanket assertion that its policies were reasonably adapted cannot suffice. We agree with the district court: “no reasonable jury could find a procedure which inexplicably allows a three-day lag between receipt of a debtor’s dispute and logging that dispute into the system … to be reasonably adapted to prevent unauthorized contact with the debtor.” … So Medicredit can’t find refuge under the bona fide  error defense because we can find nothing in the record to show that its policies were designed to avoid making unauthorized calls to Ms. Lupia, or others like her.
This case emphasizes the evidence that a defendant needs to present to take advantage of the bona fide error defense under the FDCPA. Generalized statements concerning what is typically done are often not sufficient. Rather, the defense frequently requires specific evidence of regular and orderly processes designed to prevent mistakes of the type that occurred.