Chicago Business Litigation Lawyer Blog picks up on a Wisconsin FDCPA case that may have legs - for those whose debts are bought/assigned by a collection agency.
AFNI next argued that it is entitled to collect fees as Cingular's assignee, since customers signed contracts with Cingular agreeing to pay fees charged by a third party. The district court found that the contracts authorize a collection fee only when Cingular uses a third party, not when Cingular does the collection work itself. AFNI argued that it could collect the fee as a reimbursement if it had paid that fee to Cingular. But as the appeals court pointed out, it did not pay such a fee, and no evidence in the record shows that AFNI's fee could be considered a referral fee authorized by the contract.
Finally, the court considered whether AFNI's violation of the law could be considered a bona fide error under the FDCPA, which removes liability when a debt collector broke the law unintentionally. One requirement of the bona fide error defense, the Seventh wrote, is that the debt collector have reasonable procedures in place to avoid a violation. It concluded that AFNI had no such procedures, pointing out that AFNI an employee's own deposition shows it wasn't aware of the distinction between collecting its own debt and collecting on behalf of a client. In fact, the court wrote, "applying the bona fide error defense here would essentially reward a business's ignorance of the law." Thus, it upheld the trial court's summary judgment decision on both the FDCPA and the Wisconsin claim.