Third Circuit Affirms Liability of Debt Collector on Debtor’s TCPA Claim; Reverses Judgment In Favor Of Debt Collector On Debtor’s FDCPA Claim, Finding Bona Fide Error Defense Does Not Apply

In a case stemming from defendant debt collector’s pursuit of $25 in unpaid medical bills, where plaintiff debtor won summary judgment on his Telephone Consumer Protection Act (“TCPA”) claim but lost at trial on his Fair Debt Collection Practices Act (“FDCPA”) claim, the United States Court of Appeals for the Third Circuit recently issued a precedential decision affirming the TCPA claim but reversing and remanding the FDCPA claim.  Daubert v. NRA Group, LLC, 861 F.3d 382 (3d Cir. 2017).  In the case, defendant attempted to collect the $25 debt from plaintiff in two ways: first, defendant sent a letter through an independent vendor.  Plaintiff alleged that visible through the glassine windows on the envelope were the plaintiff’s account number with defendant as well as a barcode that, when scanned, revealed that account number.  Second, defendant called plaintiff sixty-nine times in ten months, each call made using a Mercury Predictive Dialer.  Plaintiff sued defendant, alleging a violation of the FDCPA, 15 U.S.C. 1692 et seq., on grounds that the bare account number and barcode on the collection letter envelope could have revealed his private information.  Plaintiff later amended his complaint to allege a violation of the TCPA, 47 U.S.C. 227.  The court granted summary judgment in favor of plaintiff on the TCPA claim.  At trial on the FDCPA claim, the court granted defendant’s motion for judgment as a matter of law, holding no reasonable jury could find that either alleged FDCPA violation resulted from anything other than an unintentional, bona fide error.  Both parties appealed.

On appeal, defendant argued that the court was wrong to grant summary judgment on the TCPA claim because a reasonable jury could find that plaintiff gave his “prior express consent” to receive calls about his bill.  The Third Circuit disagreed, relying on the principles that the “appropriate analysis turns on whether the called party granted permission or authorization to be called, not on whether the creditor received the [cell] number directly”; that the TCPA’s purpose is remedial in nature and “should be construed to benefit consumers”; and the basic premise of consent is that it is “given voluntarily.”  Therefore, no reasonable jury could find that plaintiff expressly consented to receive calls from defendant about his $25 debt.  With respect to the FDCPA claim, the Third Circuit agreed with plaintiff’s argument that the district court’s decision to grant defendant judgment as a matter of law on his FDCPA claim was erroneous because defendant’s bona fide error defense is premised on a mistake of law.  The Third Circuit noted that the bona fide error defense allows a debt collector to escape liability by proving that its statutory violation was “not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.”  However, a mistake of law is not a bona fide error, and the defense does not apply to FDCPA violations “resulting from a debt collector’s mistaken interpretation of the legal requirements of the FDCPA.”  The fact that defendant had relied on two other district court decisions did not justify its actions either, because such decisions were persuasive and “debt collectors can't escape a district court’s finding of FDCPA liability under the bona fide error defense by pointing to the persuasive authority they relied on at the time to justify their conduct.”  Therefore, defendant’s assumedly mistaken interpretation of the law is inexcusable. 

For a copy of the decision, please contact Michael O’Donnell at, Michael Crowley at or Clarissa Gomez at