The opinion of the court was delivered by: IAN LEVIN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Stephen P. Turner ("Turner") moves for summary judgment as to
Defendant's affirmative defense of bona fide error in this Fair Debt
Collection Practices Act action. For the reasons hereinafter set forth,
the Court grants Turner's motion for summary judgment.
On March 17, 2000, Turner filed a Chapter 7 bankruptcy petition. (Pl.'s
Mem. at 1.) A debt in the amount of $97.80 owed to Pre-Paid Local Access
Phone Service Company ("Pre-Paid") was listed on Turner's bankruptcy
petition. (Id.) Turner's $97.80 debt to Pre-Paid was discharged in
bankruptcy and Pre-Paid received notice of the discharge on March 22,
2000 and July 5, 2000. Turner v. J.V.D.B. & Assocs. Inc., 330 F.3d 991,
994 (7th Cir. 2003). By July of 2000, Turner's bankruptcy was listed on
his credit reports. (Id.)
Despite the fact that Turner's bankruptcy was listed on his credit
reports, Pre-Paid turned the debt over to a debt collector, Defendant
J.V.D.B. & Associates, Inc. ("J.V.D.B."), Turner, 330 F.3d at 994.
J.V.D.B. then sent a collection letter printed on its letterhead dated
March 29, 2001 to Turner and stated that the balance due to Pre-Paid was $97.80. (Id.) The
collection letter stated the following:
This is an attempt to collect a debt and any
information obtained will be used for that purpose.
The above claim has been referred to this office for
Pursuant to Public Law 95-109, unless you notify us
within 30 days after receiving this notice that you
dispute the validity of the debt or any portion
thereof, this office will assume this debt is
valid. If you notify this office in writing within
30 days from receiving this notice, this office
will obtain verification of the debt or obtain a
copy of a judgment and mail you a copy of such
judgment or verification. If you request . . .
in writing within 30 days after receiving this
notice, this office will provide you with the name
and address of the original creditor, if different
from the current creditor.
Very truly yours, J.V.D.B. & Associates, Inc.
As is pertinent here, after receiving the collection letter, Turner
forwarded it to his attorney who subsequently brought suit under
15 U.S.C. § 1692e*fn1 of the Fair Debt Collection Practices Act
("FDCPA"). In his suit, Turner alleges that J.V.D.B. violated § 1692e by
telling him that he had to pay a debt that had been previously discharged
in bankruptcy. By doing this Turner alleges J.V.D.B. misrepresented the
legal status of the debt. (Id.)
The Defendant has filed an affirmative defense of bona fide error.
Turner has moved for summary judgment as to this bona fide error
affirmative defense. LEGAL STANDARDS
I. BONA FIDE ERROR DEFENSE
A bona fide error defense can be available to a debt collector under
the FDCPA. To establish a bona fide error defense, a debt collector must
show by a preponderance of the evidence that "(1) it violated the FDCPA
unintentionally, and (2) has in place procedures reasonably adapted to
avoid the violation it committed." Jenkins v. Union Corp.,
999 F. Supp. 1120, 1141 (N.D. Ill. 1998)(citing § 1692k(c)).
Specifically, § 1692k(c) of the FDCPA states:
A debt collector may not be held liable in any action
brought under this subchapter if the debt collector
shows by a preponderance of evidence that the
violation was not intentional and resulted from a bona
fide error notwithstanding the maintenance of
procedures reasonably adapted to avoid any such
error. 15 U.S.C. § 1692k(c).
The bona fide error defense of § 1692k(c) is "unrelated to the issue of
whether a plaintiff has proven a debt collector's actual knowledge of
facts sufficient to sustain a cause of action under § 1692e." Union
Corp., 999 F. Supp. at 1141 (quoting Hubbard v. National Bond &
Collection Assocs., Inc., 126 B.R. 422, 429 (D.Del. 1991). Moreover,
"[t]he mere assertion of good intent, absent a factual showing of actual
safeguards reasonably adopted to avoid violations of the FDCPA, is
insufficient" to sustain the bona fide error defense. Id. (quoting
Oglesby v. Rotche, No. 93 C 4183, 1993 WL 460841, at *9 (N.D. Ill. Nov.
5, 1993); see also Green v. Hocking, 792 F. Supp. 1064, 1066 n.5 (E.D.
Mich. 1992)(rejecting bona fide error defense where the defendant debt
collector merely asserted that the error was unintentional without
supplying evidence of procedural safeguards).
Summary judgment is appropriate where "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once
the moving party has produced evidence to show that it is entitled to
summary judgment, the party seeking to avoid such judgment must
affirmatively demonstrate that a genuine issue of material fact remains
for trial. LINC Fin. Corp. v. Onwuteaka, 129 F.3d 917, 920 (7th Cir.
In deciding a motion for summary judgment, a court must "review the
record in the light most favorable to the nonmoving party and . . . draw
all reasonable inferences in that party's favor." Vanasco v.
National-Louis Univ., 137 F.3d 962, 964 (7th Cir. 1998). See also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). Nevertheless, the nonmovant may not rest upon mere
allegations, but "must set forth specific facts showing that there is a
genuine issue for trial," Fed.R.Civ.P. 56(e). See also Linc, 129 F.3d at
920. A genuine issue of material fact is not shown by the mere existence
of "some alleged factual dispute between the parties," Anderson, 477
U.S. at 247, 106 S.Ct. 2505, 91 L.Ed.2d 202, or by "some metaphysical
doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Rather, a genuine issue of material fact exists only if "a fair-minded
jury could return a verdict for the [nonmoving party] on the evidence
presented." Anderson, 477 U.S. at 252, 106 S.Ct. 2505, 91 L.Ed.2d 202.
Therefore, if the court concludes that "the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party, there
is no `genuine issue for trial,'" and summary judgment must be granted.
Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348, 89 L.Ed.2d 569
(quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253,
289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). DISCUSSION
Turner avers that J.V.D.B. cannot assert a bona fide error defense
herein because J.V.D.B. cannot show by a preponderance of the evidence
that the March 29, 2001 debt collection letter was sent unintentionally
and was the result of a bona fide error. (Pl.'s Mem. at 5-8.) Thus,
Turner specifically contends that J.V.D.B.'s bona fide error defense
falls short of the standard set by Seventh Circuit case law and the FDCPA
because the principal alleged procedure J.V.D.B. uses to avoid such
errors is to "rely on its creditor clients to provide it with all
relevant, current and accurate information on a debtor's account
including whether a debtor has filed bankruptcy." Id. at 6-8; Am.
Affirm. Defense ¶ 7.) Accordingly, Turner alleges that J.V.D.B. failed
to adequately maintain procedures to avoid collecting on debts that do
not exist as required by § 1692k(c). (Pl.'s Mem. at 5-8.)
J.V.D.B., on the other hand, alleges that it has set forth a valid bona
fide error defense because it has appropriate procedures in place to
avoid pursuing collection on accounts that have been discharged in
bankruptcy. (Def.'s Resp. at 6-9.) Specifically, J.V.D.B. avers that it
reasonably relies on clients to provide it with all relevant, current and
accurate information on a debtor's account including whether a debtor has
filed for bankruptcy and, moreover, if it receives information that an
account is subject to bankruptcy, it will not pursue collection on that
account. Id. at 7.) Moreover, J.V.D.B. contends that it is undisputed
that it had no knowledge (or notice) that Turner had filed for bankruptcy