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Judge Grants MSJ For Plaintiff in WVCCPA Bona Fide Error Case

A District Court judge in West Virginia has granted summary judgment in favor of a plaintiff who received a collection letter from a defendant that did not include updated language required under the West Virginia Consumer Credit and Protection Act related to the collection of time-barred debts.

A copy of the ruling in the case of Adkins & Short v. Midland Credit Management, Inc. can be accessed by clicking here.

The WVCCPA was updated on July 4, 2017 to require that any collection letter sent to a West Virginia resident include the following statement when collecting on a time-barred debt: “The law limits how long you can be sued on a debt. Because of the age of your debt, (INSERT OWNER NAME) cannot sue you for it.”

The defendant, however, did not update its letters to reflect this change until August 25, and, in the meantime, sent letters to numerous individuals, including the plaintiffs, that did not have the updated language.

The defendant attempted to use the bona fide error defense under the WVCCPA, which can excuse a collector from liability if the “debt collector establishes by a preponderance of evidence that a violation is unintentional or the result of a bona fide error of fact notwithstanding the maintenance of procedures reasonably adapted to avoid any such violation or error.”

Arguing that conditions for a bona fide error are met when the defendant demonstrates that either the violation was unintentional or that “it was the result of a bona fide error of fact notwithstanding the maintenance of procedures reasonably adapted to avoid the error,” the defendant sought summary judgment as well. But the judge deemed that a collector must “demonstrate that it maintained procedures reasonably adapted to avoid the error or violation,” in order to satisfy the bona fide error provision.

The judge ruled the defendant did not produce sufficient evidence to prove it maintained procedures to prevent this kind of violation. The defendant “described its procedure for communicating change requests, but it did not connect the dots to explain how that procedure is designed to eliminate the risk of human error,” wrote Judge Irene Berger in granting summary judgment for the plaintiff.

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