Bedard: How Agencies Can Invoke BFE Defense When Communicating Via Email, Text Message

“Why did you think it was ok to not wear a mask when you went outside to play with your friends?”

“Because nobody else was wearing one.”

“If everyone else jumped off the Brooklyn Bridge, would you do it, too?”

How many times have we said or heard that line? Doing something we probably should not have done because someone else did it first. Well, interestingly enough, when it comes to sending emails to consumers as part of the collection process, if agencies want to be able to invoke the Bona Fide Error defense, the collector working the account immediately preceding them needs to have done it, too, according to the provisions of the Consumer Financial Protection Bureau’s debt collection rule. There are three conditions under which a collector can use the Bona Fide Error defense in relation to email communication. John Bedard of Bedard Law Group covered two of them in a recent episode of “You Wanted a Rule, You Got a Rule.” In this episode, he discusses the third condition — what previous collectors have done.

Collectors can use the Bona Fide Error defense when sending emails if the debt collector who had the account immediately preceding the one who has it now communicated with the individual via email, according to the rule.

Bedard also walks through the two sets of conditions under which collectors can avail themselves of the Bona Fide Error defense when communicating with consumers via text message: how the collector obtained the phone number from the consumer and ensuring that the number has not previously been involved in an unauthorized third-party disclosure.

Bedard notes in the video that there are time limits on that consent related to text messaging and collectors need to be aware of that if they plan on making use of the Bona Fide Error defense should they be accused of a third-party disclosure violation of the Fair Debt Collection Practices Act.

See all the videos in this important series, and access the podcast of each episode via Apple, Google, and Spotify by clicking here.

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