Monday, October 19, 2009

A Debt Collector Cannot Justify Violating One Statute In Order To Comply With Another

In Brenda Edwards v. Niagara Credit Solutions, Inc. (08-17006), the Eleventh Circuit held that it is not an excuse for violating a statute that you only did it to comply with another statute.  The opinion begins:
In an oft-repeated statement from the Vietnam War, an unidentified American military officer reputedly said that “we had to destroy the village to save it.” That oxymoronic explanation may be apocryphal, but the debt collection agency in this case offers up much the same logic to explain why it violated the Fair Debt Collection Practices Act: it was necessary to violate the Act in order to comply with the Act.
Niagara has also failed to meet the second requirement of the bona fide error defense, which is that the violation actually be a “bona fide” error. Taking Niagara at its word, it was concerned that disclosing that the call was from a debt collector could result in a violation of 15 U.S.C. § 1692c(b), which prohibits a debt collector from communicating with third parties about the consumer’s debt.  Niagara feared that leaving a message on a debtor’s machine stating that it was from a debt collector calling to collect a debt might be viewed as a violation of § 1692c(b) if the message were overheard by or played in the presence of someone other than the debtor, such as a family member or roommate. We do not need to decide whether that concern is well-grounded in the law. Even if there would be a violation of § 1692c(b) in those circumstances, involving fewer than all of the messages left on answering machines, Niagara’s violation of § 1692e(11) with every message it left cannot be said to be a bona fide error.
As used in the Act “bona fide” means that the error resulting in a violation was “made in good faith; a genuine mistake, as opposed to a contrived mistake.”  Just as it is not reasonable to destroy a village in order to save it, neither is it reasonable to violate an Act in order to comply with it. It was not reasonable for Niagara to violate § 1692e(11) of the Fair Debt Collection Practices Act with every message it left in order to avoid the possibility that some of those messages might lead to a violation of § 1692c(b). Niagara complains that if it is not permitted to leave out of its answering machine messages the disclosure required by § 1692e(11), the result will be that it cannot leave any messages on answering machines. That assumes an answering machine message that includes the disclosure required by § 1692e(11), if heard by a third party, would violate § 1692c(b). We have not decided that issue, but even if Niagara’s assumption is correct, the answer is that the Act does not guarantee a debt collector the right to leave answering machine messages.


Post a Comment