In Erez v. Chad Steur Law, plaintiff alleged that defendant violated the FDCPA by leaving voice mail messages that failed to state the mini-Miranda and by communicating directly with plaintiff after being advised that plaintiff was represented by counsel. The parties filed cross motions for summary judgment. Defendant argued it was not required to state it was a debt collector because plaintiff was aware that the caller was a debt collector. The court rejected this argument, and entered judgment in plaintiff's favor because the FDCPA expressly requires the disclosures regardless of what the debtor knows. The court did enter judgment in defendant's favor on the second claim though, finding that the continued communications directly to the represented debtor were the result of a bona fide error after defendant established that it was a clerical error contrary to established policy that caused the direct communications.
In Webster v. ACB Receivables, plaintiff alleged that defendant violated the FDCPA by continuing collections after receipt of a written cease and desist request, and by sending a letter that threatened legal action that could not be taken. In deciding the cross motions for summary judgment, the court decided that defendant violated the FDCPA by continuing collections, and that the violation was not excused under the bona fide error defense because defendant failed to demonstrate it had implemented sufficient policies to prevent the failure to fully read plaintiff's written correspondence which included, in part, the cease and desist request. The court rejected plaintiff's threat claim though, finding the letter requested information and payment, while outlining the dispute process.
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