17.5.3.3 The Bona Fide Error Defense

Collectors may raise the affirmative bona fide error defense in which good intentions and the absence of culpable knowledge are two of the necessary elements.¹⁸² The bona fide error defense was given added strength when the Supreme Court in Heintz cited it as an available mechanism to defeat the suggestion that litigation coverage “automatically would make liable any litigating lawyer who brought, and then lost, a claim against a debtor.”¹⁸³

On the other hand, the Supreme Court has ruled that the bona fide error defense does not apply to errors of law as to the FDCPA’s requirements.¹⁸⁴ Although it did not reach the issue of whether errors of other law could fall within the bona fide error defense, the decision’s reasoning indicates that such errors do not fall within that defense, at least when the state law the collector has disregarded is clear as to its meaning. Thus, when a case is brought outside a limitations period that is clearly defined by state law, a bona fide error defense should not apply to an FDCPA claim against the collector for bringing an action outside that limitations period.