Ponce v. BCA Financial Services, Inc.

Summarized by Jeffrey Snyder , Bilzin Sumberg Baena Price & Axelrod, LLP
14 years 2 weeks ago

Citation:

11-13688 (11th Cir. Feb 14, 2012) (unpublished)

Tag(s):

Ruling:

- Summary judgment on claims under Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. affirmed where (a) letter sent to invalid address was not "initial communication" but rather later phone call was initial communication that was not followed by required written notice within 5 days, (b) call to third party to locate debtor failed to include required disclosure, and (c) debt collector's statement based on general knowledge of insurance practices and not specific knowledge of debtor's circumstances was "false, deceptive, or misleading representation" under applicable "least sophisticated consumer" standard. - District court's rejection of debt collector's bona fide error defense to FDCPA claims affirmed where debt collector relied solely on its internal policies without explainting how alleged errors were unintentional or how policies were meant to protect against errors. Bona fide error defense requires debt collector to show by preponderance of the evidence that violation of FDCPA (1) was not intentional; (2) was a bona fide error; and (3) occurred despite the maintenance of procedures reasonably adapted to avoid any such error. - District court did not abuse its discretion in awarding maximum statutory damages of $1,000 for three violations of FDCPA, as available remedies under the FDCPA include actual damages, potential for additional damages up to $1,000 subject to the Court's discretion, and reasonable costs and attorneys fees.

Procedural context:

Appeal of summary judgment entered by U.S. District Court for the Southern District of Florida in favor of plaintiff on claims under Fair Debt Collection Practices Act and award of statuory damages of $1,000.

Facts:

BCA Financial Services, Inc. ("BCA"), a company that specializes in the collection of health care debt obligations, attempts to collect alleged unpaid medical debt in the amount of $378.35 from Isreal Ponce ("Ponce"). BCA sent letter to address where Ponce had not lived for 8 months and, several months later, made telephone call to Ponce that was not followed by written notice required by 15 U.S.C. § 1692(g)(a). BCA's representative failed to state that she was “confirming or correcting location information” concerning Ponce during her telephone conversation with Ponce’s ex-wife in violation of 15 U.S.C. § 1692b(1) where undisputed transcript reflects that representative asked Ponce's ex-wife if she had a number where Pince could be reached and where representative admitted she had never made required statement. BCA's representative's statement to Ponce that “sir, your insurance company will not go ahead and take care of this now,” in response to Ponce’s question about why his health insurance did not pay the bill violated’s FDCPA’s prohibition against the use of “false, deceptive, or misleading representation or means in connection with the collection of any debt” under "least sophisticated consumer standard" even though no insurance company had paid the bill despite attempts by the medical provider to obtain payment. Representative's statement was based on general experience about insurance claims, and not based on particular information about Ponce’s insurance, and therefore, was based upon assumption meant to coax Ponce into paying the bill.

Judge(s):

BARKETT, MARCUS and MARTIN

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