IN THE

UNITED STATEES DISTRICT COURT FOR THE

EASTERN DISTRICT OF PENNSYLVANIA
_________________________
NERESE CAMPBELL,
Plaintiff
V.

MIDLAND FUNDING LLC,

MARCIA DONNELLY,
Defendants

_________________________
DEFENDANT’S BRIEF IN SUPPORT OF
HER MOTION
FOR PARTIAL SUMMARY JUDGMENT
________________________
Student 8243
1719 N Broad St
Philadelphia, PA 19122
(215)-947-2073
Counsel of record for
Marcia Donnelly
Civil Action no. 21-707
 TABLE OF CONTENTS
TABLE OF AUTHORITIES ………………………………………………………………ii,iii
INTRODUCTION …………………………………………………………………………… 1
QUESTION PRESENTED ………………………………………………………………….. 1
STATEMENT OF THE CASE ……………………………………………………….…… 1
1. Procedural History ……………………………………………………………….…. 1,2
2. Statement of Facts ……………………………………………………………...…... 2,3
ARGUMENT ………………………………………..…………………………….......... 3
1. Point Heading
…………………………………………………………………………………........ 3,4
1.1 ………………………………………………………………..……Sub-Heading.
………………………………………………………................................. 4,5,6
1.2 ……………………………………………………………...………Sub-Heading.
………………………………………………………………………..…...… 6,7
1.3 ………………………………………………………………………Sub-Heading.
………………………………………………………………..………...…… 7,8
1.3.1…………………………………….……………………...Sub-subheading.
……………………………………………..…………………………..……. 8,9
1.3.2…………………………………………………….………..Sub-subheading.
……………………………………………….………………...……….….. 10,11
1.3.3………………………………….………………….……….Sub-subheading.
………………………………………………...……..………...……...… 11,12,13
1.4………………………………………………………………….………………..Sub-Heading.
……………………………………………………………………………………….…..… 13,14
CONCLUSION…………………………………………………………………..……...……. 15

i
 TABLE OF AUTHORITIES
Beck v. Maximus, Inc., 457 F.3d 291 (3d Cir. 2006). ....................................................................... 3
Kort v. Diversified Collection Serv., Inc., 394 F.3d 530 (7th Cir. 2005). ................................... 3,4
Butela v. Midland Credit Mgmt. Inc., 341 F.R.D. 581 (W.D. Pa. 2022). ....................................... 4
Abdollahzadeh v. Mandarich Law Group LLP, 922 F.3d 810 (7th Cir. 2019). ............................ 5
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573 (2010). ........ 5,6,9,11,13
Dinaples v. MRS BPO, LLC, 934 F.3d 275 (3d Cir. 2019). ........................................................... 6,7
Daubert v. NRA Group, LLC, 861 F.3d 382 (3d Cir. 2017). .......................................................... 6
Hyman v. Tate, 362 F.3d 965 (7th Cir. 2004). .................................................................................. 6,7
Johnson v. Riddle, 305 F.3d 1107 (10th Cir. 2002). .................................................................... 6,7,12
Pasquale v. Midwest Health Services, Inc., 940 F. Supp. 2d 1151, 1160 (N.D. Cal. 2013). .......... 8
Lavallee v. Med-1 Solutions, LLC, 932 F.3d 1049 (7th Cir. 2019). ................................................... 8
In re Robert J. Snyder, 472 U.S. 634 (1985). ..................................................................................... 8,12
McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939 (9th Cir. 2011). .................. 9
Ross v. RJM Acquisitions Funding LLC, 480 F.3d 493 (7th Cir. 2007). .......................................... 10
Hartman v. Great Seneca Fin. Corp., 569 F.3d 606 (6th Cir. 2009). ............................................. 10,11
Thirty Hogsheads of Sugar v. Boyle, 13 U.S. 191 (1815). .................................................................... 12
Mirabal v. General Motors Acceptance Corp., 537 F.2d 871 (7th Cir. 1976). ................................. 13
Palmer v. Wilson, 502 F.2d 860 (9th Cir. 1974). ................................................................................... 13
McLaughlin v. Phelan Hallinan & Schmieg, LLP, 756 F.3d 240 (3d Cir. 2014). .............................. 14
STATUTES AND RULES
15 U.S.C. § 1692k(c) (FDCPA), bona fide error provision .....................................1,3,5,8,12,13,15
Federal Rule of Civil Procedure 56(c). ....................................................................................... 1,4,15
Truth in Lending Act (TILA). ...................................................................................................... 13,14
OTHER AUTHORITIES
Bona fide error, Black's Law Dictionary (11th ed. 2019). .............................................................. 6
Procedure, Webster's Third New International Dictionary 1807 (Philip Babcock Gove ed., 1976). ... 9

ii
Phila. Cts. Civ. Docket Access, https://fjdefile.phila.gov (last visited Nov. 2, 2024).….................… 8
Results for Dockets, Bloomberg Law, www.bloomberglaw.com/search (last visited Nov. 3, 2024)... 8

S. Rep. No. 95-382 (1977). ............................................................................................................................ 13

iii
 INTRODUCTION

Ms. Marcia Donnelly, a well-trained Fair Debt Collection Practices Act (FDCPA) attorney,

mistakenly filed a debt collection complaint against Ms. Nerese Campbell on behalf of Midland

Funding LLC, which was barred by res judicata. When doing so, she relied on information that was

supposed to be accurate.

Ms. Nerese Campbell sued Ms. Donnelly claiming a violation of the FDCPA. Due to an unforeseen

mistake, Ms. Donnelly withdrew the complaint immediately upon notification in accordance with

her usual legal practice and consistent FDCPA regulations’ compliance.

The record shows Ms. Donnelly’s alignment with the bona fide error defense that leads to granting a

motion for summary judgment.

QUESTION PRESENTED

Under Federal Rule of Civil Procedure 56(c), should a lawyer’s motion for partial summary

judgment be granted if an attorney under the FDCPA files a complaint barred by res judicata, not

realizing the case was unviable and unaware of another of previous action, had previously attended

courses to prevent such error, and immediately withdrew the complaint upon notification?

STATEMENT OF THE CASE

Procedural History:

On June 7, 2024, Ms. Nerese Campbell (Plaintiff), initiated a lawsuit, filing a complaint asserting

violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. (FDCPA

Compl. ¶ 4). Defendant, Ms. Marcia Donnelly, responded by filing an answer to the complaint on

July 2, 2024, and withdrew the complaint immediately. (Answer of Donnelly to FDCPA Compl.).

1
On July 6, Defendant Donnelly filed a Motion for Partial Summary Judgment reasoning bona fide

error defense. (Donnelly’s Mot. Summ. J. ¶ 1).

Statement of Facts:

Ms. Marcia Donnelly is an attorney licensed in the Commonwealth of Pennsylvania who has been

practicing law since 2017. (Donnelly Dep. 1:2). Initially focusing on small criminal defense cases, she

shifted her practice to debt collection in 2020. (Donnelly Dep. 5:14–5:17). Since then, Ms. Donnelly

has been a member of ACA International (Donnelly Dep. 4:9)., she attends the annual FDCPA

training offered by the Pennsylvania Bar Institute. (Donnelly Dep. 4:10, 4:12–4:13).

Ms. Donnelly began representing Midland in June 2020, filing approximately 100 state court debt

collection actions on its behalf, most of which resulted in favorable verdicts for Midland. (Donnelly

Dep. 1:21, 1:25, 2:4). Ms. Donnelly files cases for Midland after validating them through its account

manager. Midland’s account manager, Marlo Stansfield, who has held the position since September

2019, is responsible for checking court dockets before accounts are transferred for collections.

(Stansfield Dep. 1:6–8).

In Ms. Campbell’s case, Mr. Stansfield transferred the file after running a docket search in the Court

of Common Pleas records, in which he did not identify any prior cases, as Ms. Campbell’s name was

listed as “Cambell”. (Stansfield Dep. 3:18–24). Michael Lee, an attorney working on behalf of

Midland, filed a debt collection lawsuit against Ms. Campbell in the Philadelphia Court of Common

Pleas on February 8, 2021. (FDCPA Compl. Ex. A, ¶ 3).

When this occurred, Ms. Donnelly was on maternity leave and had no relation to the case or its

actions. (Donnelly Dep. 3:12–14). She resumed practicing on July 13, 2022, and filed a new debt

collection case against Ms. Campbell in the Philadelphia Court of Common Pleas, based on

Midland’s account details that identified Ms. Campbell as the debtor (FDCPA Compl. ¶¶ 9–10). On

2
September 30, 2022, Ms. Campbell’s legal representative, Luc Skywalker, informed Ms. Donnelly in

writing that the debt collection action was barred by res judicata (Donnelly Dep. Ex. P-1, ¶ 1). Upon

receiving this notice, Ms. Donnelly immediately took action and withdrew the complaint on October

12, 2023. (Donnelly Dep. 1:11).

Following the withdrawal, Ms. Campbell filed a civil suit on June 7, 2023, alleging violations of the

FDCPA (FDCPA Compl. ¶ 12). Ms. Donnelly filed a partial motion for summary judgment,

asserting the bona fide error defense under the scope of genuine factual mistakes. (Donnelly Dep.

3:12–14; Stansfield Dep. 3:12–15).

Argument

1. Ms. Donnelly has the right to assert bona fide error defense, and her partial motion for

summary judgment granted because she unintentionally filed a debt collection that is barred

by res judicata, in good faith, relying on her client Midland Funding LLC.

The bona fide error defense, under 15 U.S.C. § 1692k(c), protects debt collectors from liability for

unintentional violations of the FDCPA. Ms. Donnelly is entitled to partial summary judgment by

asserting this defense, as she consistently attended FDCPA training to prevent such errors. She was

unaware that the prior lawsuit was barred by res judicata, relying instead on inaccurate client

information from Midland, which contained a clerical error made by the Philadelphia Court of

Common Pleas.

The bona fide error must be unintentional, and the collector must show that safeguards were

maintained to avoid it. Beck v. Maximus, Inc., 457 F.3d 291, 298 (3d Cir. 2006). Safeguards could

include relying on incorrect client information. Kort v. Diversified Collection Serv., Inc., 394 F.3d 530, 537

(7th Cir. 2005). Moreover, a defendant’s mistake due to clerical errors are considered bona fide

3
errors when proven to be valid. Butela v. Midland Credit Mgmt. Inc., 341 F.R.D. 581, 584 (W.D. Pa.

2022).

Ms. Donnelly relied on information obtained from her client, Midland, which affirmed the validity

of filing a debt collection action against Ms. Campbell. She also followed procedures designed to

prevent FDCPA violations, such as attending seminars as an ACA International member, which

provided compliance guidance to avoid such errors (Donnelly Dep. 4:10, 4:12–4:13). Additionally,

the information transmitted by Midland contained an unintentional clerical mistake made by the

Philadelphia Court of Common Pleas (Stansfield Dep. 3:18–24).

The summary judgment is appropriate if there’s no genuine dispute over material facts and the

movant is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c). The court

should grant a motion for summary judgment if an attorney’s reliance on client stems from a factual

misinterpretation, with no mistake of law. Kort, 394 F.3d at 536.

This is consistent with the fact that the record "shows that there is no genuine dispute as to any

material fact, and Ms. Donnelly is 'entitled to judgment as a matter of law.'" Fed. R. Civ. P. 56(a).

Ms. Donnelly’s actions resulted from a clerical error regarding Ms. Campbell’s name and her reliance

on Midland to provide accurate information. Upon being notified that the debt collection was

barred by res judicata, Ms. Donnelly immediately withdrew the complaint.

1.1 Ms. Donnelly’s bona fide error was unintentional because she was not aware that the

debt she filed is barred by res judicata, due to a factual misinterpretation and not a mistake

of law.

Ms. Donnelly’s violation of the FDCPA was made unintentionally considering she did not know

that the debt collection action she filed was barred by res judicata and she did not violate nor made a

mistake to any law.

4
A defendant must illustrate that the FDCPA violation occurred without deliberate intent and the

debt collector is only required to prove that the specific violation was unintentional. 15 U.S.C. §

1692k(c). If the deliberate intent does not exist like in the case of reliance on invalid client data, it is

found to be a bona fide error and not an intentional error. Abdollahzadeh v. Mandarich Law Group

LLP, 922 F.3d 810, 817 (7th Cir. 2019). The violation of law on the other hand, even if done by

good faith or misinterpretation, is an invalid argument to assert bona fide error defense.

Abdollahzadeh, 922 F.3d at 817. However, if the error was as result of a genuine factual mistake, it is

considered a bona fide error and not a violation of law. Jerman v. Carlisle, 559 U.S. 573, 587 (2010).

In Abdollahzadeh, the defendant argued its violation of the FDCPA was unintentional, relying on a

third party’s information, and claimed the bona fide error defense without misinterpretation of any

laws. Abdollahzadeh, 922 F.3d at 817. The unintentionality requirement aims to protect debt

collectors from liability for minor, factual errors that occur despite reasonable efforts to avoid

mistakes.15 U.S.C. § 1692k(c). On the contrary, if a misinterpretation does occur without a third-

party providing information, it still must be a misinterpretation of law and not facts for it be

considered unintentional. Jerman, 559 U.S. at 587. This was demonstrated In the Jerman case, where it

was held that a debt collector cannot invoke a bona fide error defense for violations caused by

mistake or misinterpretation of the law. Jerman, 559 U.S. at 587.

Ms. Donnelly’s unintentional violation occurred without deliberate intent because she did not

misinterpret the law, rather, she was not aware that the debt was barred by res judicata and did not

intend to force the applicability of the debt collection. (Donnelly’s Deposition, p.3:18). Had Ms.

Donnelly made a mistake of law, it would be logical to hold her liable for violating the FDCPA,

though the main mistake prior to filing the debt collection was the lack of Ms. Campbell’s actual

name that would have prevented filing a debt that is barred by res judicata. This mistake occurred

5
despite prior docket checks by both the Philadelphia Court of Common Pleas and Ms. Donnelly’s

client, Midland. (Donnelly Dep. 3:12–14; Stansfield Dep. 3:12–15).

Ms. Donnelly’s actions were entirely unintentional and qualify for the FDCPA’s bona fide error

protection, as the error was a clerical mistake made by a third party that is factual, unintentional, and

not of law.

1.2 Ms. Donnelly’s action in filing a second debt collection was an actual bona fide error as

the mistake was made unknowingly, in good faith, and without intent to violate the law due

to a clerical error.

Ms. Donnelly’s Mistake was actually bona fide and made in good faith, without any bad intent. It

was an honest factual error, resulting from a clerical mistake by the Philadelphia Court of Common

Pleas, and there was no intention to initiate a second action against Ms. Campbell.

Bona fide error is understood to mean “an error made sincerely, in good faith, and without fraud or

deceit.” Bona Fide error, Black’s Law Dictionary (11th ed. 2019). The FDCPA accidental violations are

excusable and considered bona fide if they stem from a factual error made in good faith with no

intention to harm debtors or exposing private information about them to third parties. Dinaples v.

MRS BPO, LLC, 934 F.3d 275 (3d Cir. 2019) (citing Daubert v. NRA Group, LLC, 861 F.3d 382 (3d

Cir. 2017)). A debt collector’s legal error will not qualify for the bona fide error defense under the

FDCPA. Jerman, 559 U.S. at 587. In clerical error situations made by third parties however, mistakes

are considered not only factual, but also done in good faith. Hyman v. Tate, 362 F.3d 965, 969 (7th

Cir. 2004); Johnson v. Riddle, 305 F.3d 1107, 1113 (10th Cir. 2002).

The Supreme Court in Jerman clarified that only errors caused by legal mistakes, rather than errors of

facts, cannot qualify for the bona fide error defense as they shall be considered from bad faith when

they happen to prove harmful intent unless there is a factual mistake. Jerman, 559 U.S. at 587.

6
Following this reasoning, the Third Circuit has held that the FDCPA violations are bona fide when

they stem from a factual error, as stated in Dinaples, 934 F.3d at 278. Distinguishing between the

“factual” and “legal” mistakes was also recognized in the Hyman case, where it was clearly

highlighted that clerical mistakes are factual and not legal mistakes in the FDCPA debt collecting

processes because it was held that failing to update records in clerical oversight like sending

bankruptcy letters is not a legal mistake. Hyman, 362 F.3d at 969. In Johnson though, the tenth circuit

discussed the possibility of asserting the bona fide error defense extending to potentially mistakes of

law if the defendant had taken procedures to avoid the violation of FDCPA prior to it; the focus on

the procedures prong, rather than the good faith prong, stems from the absence of clerical mistakes,

which typically classify as factual errors. Johnson, 305 F.3d at 1113.

Ms. Donnelly was unaware that the debt was barred by res judicata when she filed it, as she was on

maternity leave when the first lawsuit was initiated. (Donnelly Dep. 3:12–14). This mistake was not a

legal error, but a factual oversight made sincerely, in good faith, and without fraud or deceit. The

error can be traced to a clerical mistake by the Philadelphia Court of Common Pleas staff, who

misspelled the debtor’s name as “Cambell” instead of “Campbell”. (Stansfield Dep. 2:24). Ms.

Donnelly had no bad faith or harmful intention towards Ms. Campbell; she acted in good faith by

promptly withdrawing the complaint once she was notified of the factual error. (Donnelly Dep.

1:13).

Ms. Donnelly acted in good faith and the error is not only factual but is also an actual bona fide

error under the oversight of a clerical error.

1.3 Ms. Donnelly had procedures reasonably adapted to avoid the violation of FDCPA and

has valid reasons to prove that the bona fide error defense should be asserted.

7
Ms. Donnelly satisfies the third prong for asserting the bona fide error defense because she

maintained procedures reasonably adapted to avoid such error by attending annual FDCPA courses,

relied on her client Midland within debt collection processes, and corrected her action when notified

of the error.

The analysis of procedures under the bona fide error defense requires a defendant to demonstrate

that the violation occurred "despite the maintenance of procedures reasonably adapted to avoid such

error." 15 U.S.C. § 1692k(c). For instance, training employees on FDCPA compliance is considered

a reasonable procedure under the bona fide error defense. Pasquale v. L. Offs. of Nelson, 940 F. Supp.

2d 1151, 1160 (N.D. Cal. 2013). Additionally, relying on a client’s information with the intent to take

corrective actions, if necessary, is also recognized as a procedure to prevent errors. Lavallee v. Med-1

Solutions, LLC, 932 F.3d 1049 (7th Cir. 2019); In re Robert J. Snyder, 472 U.S. 634 (1985).

Ms. Donnelly’s reliance on Midland’s information was a reasonable precaution to prevent errors; her

consistent participation in FDCPA training and her immediate withdrawal of the lawsuit upon

discovering the prior litigation reflect her commitment to complying with the FDCPA. (Donnelly

Dep. 3:12–14; Stansfield Dep. 3:12–15). Besides, even if Ms. Donnelly had performed a docket

search instead of solely relying on Midland, the clerical mistake still would have existed because it

was a clerical mistake done by the Philadelphia Court of Common Pleas. (Stansfield Dep. 3:18-24).

The the docket search is registered with the name 'Cambell' instead of 'Campbell', see

https://fjdefile.phila.gov/ (last visited Nov. 2, 2024); Results for Dockets, Bloomberg Law,

https://www.bloomberglaw.com/product/blaw/search/results/efd406a1725d89b344c80e0ba6592f

7e at 17 (last visited Nov. 3, 2024).

1.3.1 Ms. Donnelly relied on her client Midland Funding LLC and that is considered a

procedure to avoid a violation of the FDCPA.

8
Ms. Donnelly’s case takeover following her maternity leave constituted an error because she relied

on her client Midland to only transfer valid cases to her after running a docket search of case

validity.

Relying on a client constitutes a reasonable procedure by a defendant to avoid the violation of the

FDCPA, if the reliance seemed to be factual. Jerman v., 559 U.S. at 581. The procedures must be

regular, orderly, and designed to avoid errors without the defendant knowing about the defected

action by their client. McCollough v. Johnson, LLC, 637 F.3d 939, 945 (9th Cir. 2011).

The definition of "procedure" encompasses a series of steps that are routinely followed in an

organized manner to prevent mistakes. Procedure, Webster's Third New International Dictionary 1807

(Philip Babcock Gove ed., 1976). While legal errors are excluded from the bona fide error defense,

the reliance on data provided by clients is generally accepted as part of a regular procedure to avoid

clerical errors and that’s what was elaborated by the supreme court in Jerman, where the Court

distinguished between errors of law and clerical or factual errors. Jerman v., 559 U.S. at 581. Contrary,

relying on a client can in some cases not be considered as a procedure if the defendant “knowingly’

files a debt collection case that is deceptive, but will not be liable if it was done “unknowingly”; in

the 9th circuit, where relying on a client is not considered a procedure. McCollough, 637 F.3d at 945.

The McCollough case court emphasized that the debt collector’s reliance on client data did not qualify

for the bona fide error defense because the law firm continued to act on incorrect information even

after being notified of a clear factual error. McCollough, 637 F.3d at 945.

Ms. Donnelly relied on Midland’s data representing a procedural reliance, and not a legal error

because the FDCPA allows debt collectors to reasonably rely on client-provided information as part

of the error-prevention measures, as long as that reliance is part of an organized process. (Donnelly

Dep. 3:12–14; Stansfield Dep. 2:24–3:4). Ms. Donnelly encompassed a series of steps that are

9
routinely followed in an organized manner considering her regular reliance on midland. Midland

transfers cases to her before she files a debt collection to make sure that the cases she files are

actionable, this method took place in every previous debt collection process. (Donnelly Dep. 3:12–

14).

Ms. Donnelly was unaware of any errors until notified of the prior lawsuit after filing the second

suit. This lack of knowledge indicates that the awareness factor is absent, reinforcing that her

reliance on Midland as a client was part of a reasonable procedure to prevent errors.

1.3.2 Ms. Donnelly attended training as a precaution to violating any FDCPA provisions.

Ms. Donnelly fulfills the third element of asserting the bona fide error defense because she attended

annual FDCPA training by the Pennsylvania Bar Institute and ACA International seminars to avoid

violating the FDCPA.

A debt collector is not liable if they can show, by a preponderance of the evidence, that the violation

occurred despite procedures reasonably adapted to avoid an error. Ross v. RJM Acquisitions Funding

LLC, 480 F.3d 493, 497 (7th Cir. 2007). This includes attending on going seminars, training, or

courses provided by the FDCPA which are considered reasonable procedures under the bona fide

error defense. See Hartman v. Great Seneca Fin. Corp., 569 F.3d 606, 609 (6th Cir. 2009). This is

conditioned to if the course attendance is on “occasional” basis and not a one-time attendance. Rush

v. Portfolio Recovery Assocs. LLC, 977 F. Supp. 2d 414 (D.N.J. 2013).

In Ross, the defendant’s procedures to avoid dunning a debtor for a discharged debt, including

conducting bankruptcy searches and agreements with firms to avoid such errors, were deemed

reasonable under § 1692k(c). Ross, 480 F.3d at 497. Similarly, in Hartman, the lack of ongoing

FDCPA training by the defendants affected the case outcome. The court found that the defendants

did not present evidence of procedures, such as ongoing training, to avoid the type of legal error

10
that occurred. Hartman, 569 F.3d at 609. As a result, the defendants failed to qualify for the bona

fide error defense. However, this kind of procedure specifically must be occasionally as one-time

attendances are considered insufficient as the Rush case illustrated that simply having procedures on

paper is not enough; they must be demonstrated to be effective and “consistently” applied. Rush,

977 F. Supp. 2d at 421.

Ms. Donnelly attended the FDCPA training offered by the Pennsylvania Bar Institute and the ACA

International on an occasional basis, as she attended the courses annually, demonstrating her

commitment to complying with the FDCPA and her efforts to establish procedures to prevent

errors; This shows, by a preponderance of the evidence, that the violation occurred despite

procedures reasonably adapted to avoid errors, satisfying the requirements for the bona fide error

defense. (Donnelly Dep. 22:5–10).

Therefore, Ms. Donnelly’s training is not only relevant but a crucial part of her defense proving the

bona fide error doctrine considering that her course attendance is a valid procedure taken to avoid

such errors.

1.3.3 Ms. Donnelly withdrew the complaint once she was notified that it is barred by res

judicata, which means she conducted a postal diligence procedure immediately.

Ms. Donnelly’s corrective action after filing the complaint shall be considered a “supporting”

diligent procedure in accordance with asserting the bona fide error defense, combining both the

apologetic status and the immediate action upon being notified of the error.

The motion for summary judgment can be granted when the defendant withdraws a defected lawsuit

as a “corrective” procedure after proving by preponderance of evidence that the defendant had

already took procedures prior to the withdrawal to avoid such error. Jerman, 559 U.S. at 581.

Although corrective actions can’t invoke a valid defense solely if the violation was civilly by

11
mistaking the law because it is not an element to asserting bona fide error defense, 15 U.S.C. §

1692k(c)., the corrective actions can still be proof that the diligence intention exists when a

defendant immediately blocks the genuine mistake they did as a regretful reaction. In re Robert J.

Snyder, 472 U.S., 642. See also Thirty Hogsheads of Sugar v. Boyle, 13 U.S. 191 (1815).

When an error occurs by a defendant, it is not sufficient to solely correct it with no procedures or

efforts prior to the mistake of law; as the Johnson case emphasized that the defendant can’t simply

violate a law and fix it without having any other supporting factors tied to the explanation of the

genuineness in the mistake. Johnson, 305 F.3d at 1113. However, when a defendant combines having

done procedures to try avoiding the error occurred on top of showing “apologetic” expressions like

what was missing in the In re Robert J. Snyder (where the court held that had only the defendant

expressed or done an apologetic action), as it would’ve been a supporting factor to believing that the

violation they did was justified), it is a very solid proof to determine fulfillment of the bona fide

error defense. In re Robert J. Snyder, 472 U.S. at 642.

Ms. Donnelly was notified by the plaintiff’s representative that she mistakenly filed a debt collection

complaint that is barred by res judicata. (Donnelly Dep. 18:5–10). Upon her notification, she

immediately withdrew the complaint, knowing that it was defective. (Donnelly Dep. 18:5–10). Ms.

Donnelly's prompt corrective action complies with the FDCPA provisions because her actions were

“continuous” rather than “initiative” after resuming practice when the case was filed during her

maternity leave. (Donnelly Dep. 3:12–14). She withdrew the complaint once became aware that the

debt is barred by res judicata. (Donnelly Dep. 1:11).

Ms. Donnelly's withdrawal of the complaint should be considered a procedural step taken within the

third phase leading up to the lawsuit because acted in good faith through all phases that included her

being on maternity leave prior to filing the complaint, a clerical error made by the Philadelphia Court

12
of Common Pleas when filing the complaint, and an immediate withdrawal of the complaint

afterwards.

1.4 Ms. Donnelly’s assertion of the bona fide error defense under the FDCPA should be

upheld by following the interpretations of the 7th and 3rd Circuits in align with the

congress’s aim of balancing between the debtors and debt collectors’ rights.

Ms. Donnelly’s assertion of bona fide error defense should be under the application and precedents

of the 3rd and 7th circuits’ interpretations that best capture Congress’s intent behind enacting the

FDCPA aiming to balance between protecting debtors and debt collectors.

The Congress enacted the FDCPA to balance between the rights of debt collectors and debtors with

no biased legislation. 15 U.S.C. § 1692. The bona fide error defense allows debt collectors to avoid

liability if they can show that the violation was despite the maintenance of reasonable procedures to

avoid such factual errors. Jerman, 559 U.S. at 581. Enacting the FDCPA resulted from the influence

of the Truth in Lending Act (TILA) by the congress. S. Rep. No. 95-382, at 1-2 (1977).

Congress enacted the FDCPA to eliminate abusive debt collection practices while also providing

debt collectors a reasonable safeguard for unintentional errors. 15 U.S.C. § 1692. The Supreme

Court in Jerman held that the defense does not cover mistakes of law but reaffirmed its applicability

to factual or clerical errors if reasonable preventive procedures are in place. Jerman, 559 U.S. at 581.

This brings into line with enacting the FDCPA in 1977, where the congress incorporated the bona

fide error defense from the Truth in Lending Act (TILA). S. Rep. No. 95-382, at 1-2 (1977). At that

time, several Federal Courts of Appeals interpreted TILA’s defense as covering only clerical errors,

not legal errors, and Congress gave no indication of disagreement. See Mirabal v. Gen. Motors

Acceptance Corp., 537 F.2d 871, 878 (7th Cir. 1976); Palmer v. Wilson, 502 F.2d 860, 862–63 (9th Cir.

1974). Although Congress amended TILA in 1980 to exclude legal errors, it did not make the same

13
change to the FDCPA, suggesting that the FDCPA’s bona fide error defense remains focused on

factual mistakes like clerical errors. Truth in Lending Simplification and Reform Act, Pub. L. No. 96-

221, § 615, 94 Stat. 168, 180 (1980). This reflects congressional intent for a fair application of the

defense. Similarly, the third circuit emphasized the importance of implementing reasonable

procedures to prevent errors, aligning with the FDCPA’s purpose to balance consumer protection

with fairness to debt collectors, where both parties share the burden of proof. McLaughlin v. Phelan

Hallinan, 756 F.3d 240, 247 (3d Cir. 2014). The court implied in McLaughlin, that a debt collector

couldn’t merely claim that an error was unintentional to assert a bona fide error defense; and to

ensure fairness to the debtor, the debt collector must also demonstrate that it had effective

procedures in place to prevent such mistakes, upholding both parties’ rights in the process.

McLaughlin, 756 F.3d at 247.

Ms. Donnelly’s case fits within the framework outlined by the 7th and 3rd Circuits. Her reliance on

Midland as a client, along with her actions such as maintaining attendance at lectures and courses

provided by the FDCPA and taking prompt corrective measures like withdrawing the complaint

immediately when a mistake was discovered (Donnelly Dep. 3:12–14; 22:5–10)., is not only

equivalent to what the congress intended the debt collectors to prove in addition to fulfilling the

unintentional element, but also a complete application to the FDCPA’s criteria to balance the rights

of debtors and debt collectors. Had Ms. Donnelly only stated unintentionality, the balance between

the parties rights would be unfair. However, she also raised the proof of procedures to meet the

bona fide error defense elements and the congress’s aim to protect debt collectors.

The 7th and 3rd Circuits provide a fair line of holdings to the FDCPA violations and Bona fide

error defense. These circuits better reflect Congress’s intent in passing the FDCPA, emphasizing a

fair balance between protecting consumers and recognizing the efforts of debt collectors to prevent

14
genuine errors. The 7th Circuit provides a more consistent and reliable interpretation compared to

the 9th Circuit where the scope of mistakes is much broader than what the congress intends to

cover.

Conclusion

For the foregoing reasons, the Defendant, Ms. Marcia Donnelly, respectfully requests that this

Honorable Court grant her Motion for Partial Summary Judgment based on the bona fide error

defense under 15 U.S.C. § 1692k(c) and Federal Rule of Civil Procedure 56(c).

Dated: 11/11/2024.

Respectfully submitted,

Student # 8243
1719 N Broad St
Philadelphia, PA 19122
(215)-947-2073
Counsel of Record for
Ms. Marcia Donnelly
Civil Action No. 21-707

15