An Alexandria, Virginia, lawyer was protected from a Fair Debt Collection Practices Act violation suit by alleging a “bona fide error defense” in claiming attorney fees under an expired contract. The nursing home contract had expired by the time the attorney claimed his attorney fees, though upon discovering this fact he sought to amend his suit. The ruling in McLean v. Ray comes down in an unpublished opinion of the 4th U.S. Circuit Court of Appeal that looked to similar language in an earlier opinion examining the same legal defense under the Fair Debt Act.
The nursing home patient, Edith McLean, had left the nursing home for a 20-month period, allowing the contract to lapse. The debtors, Edith’s son James and his wife, claimed lawyer Ronald A. Ray should have been quicker to catch the error. The appeal court found that he had been “diligent in investigating the matter” and removed the claim “as soon as he was able to confirm the contract no longer applied.” For debt collection attorneys the most educational aspect of this episode is the prism through which the appeal council viewed Ray’s behavior:
“At bottom, our inquiry focuses on whether the procedures Ray employed were reasonably adapted to avoid error. We are satisfied that they were, and that Ray is thus entitled to the benefit of the bona fide error defense,” wrote Judge Albert Diaz for the panel.
