4th Circuit: McLean v. Ray- Bona Fide Error Defense under FDCPA for Debt Collection Attorney allows reliance on Creditor’s Statement of Amount Owed

Summary:

Ms. McLean was first admitted to ManorCare, a nursing home, in July 2006, signing a contract (through her son, James McLean, who held her Power of Attorney) agreeing to all costs, including attorneys’ fees, for collection of unpaid amounts. The contract provided that it would remain in effect if she was discharged but re-admitted within 15 days. In 2007, following her discharged from the nursing home, Mr. Ray sued Ms. McLean on behalf of ManorCare, with the matter being resolved by the parties.

Ms. McLean was re-admitted approximately to the nursing home about 20 months later, without signing a new contract and payment disputes arose a second time, with Mr. Ray eventually again filing suit against her. The lawsuit incorrectly asserted, however, that Ms. McLean had continuously resided in the nursing home and as such was liable for attorneys’ fees and costs under the original contract. Despite being alerted of this error, both by the McLean and also by his own secretary, Mr. Ray did not remove the demand for attorneys’s fees for several months. Additionally, Mr. Ray sought to have a guardian and conservator appointed for Ms. McLean, alleging that the non-payment of the nursing home bill constituted neglect by her son. Ms. McLean brought a multiple count FDCPA claim against Mr. Ray, with the pertinent assertion on appeal being that Mr. Ray misrepresented the amount of the debt by including attorneys’ fees. The District Court granted summary judgment and Ms. McLean appealed.

The Court of Appeals affirmed, holding that pursuant to Amond v. Brincefield, Barnett & Assocs., P.C., 175 F.3d 1013 (4th Cir. 1999) lawyers “cannot be held liable for what appears to be an honest dispute regarding the amount of the debt, so long as there exists a color able factual basis for the higher amount claimed by their client.” As such, Mr. Ray was permitted to rely on his client’s word, even if a careful review of his own files would have contradicted such word.

For a copy of the opinion, please see:

McLean v. Ray- Bona Fide Error Defense under FDCPA for Debt Collection Attorney allows reliance on Creditor’s Statement of Amount Owed.pdf

About

1. Bachelor of Arts degree in English Literature from Washington University, 1993. 2. Juris Doctor degree from George Washington University, 1996. Admissions to Practice of Law: North Carolina Bar, 1996. Federal District Courts for the Eastern and Middle Districts of North Carolina. Specialty Certification: North Carolina State Bar: Certified as a Specialist in Consumer Bankruptcy. Areas of Practice: Practice limited to consumer and business debtor bankruptcy law, 1998 to present. Memberships: National Association of Consumer Bankruptcy Attorneys (NACBA). North Carolina Academy of Trial Lawyers (NCATL). North Carolina Bar Association, Bankruptcy Section. Lectures prepared and presented: North Carolina Academy of Trial Lawyers seminar on bankruptcy; Topic: Counseling the Consumer Debtor Prior to Court - C.Y.A. Forms to Help 'Gird They Loins'; 2001. Middle District Bankruptcy Seminar; Topic: Preparing Chapter 13 Plans; 2002. NACBA National Convention; Topic: Efficient Office Practices; 2003. NACBA National Convention; Topic: Chapter 7 vs. Chapter 13 Debates; 2004. Middle District Bankruptcy Seminar; Topic: Chapter 7 & 13 Hot Issues; 2004. Positions held: NACBA National Convention; Convention Chair; 2008. NACBA National Convention; Panel Moderator: Topic: Basic Bankruptcy Issues; 2008. NACBA National Convention; Panel Moderator; Topic: Chapter 13-Disposable Income and Other Issues; 2007. NACBA National Convention; Panel Moderator; Topic: Representing Members of the Military and Their Families; 2007. NACBA, Member of National Board of Directors, 2006 to present. NCATL, Chair of the Bankruptcy Section, 2003 to 2007. NACBA, Chair of the North Carolina Section, 2003 to 2007. NC Bar Association, Bankruptcy Section, Bankruptcy Council Member, 2004 to present.

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