lackey your honors me please the court my name is brian palmer going to represent the plaintiff appellant william j wagner in this case this case boils down to two questions first whether a national communications targeting the wrong security number he gave it's not clear whether it was the last two or the last four of a social security number and his birth date and his birth and the year of his birth of them that and he told them that they still sent him initially loved well william j wagner jr initially lived and then they let the case said from roughly two thousand and eleven to two thousand and fifteen come two thousand and fifteen they ran they assigned the case to another lawyer she pulled up a lexus nexus search which they did not keep a copy of and then they proceeded to come after our client the plaintiff in that year was for rand yes and at some point they discovered that williams they were agner the plaintiff here oh and his house since the eighty's did they discover that that was actually there was actually are intuitive to think that someone who own the house for that length of time would have accumulated a rental debt isn't that true absolutely your honor not only was it a rental it was a rental for that for subsidized housing because the renter the person the debtor had represented that he lived with his parents at a different and different town application for the housing right yes and in fact that address matched the naturists that was on the lex nexus report that they pulled and showed that his parents were still living there so it corroborated what he had put into his what he had put into his apartment application back in two thousand and five i believe it was there's also anot up to a one thousand dollars plus the chinese fees and cost plus an actual damages for his emotional distress and he's really away i mean do you go to the hospital and had to be have had to take psychiatric medication because he was so distressed it's garden variety emotion rising emotional distress damages so we're not talking about break maybe the attorney's fees by now given the resistance to this claim by the  a very old debt for under two thousand dollars presumably what they stand as the lawyer for the creditor to gain is from this whole operation is rather modest why has there been all kinds of reasons to protect their reputations because they're really annoyed or whatever and it's not for me to tell him not to but it is it does strike me as a very peculiar case to be here and i'm not i mean i don't think i've ever  just to overturn the summary judgment in their favor but when we get to issues of did they have reasonable procedures let's acknowledge that was a mistake let's acknowledge that those procedures broke down let's acknowledge that they really should have at least a reasonable jury could find that they really should have consulted their own files better and determined that they shouldn't be here and they shouldn't be pursuing your guy isn't that something that ultimately a jury has to decide as to whether these procedures that they allegedly had in place a were really there be were in fact reasonable procedures and see whether this was a kind of good faith or not your honor ordinarily i would say you yes it's clearly a question of fact but the key is there's not really that much dispute over the facts we have the we have ms over back who was conducting who sent the  for service admitting that at that point she did not believe you know she did not believe that she did not know frank know one way or the other she didn't know one way or the other so she didn't know one way or the other that's not a reasonable procedure as a matter of law in addition we have ms over back all the way after she was contacted by plaintiff's counsel not by me local counsel in the buffalo area it was only then and this is quoting from the notes pulled physical file copy of lease ledger original pleadings confirm the starter's s s number they didn't pull the file till the very end and they still have not withdrawn sitting out there in limbo and some kind of strange abeyance or forbearance whatever you want to call it but it can and what about the restraining notices that still in effect and i understand that under new york law it would not be effective at the end of the day if it's the wrong it served on the wrong person and now everyone seems to be knowledge is the wrong person but at the same time if i want if mr wagner was going to sell his house and i was thinking of buying it would i encounter title search some restraining orders or is that been withdrawn well it hasn't been withdrawn but i believe it expires after a year unless there's some kind of renewal of what its effect would be in the event that served on the wrong person is an interesting question would be any right but you know once one one once you've got someone coming after you know pulling the physical file only when a lawyer gets involved that's not meaningful attorney involvement if we go back to the miller versus well past case from two thousand three you know you've got to have meaningful involvement you have to have meaningful review not pulling the file your own your own office file this isn't even requesting stuff from the defendant this stuff is already in the file presumably from the prior lawyer who worked on it up until two thousand and eleven there is no excuse for that and as a matter of law i believe that there should be found to be no bonafide error nevertheless of the court doesn't want to go that far i can certainly understand that  as you were in there something on both sides to be thought about here in terms of risks litigation is what there is there is one thing i can talk about with respect to what i think is going on here was the case as a result the defendants did win another case involving bona fide error a number of years ago against those i believe was against a different firm and that may have empowered them to feel let's press ahead and maybe they'll feel differently after this day and it's possible all right is there some time for a battle it please the court katherine howard on behalf of carrie and a lucky i want to take a moment to really discuss the record in this case and address some of the allegations about whether or not carrying a lucky review into the file or had information in the file that would have put them on notice had they done a reasonable review that they had the wrong address undisputed in the record wrong address but the wrong person they had the correct person william j wagner communications were addressed to william j wagner jr are you going to join us it's an am but it wasn't him it did it was not received by him i agree and the reason for that is because carrying lechi did a reasonable search they did search their file and i do want to just correct a perhaps a misconception that hearing like he did not search it's file or review it's file before undertaking the debt collection efforts after he called to say this isn't me i think before that you know debatable you know whether it's  good or not but once he calls and says you got the wrong person absolutely so after the appellant called he provided to the last two digits of his social security number it's not in dispute whether he gave two or four he gave to and he gave the month and year of his date of birth not his not the full date so that was an insufficient amount of information just based on that for him what's what's the use your client have any written procedures for what's supposed to happen in this situation when there's a call that says you've got the wrong person there are no written procedures but there is a procedure in place and that procedure is as follows st the person who takes the call records the information they record what the caller says in this case that someone called disputed that they had received that collection communication that was not for them and that they had provided two digits of their social security number in the st call and the month of date of birth and the nd call the next part of the procedure is that after they record that information they notify the attorney who's working on the case again that occurred here the next part of the procedure is that the attorney who's working on the case does not send a subsequent follow up that collection effort until they check the file again that occurred here which was why ms over back was aware of the dispute the next step is if the attorney using reason judgment and experience and some of that experience is the individual's call and they say that they are not the debtor and they provide could be the real guy and you could make up any date of birth you want to make up any social security number so i understand that you may not be required to believe what the person says i don't understand the argument that if i give two digits or four digits or any digits of my social security number and it does not match the that is sufficient information if believed right it's not why would he have to give you more digits sufficient information like four digits or a date of birth like you could have run a search and they could have seen there is a person named william j wagner that matches but with just two digits it wasn't enough nevertheless carry on his procedures are not to simply continue to collect when someone disputes for their question you say these are the procedures because that's what mr intellect he says or his procedures why isn't it up to a jury to decide whether they believe that given a it's not written down b there is considerable information here that suggests that if the procedure does not call for someone to look back at their actual files and see whether this matches in any way done which certainly casts some doubt on what mr like he says or the invariable own written but well understood within the firm apparently why aren't all of these jury questions  i do think if this court were to remand for a jury that there would be sufficient for mation obviously for a jury to consider and i believe would find that the procedures were reasonable here though the record of the record point for you excuse me is whether and a few points to that your honor st the fact that the procedures are right not written down is not fatal to the bonafide air defense and it's not if the jury believes that they really existed absolutely and here not only did mr lucky testify as to what the procedures me to the very important point that they did check the file both before they began their debt collection activities and again after mr after mr wagner called it to dispute that he was not the debtor they followed their procedures by not simply continuing to send a letter out blindly they double checked all their work they ran the searches again they did all of that and i do want to just direct the court to get the searches again what is it all  in your file of the original dead there's an application for the apartment that the debtor ran up the rent on is that in your files there is a i want to be very there is an application for the lease and in that apple east application the debtor says i have lived with my parents for the last forty five years they are my only landlord references however and is there an address where those people live where he says he lived there suggests that it's a reasonable belief on anybody's part at the firm that william where junior may have resided at the address of william whitney the point tell me what that is based on similarity of name absolutely ms over background alexis search using william j wagner jr and his complete social security number that lexis search turned up a list of addresses ms over backward viewed that search she reviewed the file and this is how we know that she reviewed the file before she began the search and we know that she looked at the lease before she began the search because she compared the addresses on alexa search this is in her testimony and i can give the record cites that the court would like she compared that addresses on alexa site to what the file showed she compared to and saw that they had already they had already tried to contact the daughter at the st two addresses and then had turned up from of the post office and from you know contact other contacts at that that are no longer resided there so what on earth makes you think that someone named william well might just happen to live with another guy who has the same name who there's no reason whatsoever to think there's any connection  in the way i read them i understand the record the lease application in two thousand and five said i have lived with my parents address a when i believe it was hartford road then in two thousand and fifteen or also shows you that this william whitner has owned this house since one thousand nine hundred and eighty four no it does not and that i think is a very important point that i was hoping to get across the lexus report does not and the real info report does not the real info report judgment so is it possible that carrying a lucky could have gone they could have gone an extra step and pulled the mortgage indeed yes of course it's possible but the bonafide air defense does not require a debt collector to take every conceivable precaution to avoid against error it requires reasonable procedures and hear those reasonable procedures included reviewing its file comparing comparing the addresses to the addresses on a lexus report that was and fifteen is that not and i understand that this may not be the original lexis nexis report which may have been destroyed but isn't it agreed by the parties that the new that is the period during which this family william g way agnew william j way william and julia leona way ignorant lived at that address it's certainly possible that that's what it suggests however you're telling me that no reasonable juror could think that that's something that if you saw that on the address you're not supposed to try and put that together with the information that you have and decide whether this is a reasonable person to pursue that of course a mistake was made but the question is what reasonable procedures have prevented that mistake and i'm having trouble understanding myself let alone concluding that as a matter for summary judgment no reasonable juror could conclude that once somebody says i'm the wrong guy i have nothing do with this gives you some information that if believed certainly tells you that he's not the debtor and no you're thinking maybe the debtor lives there and your only reason to think that is that this william or is one of half a dozen william wegner is that live somewhere in this vicinity why would necessary not understood to be nine different one million wagners and could they be there understood to be possible addresses for wagner jr the debtor i do see and understand absolutely what your honor pointed out about the dates those something may have gone perhaps overlooked that does not mean that the bonafide air defense does not apply as a matter of law and i would just point this court to the abdo in the th circuit there was found as a matter of law that the bonafide air defense applied even though the debt collector could have put together the information that was in its file to realize that it was accidently collecting on the time of our debt and for those reasons we would ask that this court affirm the district court thank you the situation i'll have to double check the c p l are with respect to you there's only one other matter of fact i'd like to straighten out there's the claim that the file was and then you jump down a couple of lines pulled physical final copy of lease ledger original pleadings confirm the stairs social security number ok there's it seems that the defendant maybe this is a question physical file which had been created by the prior attorney working on the matter up until two thousand and eleven and by anyone who'd worked on it before that i mean that doesn't mean that you file on some previous occasion that means on that date in response to that phone call she went and looked you up this is this is a contemporaneous records around and we're not going to get much better than the us i mean i just haven't looked at this entire record and maybe the maybe you can dr significant inference if there is no prior reference to pull in but you know i soon and all the years that this that has been pending the file doesn't sit on the same person's desk the whole time if you want to go look at it you go look at it that doesn't mean you've never looked at it before true but she had worked on the file before presumably the st thing you do when you take over a fire after a four year h granted yours was denied and you're appealing both parts of that ruling right so we would certainly i'd rather go i'd rather go in front of a jury having already won on the issue of liability