Ronald Oliva v. Blat, Hasenmiller, Leibsker & Moore LLC | 7th Circuit Overrules FDCPA Bona Fide Mistake Case


Ronald Oliva v. Blat, Hasenmiller, Leibsker & Moore LLC | 7th Circuit Overrules FDCPA Bona Fide Mistake Case

Ronald Oliva v. Blat, Hasenmiller, Leibsker & Moore LLC | 7th Circuit Overrules FDCPA Bona Fide Mistake Case

H/T Dubin Law


In a divided en banc decision, the U.S. Circuit Court of Appeals for the Seventh Circuit has reversed (by vote of 7 to 4) a 2016 decision that a law firm when acting as a debt collector was shielded from liability under the Fair Debt Collection Practices Act when it relied on precedent that was subsequently overruled. The prior decision was described in this blog here.

The issue is the extent of the bona fide error defense that is provided by the Fair Debt Collection Practices Act for debt collectors who make a mistake despite having procedures in place to avoid such mistakes. A 2010 U.S. Supreme Court decision holds that the defense does protect mistakes of law.

A prior three-judge panel of the Seventh Circuit had concluded that relying on a controlling appellate court decision was not a mistake of law and that the law firm had made no legal error even though the decision was later overruled.


PDF at the 7th Cir. was not downloading so I have copied the opinion below.


Page 1
In the
United States Court of Appeals
For the Seventh Circuit
No. 15-2516
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:14-cv-06447 — Elaine E. BuckloJudge.
AUGUST 23, 2016 — DECIDED JULY 24, 2017
Before WOOD, Chief Judge, and BAUER, POSNER, FLAUM,
and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. We granted en banc review in
this case to maintain the uniformity of circuit law and to fol-
low applicable Supreme Court precedent. Under the Fair

Page 2
No. 15-2516
Debt Collection Practices Act, a debt collector who sues to col-
lect a consumer debt must sue in the “judicial district or sim-
ilar legal entity” where the debtor lives or signed the contract
in question. 15 U.S.C. § 1692i. In Suesz v. Med-1 Solutions, LLC,
757 F.3d 636, 638 (7th Cir. 2014) (en banc), we decided that the
“judicial district or similar legal entity” in § 1692i is the small-
est geographic area that is relevant for determining venue in
the court system in which the suit is filed. That geographic
area can be smaller than a county where the court system uses
such smaller districts. Suesz overruled our earlier decision in
Newsom v. Friedman, 76 F.3d 813, 819 (7th Cir. 1996), in which
we had held that for consumer debt collection suits in Cook
County, Illinois, the relevant “judicial district” was the entire
county and not the smaller municipal districts within the
The issue in this appeal is whether a collector of consumer
debts that violated the venue provision of the Fair Debt Col-
lection Practices Act, 15 U.S.C. § 1692i(a)(2) (“the FDCPA” or
“the Act”), can avoid liability on the ground that it was rely-
ing on Newsom as controlling circuit precedent interpreting
the statute when it committed the violation. The answer is no.
We decided this question in Suesz when we overruled the
circuit precedent in question and declined the defendant debt
collector’s request to make that ruling effective only prospec-
tively. 757 F.3d at 649–50. That result is also required by the
Supreme Court’s decision in Jerman v. Carlisle, McNellie, Rini,
Kramer & Ulrich LPA, 559 U.S. 573, 576 (2010), which held that
the FDCPA’s statutory safe harbor for bona fide mistakes does
not apply to mistakes of law. Under Suesz and Jerman, the de-
fendant cannot avoid liability for a violation based on its reli-
ance on circuit precedent or any other bona fide mistake of

Page 3
No. 15-2516
law. We vacate the judgment of the district court and remand
for proceedings consistent with this opinion.
In Part I, we summarize the facts and history of this case.
We then review in Part II the venue provision in the FDCPA
and in Part III the history of this circuit’s interpretation of the
venue provision as applied to small-claims courts in two
heavily populated counties in this circuit that have multiple
court districts within the counties. In Part IV, we turn to the
issue of retroactivity addressed in Suesz, and in Part V we ad-
dress the issue of mistakes of law addressed in Jerman.
I. Factual and Procedural Background
The relevant facts are not disputed. Plaintiff-debtor
Ronald Oliva had a credit card account while he was a student
in downtown Chicago and later worked there. Oliva fell be-
hind on the account, and the issuing bank eventually sold the
delinquent receivable account to another entity. On behalf of
that other entity, the law firm of Blatt, Hasenmiller,
Leibsker & Moore, LLC filed a collection suit in 2013 against
Oliva in the Circuit Court of Cook County. Oliva v. Blatt,
Hasenmiller, Leibsker & Moore, LLC, 185 F. Supp. 3d 1062, 1063–
64 (N.D. Ill. 2015) (Oliva I). For such relatively small claims,
the Circuit Court of Cook County divides the county into six
municipal districts for purposes of venue. Blatt Hasenmiller
filed the suit against Oliva in the first municipal district in
downtown Chicago.
At the time, Oliva did not reside in the first municipal dis-
trict. Under our decision in Newsom, Blatt Hasenmiller’s
choice of venue in the first municipal district within Cook
County was not required by the FDCPA but was permissible.
While the Oliva action was pending, however, we issued our

Page 4
No. 15-2516
Suesz decision on July 2, 2014. Eight days later, Blatt Hasen-
miller voluntarily dismissed the suit against Oliva and re-
funded the appearance fee that Oliva’s attorney had paid.
Later in 2014, Oliva filed this federal lawsuit under the
FDCPA alleging that Blatt Hasenmiller had violated the Act’s
venue provision, § 1692i, by suing him in a venue where he
did not reside and had not signed the contract in suit. 185 F.
Supp. 3d at 1064The parties filed cross-motions for summary
judgment. The district court granted Blatt Hasenmiller’s mo-
tion and denied Oliva’s motion. The district court held that
Blatt Hasenmiller had shown that its violation of the venue
provision in § 1692i was the result of a bona fide error in rely-
ing on circuit precedent. The court rejected Oliva’s argument
that Suesz should apply to Blatt Hasenmiller’s suit against
On Oliva’s appeal, a panel of this court affirmed. Oliva v.
Blatt, Hasenmiller, Leibsker & Moore, LLC, 825 F.3d 788 (7th Cir.
2016) (Oliva II). The panel concluded that the retroactivity
holding in Suesz should not be applied because Blatt Hasen-
miller was entitled to the safe harbor for bona fide mistakes in
§ 1692k(c). Id. at 791–92. The panel also found that the Su-
preme Court’s opinion in Jerman, holding that the bona fide
error safe harbor in § 1692k(c) did not apply to mistakes of
law, did not extend to mistakes of law based on controlling
circuit precedent. Id. Oliva petitioned for rehearing en banc
under Federal Rule of Appellate Procedure 35. He argued that
1 Blatt Hasenmiller had also argued that venue in the first judicial dis-
trict was proper on the ground that Oliva had signed the relevant contract
in that district. The district court did not address that argument, and we
leave it for consideration on remand.

Page 5
No. 15-2516
the panel decision conflicted with both our earlier en banc de-
cision in Suesz and the Supreme Court’s decision in Jerman.
We granted his petition. Because the issues were presented
sufficiently in the briefs and opinions under review, we
elected not to schedule a further oral argument in this case.
II. Venue Under the Fair Debt Collection Practices Act
The Fair Debt Collection Practices Act seeks “to eliminate
abusive debt collection practices by debt collectors.” 15 U.S.C.
§ 1692(e) (congressional purposes). One such practice is abu-
sive forum-shopping by debt collectors choosing the venues
for lawsuits to collect consumer debts. The Act requires:
Any debt collector who brings any legal action
on a debt against any consumer shall —
(1) in the case of an action to enforce an interest
in real property securing the consumer’s obliga-
tion, bring such action only in a judicial district
or similar legal entity in which such real prop-
erty is located; or
(2) in the case of an action not described in par-
agraph (1), bring such action only in the judicial
district or similar legal entity —
(A) in which such consumer signed the con-
tract sued upon; or
(B) in which such consumer resides at the
commencement of the action.
15 U.S.C. § 1692i(a).
Since the debt here was not secured by real property, our
focus is on paragraph (a)(2), which requires the debt collector
to file a collection suit in a venue where the consumer debtor

Page 6
No. 15-2516
either signed the relevant contract or resides. The provision
should prevent debt collectors from choosing venues that are
inconvenient for the debtor and/or particularly friendly to the
debt collector. The Act’s venue provision applies even where
the debt collector’s venue selection is permissible as a matter
of state law. Suesz, 757 F.3d at 648; id. at 653 (Sykes, J., concur-
ring) (as applied to debt collection actions in state court,
Ҥ 1692i must be understood not as a venue rule but as a pen-
alty on debt collectors who use state venue rules in a way that
Congress considers unfair or abusive”).
III. FDCPA Venue in the Seventh Circuit
In the three states in this circuit, almost all state trial courts
are organized county by county, so the relevant “judicial dis-
trict or similar legal entity” under § 1692i is ordinarily a
county. The sticky issue has been the meaning of “judicial dis-
trict or similar legal entity” in counties that divide their small
claims courts among court subdivisions that are smaller than
the entire counties. These are Cook County, Illinois (Chicago),
and Marion County, Indiana (Indianapolis).
In Newsom, we held that municipal department districts of
the Circuit Court of Cook County were not “judicial districts”
under § 1692i(a), and that the relevant “judicial district” for
Cook County was the entire county. 76 F.3d at 819. The prac-
tical effect of that decision was to allow debt collectors in
Cook County to choose freely among the six different munic-
ipal department districts, at least as far as the FDCPA was con-
cerned. In the wake of Newsom, debt collectors in Cook
County could file collection suits in municipal department
districts that were distant from the consumers’ residence or
the location where the relevant contract was signed.

Page 7
No. 15-2516
In 2014, however, we revisited the venue issue in a case
dealing with the nine township small-claims courts in Marion
County, Indiana, in Suesz, 757 F.3d 636. In Suesz, we overruled
Newsom and held that a “judicial district or similar legal en-
tity” under § 1692i is “the smallest geographic area that is rel-
evant for determining venue in the court system in which the
case is filed.” Id. at 638. That meant in Suesz itself that a col-
lection suit filed in a township other than where the consumer
resided or the contract was signed violated the Act.
The reasoning and holding of Suesz clearly extend to the
municipal department districts in Cook County, Illinois. It ap-
pears that collectors of consumer debts in Cook County
quickly adapted their practices to comply with Suesz after the
en banc decision. This appeal concerns FDCPA claims based
on collections suits filed before our en banc decision in Suesz.2
2 The question presented in this appeal has arisen in a number of sim-
ilar cases in the Northern District of Illinois. All of the district court deci-
sions on point other than Oliva have ruled in favor of retroactive applica-
tion of Suesz. See Oberg v. Blatt, Hasenmiller, Leibsker & Moore, LLC, No. 14
C 7369 2015 WL 9478213, at *4 (N.D. Ill. Dec. 29, 2015) (Kennelly, J.); Des-
fassiaux v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 142 F. Supp. 3d 667, 674
(N.D. Ill. 2015) (Feinerman, J.); Browne v. John C. Bonewicz, P.C., No. 14 CV
6312, 2015 WL 6165033, at *3 (N.D. Ill. Oct. 20, 2015) (Shah, J.); Rowan v.
Blatt, Hasenmiller, Leibsker & Moore, LLC, No. 14 CV 08923, 2015 WL
5920873, at *6 (N.D. Ill. Oct. 8, 2015) (Chang, J.); Conroy v. Blatt, Hasenmiller,
Leibsker & Moore, LLC, No. 14 C 6725, 2015 WL 5821642, at *4 (N.D. Ill. Oct.
1, 2015) (Hart, J.); Portalatin v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 125
F. Supp. 3d 810, 817 (N.D. Ill. 2015) (Kennelly, J.); Maldanado v. Freedman
Anselmo Lindberg, LLC, Nos. 14 C 6694 et al., 2015 WL 2330213, at *3 (N.D.
Ill. May 14, 2015) (Leinenweber, J.). Other similar cases have failed for sep-
arate reasons, though, such as the statute of limitations.

Page 8
No. 15-2516
IV. Retroactivity Under Suesz
In the en banc briefing in Suesz, the debt collector argued
that it and other debt collectors had been relying on our prec-
edent in Newsom to choose preferred venues among the dif-
ferent small claims courts within the county. It argued that if
we were to overrule Newsom, we should give that decision
only prospective effect. We rejected that argument, holding
that the new rule adopted in Suesz would apply in Suesz itself.
757 F.3d at 649–50.
The general rule, we explained, is that judicial decisions
are given retroactive effect, unlike legislation, which ordinar-
ily is not. We acknowledged that the Supreme Court has left
itself some room to give its rulings in civil cases only prospec-
tive effect “to avoid injustice or hardship to civil litigants who
have justifiably relied on prior law.” Id. at 649, quoting Har-
per v. Virginia Dep’t of Taxation, 509 U.S. 86, 110 (1993) (Ken-
nedy, J., concurring in part and concurring in the judgment),
quoting in turn American Trucking Ass’ns v. Smith, 496 U.S. 167,
199 (1990) (plurality opinion), and endorsing Chevron Oil Co.
v. Huson, 404 U.S. 97 (1971). We were not persuaded to impose
a prospective-only rule in Suesz. We noted that the Supreme
Court had reversed a state court’s decision to give a United
States Supreme Court decision only prospective effect. Suesz,
757 F.3d at 649, citing Reynoldsville Casket Co. v. Hyde, 514 U.S.
749, 753–54 (1995). We also observed that a prior decision of
one intermediate appellate court does not ordinarily produce
the degree of certainty concerning an issue of federal law that
might justify a rare prospective-only ruling. We said that a
prospective-only ruling would be “impermissible unless the
law had been so well settled before the overruling that it had

Page 9
No. 15-2516
been unquestionably prudent for the community to rely on
the previous legal understanding.” Id. at 650.
To illustrate the point, we considered a different scenario,
one in which we as a circuit court of appeals had continued to
follow Newsom but the Supreme Court had granted certiorari
in Suesz and reversed. Neither our prior decision in Newsom
nor the panel’s decision in Suesz, we said, would have justified
the Supreme Court giving its decision only prospective effect.
Id. Also, the Supreme Court’s FDCPA decisions against debt
collectors have not given any sign of applying their holdings
only prospectively. See Jerman, 559 U.S. 573; Heintz v. Jenkins,
514 U.S. 291, 294 (1995) (Act applies to lawyers collecting
debts through litigation).
The panel opinion in this case declined to apply the Suesz
holding on retroactivity. The panel wrote that Suesz “did not
specify the scope of its retroactivity,” but the panel assumed
without deciding that the Suesz retroactivity holding would
apply to the debt collector in this case. Oliva II, 825 F.3d at 790–
91. The panel in this case then considered the FDCPA safe har-
bor for good-faith mistakes under § 1692k(c), which had not
been argued in Suesz.3 We turn to that rationale next.
3 In the en banc oral argument in Suesz, the debt collector was asked
why it did not rely on § 1692k(c) to argue for prospective-only application
if Newsom were to be overruled. Counsel explained, in apparent reference
to Jerman, that the Supreme Court had previously held that the safe harbor
did not apply to good-faith mistakes of law. Since the party in a position
to argue the point had not argued it, we did not address Jerman in the en
banc opinion.

Page 10
No. 15-2516
V. Jerman and Good-Faith Mistakes of Law
The FDCPA provides a private right of action for persons
whose rights under the Act are violated. 15 U.S.C. § 1692k.
Remedies include actual damages, statutory damages up to
$1000 per violation, and attorney fees. The Act also provides
a safe harbor, a defense that bars liability “if the debt collector
shows by a preponderance of evidence that the violation was
not intentional and resulted from a bona fide error notwith-
standing the maintenance of procedures reasonably adapted
to avoid any such error.” § 1692k(c). Blatt Hasenmiller has ar-
gued, and the district court and panel agreed, that this safe
harbor protected it from liability because it relied in good
faith upon our precedent in Newsom in choosing venue for its
collection suit against Oliva.
The Supreme Court decided Jerman v. Carlisle, McNellie,
Rini, Kramer & Ulrich LPA to resolve a circuit split as to
whether the Act’s safe harbor applies to debt collectors’ good-
faith mistakes of law. 559 U.S. at 580–81. In Jerman, the debt
collector had sent a notice to the debtor saying that the debt
would be assumed to be valid unless she disputed it in writ-
ing. For purposes of the Supreme Court litigation, the Court
assumed that the debt collector had violated § 1692g by tell-
ing the debtor that she would have to dispute the validity of
the debt in writing. Id. at 580 n.3. The Supreme Court held that
§ 1692k(c) does not apply to errors of law in interpreting the
Act. The Court stated its holding as follows: “We therefore
hold that the bona fide error defense in § 1692k(c) does not
apply to a violation of the FDCPA resulting from a debt col-
lector’s incorrect interpretation of the requirements of that
statute.” Id. at 604–05.

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No. 15-2516
The panel in this case concluded that Jerman did not bar
Blatt Hasenmiller’s defense under § 1692k(c). The panel read
the Jerman holding narrowly, as applying only to the debt col-
lector’s own mistaken interpretation of the law but not to re-
liance on a precedent that was later overruled as mistaken.
Oliva II, 825 F.3d at 792. In other words, a debt collector could
rely on a court’s, or at least an appellate court’s, mistaken in-
terpretation of the Act. The panel also said that even if the dis-
tinction between a court’s interpretation and a debt collector’s
interpretation does not hold up, the debt collector’s interpre-
tation was not mistaken when it was made. Id.
With respect, we do not read Jerman so narrowly. We see
no indications that the Court intended to allow § 1692k(c) to
protect some mistakes of law about the Act but not others. The
opinion includes no indication of how courts might distin-
guish between protected and unprotected mistakes of law,
nor do we see a workable line between protected and unpro-
tected mistakes of law.
There are also clear signs in Jerman that the Court was
reaching all mistaken interpretations of the Act, regardless of
how understandable or reasonable they might have been. For
example, the Jerman dissent argued that the majority’s deci-
sion would have unworkable consequences for attorneys col-
lecting debts, requiring an attorney to resolve legal ambigui-
ties against her client “even where there is substantial legal
authority for a position favoring the client.” 559 U.S. at 597,
citing id. at 619–24 (Kennedy, J., dissenting). The Jerman ma-
jority was not persuaded to make an exception for mistakes
supported by “substantial legal authority.” Id. at 597. That
logic fits this case unless there is a manageable way to distin-

Page 12
No. 15-2516
guish between mistakes supported by “controlling” legal au-
thority and those supported by “substantial” legal authority.
We do not see one, and the panel and dissent do not offer one
for purposes of Jerman and § 1692k(c). Nor has any other cir-
cuit tried to confine Jerman as the panel did here.
Also relevant to the scope of Jerman, the Court pointed out
that Congress had included in § 1692k an additional safe har-
bor for a debt collector who seeks and follows an advisory
opinion from the Federal Trade Commission’s Bureau of Con-
sumer Protection:
No provision of this section imposing any liabil-
ity shall apply to any act done or omitted in
good faith in conformity with any advisory
opinion of the Bureau, notwithstanding that af-
ter such act or omission has occurred, such
opinion is amended, rescinded, or determined
by judicial or other authority to be invalid for
any reason.
§ 1692k(e). The Court found that the inclusion of the safe har-
bor for FTC advice was inconsistent with a broad defense for
good-faith mistakes of law:
Debt collectors would rarely need to consult the
FTC if § 1692k(c) were read to offer immunity
for good-faith reliance on advice from private
counsel. Indeed, debt collectors might have an
affirmative incentive not to seek an advisory
opinion to resolve ambiguity in the law, as re-
ceipt of such advice would prevent them from
claiming good-faith immunity for violations

Page 13
No. 15-2516
and would potentially trigger civil penalties for
knowing violations under the FTC Act.
559 U.S. at 588. That analysis is surely correct as a practical
matter. See also id. at 605–06 (Breyer, J., concurring) (empha-
sizing the safe harbor for FTC advice as solution for legal un-
Jerman recognized the issue it was deciding is important
for effective enforcement of the FDCPA. It is important be-
cause there is so much room to argue different interpretations
of the FDCPA. A broad exception for good-faith legal errors
(akin to a qualified immunity defense under 42 U.S.C. § 1983)
would allow debt collectors to resolve all legal uncertainty in
their own favor, at least as long as they consulted a lawyer.
See Jerman, 559 U.S. at 601–02. The result would be to give “a
competitive advantage to debt collectors who press the
boundaries of lawful conduct,” inviting a “race to the bottom”
driving more conservative collectors out of business and run-
ning directly contrary to the overall purpose of the Act. Id. at
As we read the Jerman opinion, the Court chose to avoid
that result by rejecting application of § 1692k(c) to any legal
errors concerning the FDCPA. In essence, the Court read the
Act as putting the risk of legal uncertainty on debt collectors,
giving them incentives to stay well within legal boundaries.
And along these lines, it is worth remembering that nothing
in Newsom or the Act required Blatt Hasenmiller to sue in the
venue it chose. Jerman and our interpretation of § 1692k(c) do

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No. 15-2516
not nullify the statutory defense but confine it to factual and
clerical errors. See Jerman, 559 U.S. at 587.4
We must still acknowledge, of course, that if any mistaken
interpretations of the Act were made in good faith, it was in
cases like this. Debt collectors in Cook County relied on circuit
precedent in believing they could choose freely among the
districts within the county in filing debt collection suits. Our
colleagues in dissent make that point with strong language.
But as we pointed out above and in Suesz, suppose the over-
ruling of Newsom had come not from this court sitting en banc
but from the Supreme Court. Such a decision would not have
needed to overrule any Supreme Court precedent, and there
is no reason to think the Supreme Court would have given
such a decision only prospective in effect. See Suesz, 757 F.3d
at 650. In that situation, the defendant would not be entitled
to a safe harbor. We see no reason to distinguish between
those two paths to overruling Newsom.
The unstated assumption of the dissent is that a judicial
decision is “the law.” With a statute, however, the controlling
law is and always has been the statute itself, as enacted by
both houses of Congress and signed by the President. One
judge or a panel of judges may or may not understand that
text correctly, but the statute remains the law even if judges
err. That is why overrulings of earlier statutory decisions, like
4 Blatt Hasenmiller has pointed out that the Jerman opinion said it was
not addressing the effect of good-faith mistakes about matters of state law.
See 559 U.S. at 580 n.4. From the reservation of that question, Blatt Hasen-
miller concludes that not all mistakes of law are excluded from the safe
harbor. For the reasons in the text, we think the reservation of the state-
law issue does not signal a willingness to draw fine lines between different
mistakes of law concerning the FDCPA itself.

Page 15
No. 15-2516
reversals by the Supreme Court, are retroactive. It is also why
it makes sense to think of the defendant’s action here as re-
flecting a mistake of law despite the reliance on admittedly
substantial precedent. Defendant was mistaken about the
meaning of the statute, and so were the panels in Newsom and
Suesz. The fact that different sets of lawyers, including those
with judicial commissions, made a legal error does not make
it less a legal error.
Nevertheless, in recognition of the equitable points the de-
fendant makes about its reliance on Newsom, it is helpful to
recall that the FDCPA provides that, in determining damages
for a violation where the safe harbor is not available, the court
“shall consider, among other relevant factors … the extent to
which such noncompliance was intentional.” 15 U.S.C.
§ 1692(b)(1).
We are aware of one area in the law where reliance on con-
trolling circuit precedent has been given special treatment: an
exception from the exclusionary rule under the Fourth
Amendment. In United States v. Leon, 468 U.S. 897 (1984), the
Supreme Court recognized an exception to the exclusionary
rule for Fourth Amendment violations that resulted from po-
lice officers’ reasonable reliance on facially valid search war-
rants. In Davis v. United States, 564 U.S. 229 (2011), the Su-
preme Court extended the Leon good-faith exception to
searches conducted in objectively reasonable reliance on
binding appellate precedent. That unusual rule in Davis is
based on the exclusionary rule’s “high cost to both the truth
and the public safety,” and the absence of offsetting benefits
resulting from deterring police misconduct when the police
are complying with circuit precedent. Id. at 232. The interest

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No. 15-2516
in protecting debt collectors’ choices of venue is not at all com-
parable to the stakes under the exclusionary rule. We see no
reason to create a similar rule under the FDCPA, especially in
the face of Jerman’s rejection of mistakes of law as grounds for
the safe harbor under 15 U.S.C. § 1692k(c).
The judgment of the district court is VACATED and the
case is REMANDED for further proceedings consistent with
this opinion.5
5 We do not address here situations in which a debt collector con-
cluded in good faith that the FDCPA required it to act in such a way that a
court later determined was prohibited.

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No. 15-2516
MANION, Circuit Judge, with whom BAUER, FLAUM, and
KANNE, Circuit Judges, join, dissenting. Today the court an-
nounces an unprecedented new rule—one that punishes debt
collectors for doing exactly what the controlling law explicitly
authorizes them to do at the time they do it. The court’s in-
verted new standard effectively eradicates the FDCPA’s bona
fide error defense. Worse still, by penalizing strict compliance
with controlling precedent, the court gravely undermines the
rule of law in this circuit and exposes law-abiding citizens to
unforeseeable and arbitrary liability in civil proceedings. I re-
spectfully dissent.
In December 2013, debt collector Blatt Hasenmiller
Leibsker & Moore, LLC, filed a collection lawsuit against
Ronald Oliva. The suit was filed at the Richard J. Daley Center
in downtown Chicago, in the first municipal district of the
Circuit Court of Cook County. Oliva resided in Orland Park,
Illinois, which is in the fifth municipal district of the Circuit
Court of Cook County.
In deciding where to file suit, Blatt relied on our then-con-
trolling precedent of Newsom v. Friedman, 76 F.3d 813 (7th Cir.
1996). In Newsom we concluded that the Circuit Court of Cook
County is a single “judicial district” for purposes of the
FDCPA’s venue provision, 15 U.S.C. § 1692i, which requires
collection suits to be filed in the “judicial district or similar
legal entity” where the contract was signed or where the
debtor resides. The Newsom court unequivocally held that,
under § 1692i(a)(2), debt collectors were allowed to file suit in
any of the Circuit Court of Cook County’s various municipal
districts so long as the debtor resided in Cook County or
signed the underlying contract there. Oliva resided in Cook

Page 18
No. 15-2516
County, so Blatt’s decision to file suit in Cook County’s first
municipal district was lawful under § 1692i as definitively in-
terpreted by Newsom. In other words, Blatt’s selection of
venue was lawful when it occurred.
No one disputes this. And who could? Newsom was the
settled law of this circuit for nearly eighteen years at the time,
and it explicitly authorized Blatt to file suit exactly where it
did. Even the court admits that “[u]nder our decision in New-
som, Blatt Hasenmiller’s choice of venue … was permissible.”
Nor is there any doubt that Newsom was valid while in effect:
as we recently recognized, Newsom was “good law in this cir-
cuit” before it was overruled. Jackson v. Blitt & Gaines, P.C., 833
F.3d 860, 865 (7th Cir. 2016).
In July 2014, while Blatt’s lawsuit was still pending, a di-
vided en banc panel of this court overruled Newsom in Suesz
v. Med–1 Solutions, LLC, 757 F.3d 636 (7th Cir. 2014). The Suesz
court held that a “judicial district or similar legal entity” un-
der § 1692i is “the smallest geographic area that is relevant for
determining venue in the court system in which the case is
filed.” Id. at 638. Under Suesz, collection lawsuits governed by
§ 1692i(a)(2) may no longer be filed in any of the six municipal
districts of the Circuit Court of Cook County, but must in-
stead be filed in the particular municipal district where the
debtor resides or where the underlying contract was signed.
The court in Suesz further held that its decision applied retro-
Although Blatt’s selection of venue complied with the
then-governing law of Newsom, it did not conform to the new
rule retroactively applied by Suesz. To comply with the new
rule, Blatt dismissed its action against Oliva shortly after
Suesz was decided. Oliva then brought an FDCPA claim

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No. 15-2516
against Blatt in federal court, alleging that Blatt was retroac-
tively liable for having filed suit in the wrong venue under
Suesz. The district court granted summary judgment for Blatt
on the ground that Blatt was protected from liability under
the FDCPA’s bona fide error defense. 15 U.S.C. § 1692k(c).
That conclusion was correct, and the district court’s judgment
should be affirmed.
The FDCPA is not a strict-liability statute. While most in-
fractions result in liability, the Act creates an important ex-
emption for violations resulting from a debt collector’s good-
faith mistake. The exemption is mandatory, not optional:
A debt collector may not be held liable in any ac-
tion brought under this subchapter if the debt
collector shows by a preponderance of evidence
that the violation was not intentional and re-
sulted from a bona fide error notwithstanding
the maintenance of procedures reasonably
adapted to avoid any such error.
15 U.S.C. § 1692k(c) (emphasis added).
Blatt easily meets each of these elements. It’s undisputed
that Blatt’s retroactively imposed violation of Suesz was unin-
tentional and that Blatt maintained reasonable procedures to
avoid any error. It’s also undisputed that the retroactive vio-
lation resulted from Blatt’s good-faith mistake: the mistake of
complying with the controlling law of Newsom rather than the
then-nonexistent rule of Suesz that would later be retroac-
tively applied. Indeed, the court concedes that if ever there
was a good-faith mistake under the FDCPA, “it was in cases
like this.” Maj. Op. at 14. Yet the court refuses to draw the only

Page 20
No. 15-2516
logical conclusion: Blatt is statutorily exempt from liability be-
cause its retroactively imposed violation of the rule an-
nounced in Suesz was the result of a bona fide error under
§ 1692k(c).
The court’s refusal to give effect to the statute is not justi-
fied by its retroactivity ruling in SueszSuesz had nothing to
do with the bona fide error defense and made no mention of
good-faith mistakes or § 1692k(c). As the original panel in this
case stated, Suesz may have created a cause of action for ret-
roactive violations, but it did not “retroactively proscribe the
application of the bona fide error defense.” Oliva v. Blatt,
Hasenmiller, Leibsker & Moore, LLC, 825 F.3d 788, 791 (7th Cir.
Nor is today’s decision supported by the Supreme Court’s
holding in Jerman v. Carlisle, 559 U.S. 573 (2010). The Jerman
Court held that “the bona fide error defense in § 1692k(c) does
not apply to a violation of the FDCPA resulting from a debt
collector’s incorrect interpretation of the requirements of that
statute.” Id. at 604–05. Blatt did not incorrectly interpret the
FDCPA’s legal requirements in failing to follow the then-non-
existent rule of Suesz. Quite the contrary. While it was still the
law, Newsom definitively determined the legal requirements
of the FDCPA’s venue provision for debt collectors filing suit
in Cook County—and Blatt followed Newsom to the letter.
Blatt therefore correctly interpreted the statute’s legal require-
ments in accordance with the controlling law in effect at the
time of its conduct.
Blatt’s interpretation was no less correct just because this
court later found that Newsom was wrongly decided. A court’s
controlling but mistaken interpretation of a statute is not the
same thing as a party’s decision to comply with the court’s

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No. 15-2516
controlling interpretation. The party may, indeed must, ad-
here to the court’s controlling interpretation even if the party
itself correctly interprets the statute and believes that the
court’s interpretation is wrong. Thus, assuming that the New-
som court mistakenly interpreted the statute, its mistaken in-
terpretation cannot be imputed to Blatt. See Oliva, 825 F.3d at
792 (noting that Blatt’s decision to follow the controlling rule
of Newsom did “not amount to an independent (and entirely
futile) ‘interpretation’ of that which Newsom had already de-
finitively interpreted and handed down as the binding law of
this Circuit”) (footnote omitted). Jerman excludes the bona
fide error defense only when the debt collector’s violation re-
sults from the “debt collector’s mistaken interpretation” of the
legal requirements of the Act. Jerman, 576 U.S. at 577 (empha-
sis added). Because Blatt did not mistakenly interpret the stat-
ute’s legal requirements merely by following the controlling
interpretation of NewsomJerman’s exclusion does not apply.
Put simply, Blatt’s decision to follow the controlling law as it
then existed was not a mistake of law, nor was its failure to
comply with a rule that did not yet exist but that would one
day emerge with retroactive effect. No subsequent change of
law––not even a retroactive one––can change that fact. It is
not a mistake of law to follow controlling law, even when that
law is later overruled.
In sum, Blatt’s retroactively imposed violation was the un-
fortunate result of its good-faith decision to comply with con-
trolling law while ignorant of a future ruling that would one
day reach back in time to declare its lawful conduct unlawful
by the legal fiction of retroactivity. In hindsight, that decision
was mistaken. But it wasn’t a mistake of law. Blatt’s failure to
foresee the retroactive change of law heralded by Suesz was a

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No. 15-2516
bona fide error entirely outside Blatt’s control. Blatt is there-
fore entitled to exemption from liability under §1692k(c).
In reaching the opposite conclusion, the court makes a
number of serious mistakes. It repeatedly misrepresents the
original panel’s decision; misinterprets both Jerman and Suesz;
disregards the legal effect of its own binding precedent; runs
afoul of the separation of powers by effectively nullifying a
lawful statutory defense legislated by Congress; and creates
an unprecedented new rule—one that punishes people for
following controlling law—that tramples the most cherished
principles of due process and strikes at the very heart of
American liberty. The most pervasive of these errors is the
misrepresentation of the original panel’s decision, so I’ll start
A. The Court Misrepresents the Panel’s Decision
The court paints a very different—and very inaccurate—
picture of the original panel’s decision. The court begins by
asserting that the panel “declined to apply the Suesz holding
on retroactivity.” Maj. Op. at 9; see also id. at 4. Not so. The
panel explicitly assumed that Suesz’s retroactivity did apply
in this case—applied it—and then concluded that the bona
fide error defense excused Blatt from liability for its retroac-
tive violation:
Although Suesz did not specify the scope of its
retroactivity, we assume without deciding that
Suesz’s holding applies retroactively to Blatt,
and that Blatt’s decision to file suit in the first
municipal district of the Circuit Court of Cook
County was a violation of § 1692i as interpreted

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No. 15-2516
by Suesz. … We [] hold that Blatt’s violation of §
1692i as interpreted by Suesz was the result of a
bona fide error that precludes liability under the
Oliva, 825 F.3d at 790–92.
The court then launches a litany of mischaracterizations
pertaining to the original panel’s interpretation of Jerman. Ac-
cording to the court, the panel concluded that Jerman does
“not extend to mistakes of law based on controlling circuit
precedent.” Maj. Op. at 4. What the original panel actually
said is that Jerman precludes the bona fide error defense based
on a debt collector’s mistake of law, but that a debt collector
does not make a mistake of law when it correctly interprets
controlling circuit precedent. See Oliva, 825 F.3d at 792 (recit-
ing the holding of Jerman verbatim and holding that Blatt’s
retroactive violation of Suesz was “not the result of Blatt’s mis-
taken interpretation of the FDCPA”; Blatt’s “interpretation
was undisputedly correct, since [Blatt] relied on Newsom to file
suit exactly where Newsom allowed”) (emphasis added).
The court further suggests that the panel read Jerman “nar-
rowly … to allow § 1692k(c) to protect some mistakes of law
about the Act but not others.” Maj. Op. at 11. But that reading
isn’t just narrow, it’s dead wrong. And the original panel
never said anything of the sort. See Oliva, 825 F.3d at 792. The
court then poses a line-drawing problem to critique the “nar-
row” reading that is of its own making: “nor do we see a
workable line between protected and unprotected mistakes of
law.” Nor do I. Though I do see a line—a bright one in fact—
between those violations that result from a debt collector’s
mistake of law, and those that do not. That’s the line drawn

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No. 15-2516
by Jerman, and it’s the line the original panel applied in this
According to the court, the panel also concluded that Jer-
man does not bar the bona fide error defense when a debt col-
lector violates the Act in reliance on “a precedent that was later
overruled as mistaken.” Maj. Op. at 11 (emphasis added). In
other words, the court continues, the panel found that the de-
fense still applies to mistakes of law so long as the debt col-
lector relies “on a court’s, or at least an appellate court’s, mis-
taken interpretation of the Act.” Id. (emphasis added). The
panel never made those sweeping statements, which are
clearly at odds with Jerman. Relying on “a” precedent or “a”
judicial decision may very well be a mistake of law—as when
the precedent or decision relied upon conflicts with the con-
trolling law in the relevant jurisdiction. That’s exactly what
happened in Jerman: the debt collector mistakenly interpreted
the controlling law of the Sixth Circuit by relying on non-con-
trolling precedent from another circuit. By contrast, correctly
interpreting the controlling law of the relevant jurisdiction is
not a mistake of law in that jurisdiction. It’s precisely the op-
posite. The panel didn’t say that there’s no mistake of law
when the debt collector relies on “an appellate court’s” con-
flicting precedent; the panel said that correctly interpreting
the controlling appellate precedent in the relevant jurisdiction
is not a mistake of law.
The court goes on to say, as if the original panel differed,
that there are “clear signs in Jerman that the Court was reach-
ing all mistaken interpretations of the Act, regardless of how
understandable or reasonable they might have been.” Maj.
Op. at 11. That rather obvious statement might be relevant if
the original panel had grossly misinterpreted Jerman to mean

Page 25
No. 15-2516
that, while good-faith mistaken interpretations aren’t pro-
tected, really good-faith mistaken interpretations are. There’s
more than a clear sign that Jerman doesn’t support so flimsy a
distinction. And the panel never said it did. The panel didn’t
say that Blatt’s mistake of law should be excused because Blatt
understandably relied on controlling law. The panel said that
because Blatt understandably relied on controlling law, there
was no mistake of law to be excused. See Oliva, 825 F.3d at 792
(“Blatt’s interpretation was not mistaken when it was
Notably, the court does not quote from the original panel’s
decision to substantiate any of these mischaracterizations.
Nor could it, because the original panel never said the things
the court says it said. Today’s reversal knocks down a straw
man. The original panel’s real decision concluded that Blatt’s
good-faith mistake was not a mistake of law because Blatt cor-
rectly interpreted (and strictly followed) controlling prece-
dent. That reasoning is not addressed in today’s opinion.
B. The Court Misinterprets Jerman
The court also misreads the Supreme Court’s holding in
Jerman. Under Jerman, the court says, Blatt “cannot avoid lia-
bility for a violation based on its reliance on circuit precedent
….” Maj. Op. at 2. But that’s not what Jerman says. Jerman says
that debt collectors cannot avoid liability based on their “mis-
taken interpretation of the legal requirements of the FDCPA.”
Jerman, 559 U.S. at 577. In Jerman, the debt collector’s reliance
on circuit precedent didn’t matter because the precedent was
from another circuit and wasn’t controlling. See Daubert v.
NRA Grp., LLC, No. 16-3613, 2017 WL 2836808, at *8 (3d Cir.
July 3, 2017) (holding that Jerman applies “[w]here an issue of
law under the FDCPA is unsettled by the Supreme Court or a

Page 26
No. 15-2516
precedential decision of the relevant court of appeals”) (emphasis
added). But what happens when the circuit precedent being
relied on is also the controlling determination of the FDCPA’s
legal requirements in the relevant jurisdiction, and the debt
collector’s interpretation of those requirements is correct?
That’s what happened here. When reliance on the law equals
compliance with the law, there is no mistake of law. Jerman
doesn’t say otherwise.
The court then notes that the Jerman Court rejected a rule
that would make an exception for mistakes of law based on a
debt collector’s good-faith reliance on “substantial legal au-
thority.” Maj. Op. at 11. From there, the court contrasts “sub-
stantial” legal authority with “controlling” legal authority,
and indicates that it doesn’t see a manageable way to distin-
guish reliance on one from reliance on the other. Id. at 11–12.
Whatever “substantial” authority means in the court’s analy-
sis, it can’t mean controlling authority, for the court contrasts
the two. And if it’s not controlling, then it’s at best persuasive.
So what the court is actually saying is that it sees no way to
differentiate controlling legal authority from persuasive legal
That’s an astonishing proposition, and certainly not one
recognized by the court in Jerman. If controlling authority—
the only definitive authority that binds with the force of law—
can’t be readily distinguished from its opposite, then the rule
of law is a sham. Here’s the difference between the two: con-
trolling authority is the governing, binding law in a given ju-
risdiction; persuasive authority is not. And here’s the upshot:
one can correctly interpret persuasive authority and still be
mistaken about the relevant controlling authority; but one
can’t be mistaken about the relevant controlling authority

Page 27
No. 15-2516
when he correctly interprets the relevant controlling author-
ity. That’s what Blatt did here.
The court also says that Jerman puts the “risk of legal un-
certainty on debt collectors.” Maj. Op. at 13. That’s true. But it
begs an important question: why is the court punishing Blatt
for doing what was certainly lawful at the time and place it did
it? It seems the court believes that Jerman’s idea of risk alloca-
tion is to arbitrarily penalize law-abiding debt collectors by
saddling them with the consequences of a risk they never as-
In essence, the court today reads Jerman as excluding the
bona fide error defense not only when the debt collector’s vi-
olation results from its mistaken legal interpretation, but also
when it does not. That’s not just an expansive reading of Jer-
man. It’s a new rule altogether.
C. The Court Misinterprets Suesz
Suesz said nothing—not one word—about the bona fide
error defense. Not in the main opinion, not in the concurrence,
not in the dissents, not even in the footnotes. It is truly re-
markable, then, that the court asserts that the question pre-
sented in this appeal—whether the bona fide error defense
applies to Blatt—was already “decided” in Suesz. Maj. Op. at
2. Suesz makes no reference to § 1692k(c) or the Supreme
1 Alternatively, if the court believes that law-abiding debt collectors
do assume the risk of being penalized for strictly following controlling law,
then what of debt collectors who choose not to follow controlling law?
Don’t they assume the same risk? After today’s decision, even strict com-
pliance with Suesz may one day result in ex post facto liability; and when
it does, the bona fide error defense won’t be there to help.

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No. 15-2516
Court’s related decision in Jerman.2 Even a broad search for
more generalized terms that might bear some remote connec-
tion to today’s issue—terms like mistakeerrorgood faithbona
fide, or unintentional—comes up dry. The Suesz court redeter-
mined the meaning of “judicial district” under § 1692i and ap-
plied its ruling retroactively. That’s all. Suesz presents no ob-
stacle to the mandatory application of the bona fide error de-
fense in today’s case.
So then why does the court insist that Suesz controls? The
confusion stems from the court’s conflation of two distinct
questions: First, does Blatt’s challenged conduct constitute a
retroactive violation? And second, does that retroactive viola-
tion result in liability? Suesz resolved only the first of these
questions: Blatt’s challenged conduct did not conform to
Suesz’s new rule, so the conduct is deemed a retroactive vio-
lation under Suesz. The court said nothing about the second
2 The court notes that the debt collector in Suesz may have chosen not
to rely on the bona fide error defense out of concern that the defense
would be barred by Jerman. Maj. Op. at 9 & n.3. Maybe so. But that’s be-
cause, unlike here, the debt collector’s conduct in Suesz wasn’t authorized
by Newsom. As the original panel noted, the debt collector in Suesz filed
suit in Marion County, Indiana, whereas the holding of Newsom was
plainly “limited to the Circuit Courts of Illinois, and did not extend to the
filing of lawsuits in other states.” Oliva, 825 F.3d at 792 n.2. See also New-
som, 76 F.3d at 818–20 (holding only that the Circuit Courts of Illinois, in-
cluding the Circuit Court of Cook County, are individual judicial districts
under § 1692i). Because the scope of Newsom’s controlling authority was
limited to lawsuits filed in Illinois, the debt collector in Suesz could have
relied on Newsom (as persuasive authority) while still mistakenly inter-
preting the legal requirements of § 1692i as applied to the courts of Marion

Page 29
No. 15-2516
question, the resolution of which depends on whether a stat-
utory exemption—such as the bona fide error defense—ap-
According to the court, however, Suesz’s retroactivity also
means that Blatt must be held liable for its retroactive viola-
tion. After answering (in the negative) the question whether
Blatt “can avoid liability” under the bona fide error defense,
the court states that it already “decided this question in Suesz
when [it] overruled [Newsom] and declined … to make that
ruling effective only prospectively.” Maj. Op. at 2.3 In the
court’s view, then, the mere fact of Blatt’s retroactive violation
under Suesz precludes the application of the bona fide error
But if the bona fide error defense applies only when there
is no violation, then what good is it? The whole point of the
defense is to excuse liability precisely when there is a viola-
tion—not when there’s no violation and no excuse is needed.
By holding that the bare fact of a violation precludes the bona
fide error defense, the court ensures that the defense will
never apply, for the defense presumes a violation, and cannot
apply without one. Thus, far from precluding the bona fide
error defense, Suesz’s retroactivity is the essential prerequisite
for the defense’s availability.
The court’s misreading of Suesz is also inconsistent with
longstanding principles of retroactivity well outside the con-
text of the FDCPA. The mere fact that a law is retroactively
3 Obviously if the ruling were only prospective there would be no
backdated violation and hence no need for the bona fide error defense in
this case.

Page 30
No. 15-2516
applied has never meant that every retroactively assessed vio-
lation is guaranteed a remedy. See, e.g., Davis v. United States,
564 U.S. 229, 243 (2011) (noting that retroactivity and remedy
are “separate, analytically distinct issue[s],” and that “the
Court has never equated its retroactivity principles with re-
medial principles”) (citations and internal marks omitted). As
the original panel explained, Suesz may create a cause of ac-
tion for retroactive violations, but it doesn’t guarantee a rem-
edy (in the form of liability for damages) by “retroactively
proscrib[ing] the application of the bona fide error defense.”
Oliva, 825 F.3d at 791.4
To hold otherwise, as the court does today, is to stretch
beyond its breaking point the judicial doctrine of retroactiv-
ity. This court has the power to make its rulings retroactive,
but it simply cannot, by a mere flick of the judicial wand, ret-
roactively alter objective realities of the past. Try as it might,
the court can’t change the historical fact that Blatt correctly
interpreted the governing law in effect at the time it filed suit.
4 Along the same lines, the bona fide error defense would still apply
in this case if the Supreme Court, rather than this court, had overruled
Newsom in Suesz. If the Court applied the new rule retroactively, it would
establish only a “potential ground for relief,” see Davis, 564 243, not
an absolute decree of liability in spite of an otherwise available statutory

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No. 15-2516
D. The Court Disregards the Effect of its Own Controlling 
The court says that Blatt “violated the venue provision of
the [FDCPA],” even though Blatt’s “choice of venue was per-
missible” under Newsom’s then-controlling interpretation of
that same provision. Maj. Op. at 2–3. In doing so, the court
draws an implicit functional distinction between two “differ-
ent” binding legal precepts: the FDCPA’s venue provision in-
terpreted by Newsom, and Newsom’s controlling interpretation
of the FDCPA’s venue provision. This distinction enables the
court to draw an odd conclusion: Blatt correctly interpreted
(and did not violate) Newsom’s controlling determination of
the legal requirements of § 1692i, but incorrectly interpreted
(and violated) § 1692i itself. As applied in this case, the dis-
tinction doesn’t hold up.
While in effect, Newsom did not propose a suggested legal
interpretation of questionable binding value—Newsom’s in-
terpretation, erroneous or not, was the controlling law in this
circuit. Blatt’s conduct was thus expressly authorized, not just
by Newsom as distinct from § 1692i, but also by § 1692i as in-
terpreted by Newsom. This brings us to a fairly obvious but
crucial point: before it was overruled, Newsom definitively de-
termined the practical legal requirements of § 1692i as it ap-
plied to lawsuits filed in the Circuit Courts of Illinois. Indeed,
the court concedes as much when it says that the “practical
effect of [Newsom] was to allow debt collectors in Cook
County to choose freely among the six different municipal
districts, at least as far as the FDCPA was concerned.” Maj. Op.
at 6 (emphasis added). Exactly. Under Newsom—and as far as
the statute itself was concerned—Blatt’s conduct was lawful
when it occurred.

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No. 15-2516
Similarly, the practical legal scope of § 1692i in this circuit
is now determined by our controlling interpretation in Suesz.
And the judicial determination of that scope is not only
proper but necessary. Section 1692i says only that the debt col-
lector must file suit in a particular judicial district. It doesn’t
define judicial district, much less determine whether a partic-
ular geographic area in the United States fits within the defi-
nition. Nowhere does the FDCPA use the controlling lan-
guage of Suesz to describe a judicial district. The statute does
not state that a “judicial district or similar legal entity” is “the
smallest geographic area relevant to venue in the court system
in which the case is filed.” Yet right now, in this circuit, § 1692i
means just that.5 Lawyers might say that the smallest-geo-
graphic-area requirement is mandated by the statute, or that
it is mandated by Suesz. Practically speaking, either statement
would be correct. While Suesz remains in effect, there is no
functional difference in this circuit between the requirements
of § 1692i by itself and the requirements of § 1692i as defini-
tively interpreted by the controlling authority of Suesz. And
the same was true under Newsom. In short, § 1692i sets forth
the law, but it doesn’t say what the law means in the Seventh
Circuit. That’s our job (and of course that of the Supreme
Court). And as we do our job, the law of this circuit is shaped
This is not to say that a statute is identical to the control-
ling decision that interprets it. There are of course important
distinctions, the most obvious of which comes into play when
the controlling precedent is overruled based on a renewed ex-
amination of its relationship to the text of the statute itself.
5 This would be the case even if Suesz was wrongly decided. A con-
trolling interpretation is no less controlling simply because it’s wrong.

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No. 15-2516
Nor do I say, as the court claims, that judicial decisions, ra-
ther than the statutes they interpret, are “the law” in some
theoretical, unqualified sense. See Maj. Op. at 14. Of course
“the statute” is “the law.” But it’s equally obvious that a stat-
ute’s controlling legal effect is determined, to a greater or
lesser extent, by the relevant controlling interpretation of the
Supreme Court and the federal courts of appeals.6 Thus, while
the statute itself remains the same, its practical legal require-
ments can vary—across space in different circuits, or across
time in the same circuit. That is precisely what happened
here, when this court replaced the old rule of Newsom with the
new rule of Suesz.
Even the estimable Judge Bork, one of history’s strongest
proponents of judicial restraint, freely acknowledged that
judges determine law in this way. Writing about the federal
judiciary, Judge Bork candidly states:
It is of course true that judges to some extent
must make law every time they decide a case,
6 That’s why we call binding appellate statutory interpretations “good
law” that “controls” the outcome of future cases in the relevant jurisdic-
tion. See Gacho v. Butler, 792 F.3d 732, 737 (7th Cir. 2015) (“Moore remains
good law and is controlling here[.]”); see also Shalala v. Schaefer, 509 U.S.
292, 300 (1993) (“Hudson remains good law as applied to remands ordered
pursuant to sentence six.”). It’s also why, when overruling a previously
controlling decision that mistakenly interpreted a statute or the constitu-
tion, we say that the prior decision is “no longer” the law—not that it
never was the law. See, e.g., Mitchell v. Helms, 530 U.S. 793, 808 (2000)
(“Meek and Wolman are anomalies in our case law. We therefore conclude
that they are no longer good law.”); Pearson v. Helman, 103 F.3d 133 (7th
Cir. 1996) (“Although Alvarez is no longer good law with respect to § 4B1.1
enhancements . . . .”); see also Jackson, 833 F.3d at 865 (Newsom was “good
law in this circuit” before it was overruled).

Page 34
No. 15-2516
but it is a minor, interstitial lawmaking. The rat-
ifiers of the Constitution put in place the walls,
roofs, and beams; judges preserve the major ar-
chitectural features, adding only filigree.”
SEDUCTION OF THE LAW,5 (1990). Of course, the judge’s power
to make law in this way is sharply limited by the separation
of powers. The court today crosses that limit by effectively re-
writing an Act of Congress and nullifying the bona fide error
defense in a case that demonstrates the epitome of a good-
faith mistake. Ironically, the court pretends not to know the
power of its own controlling precedent in Newsom, even as it
assumes a power it does not have.
Perhaps federal appellate judges don’t typically talk about
their authority to shape and develop the binding practical ef-
fect of federal statutory law in their respective circuits. But in
light of today’s extraordinary decision, there’s no way around
the topic. Besides, I’m not breaking any new ground here. I’m
just saying what everyone already knows (but what the court
won’t acknowledge): before Suesz, there was one law in this
circuit; after Suesz, another. Suesz wasn’t a declaration that
Newsom’s determination of the FDCPA’s venue provision was
void ab initio; it was the binding redetermination—right or
wrong—of that provision’s legal effect in the Seventh Circuit.
The court’s argument to the contrary is self-defeating. The
court states that the “controlling law” is strictly “the statute
itself,” as opposed to the definitive interpretation of the stat-
ute by the Supreme Court or the relevant federal court of ap-
peals. As applied to our case, this means that only the FDCPA
itself—not Suesz’s interpretation of the FDCPA—controls
with the force of law. Yet the court today also authoritatively

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No. 15-2516
concludes that Blatt violated the FDCPA as interpreted by
Suesz—a conclusion that has controlling effect only if Suesz’s
interpretation is controlling. (Only controlling law is binding,
so if the court’s decision in Suesz is not controlling law, Blatt
is not bound by the Suesz court’s interpretation, and may law-
fully rely on its own private interpretation to justify its con-
duct.) Thus, in concluding that Blatt violated controlling law
because it failed to follow the statute as interpreted by Suesz,
the court necessarily relies on the very premise it denies: that
Suesz’s interpretation controls with the force of law. By deny-
ing the controlling effect of its own legal determinations, the
court pulls the rug out from under its own feet.7
So let’s put to rest the court’s notion that Blatt somehow
correctly interpreted Newsom’s definitive determination of the
FDCPA’s venue provision (one law) while incorrectly inter-
preting the FDCPA’s venue provision itself (another law). For
purposes of determining whether Blatt correctly interpreted
controlling law, the two are treated as one and the same. As
the court notes, “as far as the FDCPA was concerned,” the
practical effect” of Newsom was to allow Blatt to file suit ex-
actly where it did. Maj. Op. at 6 (emphasis added). Law is a
7 The court’s position also leads to untenable results. If it’s true, as the
court says, that Suesz’s interpretation of the statute is correct and that only
the “statute itself” controls, then the statute would require noncompliance
with a decision from the Supreme Court if the Court overruled Suesz and
mistakenly replaced it with a conflicting rule. Opening the door to private
interpretation of the FDCPA in this way is particularly worrisome be-
cause, as the court recognizes, many interpretations are possible. See Maj.
Op. at 13 (“[T]here is so much room to argue different interpretations of
the FDCPA.”).

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No. 15-2516
practical reality. And for practical purposes, Newsom’s inter-
pretation of § 1692i was the controlling law when Blatt filed
suit. In this circuit, there was no other.
E. The Court Effectively Nullifies a Mandatory Statutory 
The court acknowledges that Blatt relied on Newsom’s con-
trolling interpretation of § 1692i in good faith. Indeed, the
court concedes that if ever a mistake was made in good faith,
“it was in cases like this.” So if the bona fide error defense
does not apply even here, where the debt collector’s mistake
was the epitome of an unintentional good-faith oversight that
was not also a mistake of law, then when does the defense
ever apply? The answer is never—or at least that it never has
to. Even if the court applies the defense in the future, under
today’s precedent, it won’t have to. Then again, under today’s
precedent, even the rule announced today is of questionable
value, and law-abiding debt collectors would do well to keep
in mind that they follow it at their own risk.
F. The Court Creates an Unprecedented New Rule 
The court suggests that to apply the bona fide error de-
fense in this case would be to create an unusual new rule that
doesn’t belong in the FDCPA. Such a rule, the court says,
would be similar to a far-removed exception to the exclusion-
ary rule under the Fourth Amendment as interpreted by the
Supreme Court in Davis v. United States, 564 U.S. 229 (2011).
Maj. Op. at 15–16. But a comparison with Davis shows just the
opposite. It is the rejection, not the application, of the bona

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No. 15-2516
fide error defense in this case that results in a most unusual
new rule.
In Davis the Court held that the police should not be sanc-
tioned (through the suppression of evidence under the exclu-
sionary rule) when they obtain evidence in objectively reason-
able reliance on binding appellate precedent. Perhaps that
rule is “unusual,” as this court now says, in the Fourth
Amendment context. But if so, it’s only because unlawfully
obtained evidence is generally supposed to be suppressed,
making the admission of such evidence an exception to the
norm. There’s nothing unusual, however, about recognizing
a similar rule here: that debt collectors should not be sanc-
tioned (through the imposition of damages) when they rely
on binding appellate precedent to collect a debt. Indeed,
could any rule be more commonplace (or more fundamental)
than the rule that a party in a civil suit should not be subjected
to liability for following controlling law? The panel didn’t cre-
ate that rule. That rule is the norm—or at least it was.8
The same cannot be said of the new rule that the court cre-
ates today. Under today’s rule, a party in a civil action may be
penalized with statutory damages for strictly adhering to con-
trolling law—even when the statute in question explicitly
provides a defense for good-faith mistakes. Davis does not
Davis is instructive on another point, too. In deciding not to apply
the exclusionary rule, the Court reasoned that to sanction the police even
though they strictly complied with then-binding appellate precedent
(which, as here, was later overruled) would be to convert the exclusionary
rule into “a strict-liability regime.” Id. at 240. Today, by punishing debt
collectors under those exact same circumstances, this court effectively con-
verts the FDCPA into a strict-liability statute.

Page 38
No. 15-2516
support that rule, nor do basic principles of due process per-
mit it. What the court today calls the “equitable points” of
Blatt’s reliance on controlling law, Maj. Op. at 15, are in fact
the most rudimentary requirements of constitutional due pro-
“A fundamental principle in our legal system is that laws
which regulate persons or entities must give fair notice of con-
duct that is forbidden or required.” F.C.C. v. Fox Television Sta-
tions, Inc., 567 U.S. 239, 253 (2012). “This requirement of clarity
in regulation is essential to the protections provided by the
Due Process Clause of the Fifth Amendment.” Id. See also
Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994) (“Elemen-
tary considerations of fairness dictate that individuals should
have an opportunity to know what the law is and to conform
their conduct accordingly[.]”). Blatt had no fair notice that its
selection of venue in Cook County would later be retroac-
tively forbidden. Blatt’s selection of venue was expressly au-
thorized under the controlling law in effect at the time, and no
reasonable debt collector in Blatt’s position could possibly
have known that it would one day be held liable ex post facto
for strictly following controlling law.
I’m not sure why the court is bent on punishing debt col-
lectors for following the law. Is the intention to put debt col-
lectors out of business? To allow debtors to refuse to pay their
debts with impunity? I can’t think of a rule better suited to
those ends than the rule the court announces today.
Today’s decision also gravely undermines the rule of law
by discouraging debt collectors from following this court’s
controlling precedent. Indeed, the court leaves open the pos-
sibility that debt collectors may even be subject to liability for

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No. 15-2516
engaging in conduct that controlling precedent not only per-
mits, but mandates. The court notes that Newsom allowed, but
did not require, Blatt to file suit where it did. Yet nowhere
does the court reassure us that Blatt would not be liable if
Newsom had ruled the other way round. Intentional or not,
here’s the message today’s ruling sends to debt collectors:
Think twice before following the controlling law of this cir-
cuit. For tomorrow we may change our mind. And you may
wish you hadn’t.
Today, in an almost surreal inversion of law and logic, the
court punishes Blatt for doing exactly what the controlling law
explicitly authorized Blatt to do at the time it did it. It does so
through a fantastical expansion of the (previously) confined
judicial doctrine of retroactivity, and in spite of a statutorily
mandated bona fide error defense. The court tries to soften
the blow by mildly suggesting that Blatt’s punishment may
be mitigated because it acted in good faith. Small comfort to
Blatt. Blatt is being punished for dutifully adhering to control-
ling law notwithstanding its legal entitlement to a statutory
defense. A mere reduction in punishment does nothing to
right that wrong.
Not long ago, this court recognized that “[t]he FDCPA
was created to prevent abusive debt-collection practices, not
to prevent law-abiding creditors from collecting on legally en-
forceable debts.” Jackson, 833 F.3d at 866 (emphasis added).
Sadly, after today’s decision, that is no longer true.
In Franz Kafka’s The Trial, Joseph K. was tried and pun-
ished for breaking a law he knew nothing about. At no point
during the proceedings, or even at the time of his punishment,

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No. 15-2516
did the court ever tell poor Joseph precisely what law he had
violated. Today this court does Kafka one better. For today
the court punishes the defendant, not for breaking a law that
was never given, but for following the very law we gave it.
That is not only inconsistent with the FDCPA’s bona fide er-
ror defense; it is inconsistent with the judicial function and the
rule of law.
I dissent.


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