Free Complaint - District Court of California - California

Case 5:08-cv-02830-JW

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contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy. Existing laws and procedures for redressing these injuries are inadequate to protect consumers. Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts. Abusive debt collection practices are carried on to a substantial extent in interstate commerce and through means and instrumentalities of such commerce. Even where abusive debt collection practices are purely intrastate in character, they nevertheless directly affect interstate commerce. It is the purpose of this title to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses. II. JURISDICTION 3. Jurisdiction of this Court arises under 15 U.S.C. § 1692k(d), 28 U.S.C. §

1337, and supplemental jurisdiction exists for the state law claims pursuant to 28 U.S.C. § 1367. Declaratory relief is available pursuant to 28 U.S.C. §§ 2201 and 2202. 4. This action arises out of Defendant's violations of the Fair Debt Collection

Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). III. VENUE 5. Venue in this judicial district is proper pursuant to 28 U.S.C. § 1391(b), in

that a substantial part of the events or omissions giving rise to the claim occurred in this judicial district. Venue is also proper in this judicial district pursuant to 15 U.S.C. § 1692k(d), in that the Defendant transacts business in this judicial district and the violations of the FDCPA complained of occurred in this judicial district. IV. INTRADISTRICT ASSIGNMENT 6. This lawsuit should be assigned to the San Jose Division of this Court because -2COMPLAINT

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a substantial part of the events or omissions which gave rise to this lawsuit occurred in Santa Clara County. V. PARTIES 7. Plaintiff, GRAHAM TOEWS (hereinafter "Plaintiff"), is a natural person

residing in Santa Clara County, California. Plaintiff is a "consumer" within the meaning of 15 U.S.C. § 1692a(3) and a "debtor" within the meaning of Cal. Civil Code § 1788.2(h). 8. Defendant, CENTRAL PORTFOLIO CONTROL, INC., (hereinafter

"CENTRAL"), is a Minnesota corporation engaged in the business of collecting debts in this state with its principal place of business located at: 16526 West 78th Street, Suite 107, Eden Prairie, Minnesota 55346. CENTRAL may be served at the address of its Registered Agent: Central Portfolio Control, Inc., c/o Robert P. Reiter, 2205 Spruce Trail, Golden Valley, Minnesota 554223603. The principal purpose of CENTRAL is the collection of debts using the mails and telephone, and CENTRAL regularly attempts to collect debts alleged to be due another. CENTRAL is a "debt collector" within the meaning of 15 U.S.C. § 1692a(6) and Cal. Civil Code § 1788.2(c). VI. FACTUAL ALLEGATIONS 9. On a date or dates unknown to Plaintiff, Plaintiff is alleged to have incurred

a financial obligation, namely a Providian credit card bearing account number XXXX-XXXXXXXX-0768 (hereinafter "the alleged debt"). The alleged debt was incurred primarily for personal, family or household purposes and is therefore a "debt" as that term is defined by 15 U.S.C. § 1692a(5) and a "consumer debt" as that term is defined by Cal. Civil Code § 1788.2(f). 10. Sometime thereafter on a date unknown to Plaintiff, the alleged debt was

consigned, placed or otherwise transferred to Defendant for collection from Plaintiff. 11. Thereafter, Defendant sent a collection letter (Exhibit "1") to Plaintiff which

is a "communication" in an attempt to collect a debt as that term is defined by 15 U.S.C. § 1692a(2). 12. A true and accurate copy of the collection letter from Defendant to Plaintiff

is attached hereto, marked Exhibit "1," and by this reference is incorporated herein. 13. 14. The collection letter (Exhibit "1") is dated August 15, 2007. The collection letter (Exhibit "1") was Defendant's first written notice -3COMPLAINT

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initially addressed to the Plaintiff in connection with collecting the alleged debt. 15. On or about August 16, 2007, an employee of Defendant recorded the

following message on Plaintiff's answering machine: Hi this is an important message for Graham Toews. This not a sales or marketing phone call. This message is regarding an important business matter. Please return our call to 1-800-280-1565. Again, our toll-free direct line is 1-800-280-1565. Thank you. 16. On or about August 18, 2007, an employee of Defendant recorded the

following message on Plaintiff's answering machine: Hi, Graham, this is Illy with CPC. Uh, I do need a return call right away. My number is 1-800-871-8299. That's 1-800-871-8299. Thanks. 17. Defendant's answering machine messages were each a "communication" in

an attempt to collect a debt as that term is defined by 15 U.S.C. § 1692a(2). 18. Defendant's employees failed to disclose Defendant's identity and the nature

of Defendant's business in each of the answering machine messages, in violation of 15 U.S.C. § 1692d(6) and Cal. Civil Code § 1788.11(b). See Hosseinzadeh v. M.R.S. Associates, Inc., 387 F. Supp. 2d 1104, 1112 & 1118 (C.D. CA 2005). 19. Defendant's employees failed to disclose that each of the answering machine

messages was a communication from a debt collector, in violation of 15 U.S.C. § 1692e(11). See Hosseinzadeh v. M.R.S. Associates, Inc., 387 F. Supp. 2d 1104, 1116 (C.D. CA 2005); Foti v. NCO Financial Systems, Inc., 424 F. Supp. 2d 643, 669 (S.D.N.Y. 2006). VII. CLAIMS FAIR DEBT COLLECTION PRACTICES ACT 20. Plaintiff brings the first claim for relief against Defendant under the Federal

Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. 21. Plaintiff repeats, realleges, and incorporates by reference all preceding

paragraphs as though fully set forth herein. 22. 1692a(3). -4COMPLAINT

Plaintiff is a "consumer" as that term is defined by the FDCPA, 15 U.S.C. §

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23.

Defendant, CENTRAL, is a "debt collector" as that term is defined by the

FDCPA, 15 U.S.C. § 1692a(6). 24. The financial obligation alleged to be owed by Plaintiff is a "debt" as that

term is defined by the FDCPA, 15 U.S.C. § 1692a(5). 25. Defendant's answering machine messages described above violate the

FDCPA. The violations include, but are not limited to, the following: a. Defendant failed to disclose Defendant's identity and the nature of Defendant's business, in violation of 15 U.S.C. § 1692d(6); b. Defendant failed to disclose that the communications were from a debt collector, in violation of 15 U.S.C. § 1692e(11). 26. Defendant's acts as described above were done intentionally with the purpose

of coercing Plaintiff to pay the alleged debt. 27. As a result of Defendant's violations of the FDCPA, Plaintiff is entitled to an

award of statutory damages, costs and reasonable attorneys fees, pursuant to 15 U.S.C. § 1692k. ROSENTHAL FAIR DEBT COLLECTION PRACTICES ACT 28. Plaintiff brings the second claim for relief against Defendant under the

Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), California Civil Code §§ 1788-1788.33. 29. Plaintiff repeats, realleges, and incorporates by reference all preceding

paragraphs as though fully set forth herein. 30. Plaintiff is a "debtor" as that term is defined by the RFDCPA, Cal. Civil Code

31.

Defendant, CENTRAL, is a "debt collector" as that term is defined by the

RFDCPA, Cal. Civil Code § 1788.2(c). 32. The financial obligation alleged to be owed by Plaintiff is a "consumer debt"

as that term is defined by the RFDCPA, Cal. Civil Code § 1788.2(f). 33. Defendant's answering machine messages described above violate the

RFDCPA. The violations include, but are not limited to, the following: a. Defendant failed to disclose Defendant's identity and the nature of -5COMPLAINT

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Defendant's business, in violation of 15 U.S.C. § 1692d(6), as incorporated by Cal. Civil Code § 1788.17 and Cal. Civil Code § 1788.11(b); Defendant failed to disclose that the communications were from a debt collector, in violation of 15 U.S.C. § 1692e(11), as incorporated by Cal. Civil Code § 1788.17. Defendant's acts as described above were done willfully and knowingly with

the purpose of coercing Plaintiff to pay the alleged debt, within the meaning of Cal. Civil Code § 1788.30(b). 35. As a result of Defendant's willful and knowing violations of the RFDCPA,

Plaintiff is entitled to an award of a statutory penalty in an amount not less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000), pursuant to Cal. Civil Code § 1788.30(b). 36. As a result of Defendant's violations of the RFDCPA, Plaintiff is entitled to

an award of statutory damages pursuant to 15 U.S.C. § 1692k(a)(2)(A), as incorporated by Cal. Civil Code § 1788.17. 37. As a result of Defendant's violations of the RFDCPA, Plaintiff is entitled to

an award of his reasonable attorney's fees and costs pursuant to Cal. Civil Code § 1788.30(c) and 15 U.S.C. § 1692k(a)(3), as incorporated by Cal. Civil Code § 1788.17. 38. Pursuant to Cal. Civil Code § 1788.32, the remedies provided under the

RFDCPA are intended to be cumulative and in addition to any other procedures, rights or remedies that the Plaintiff may have under any other provision of law. VIII. REQUEST FOR RELIEF Plaintiff requests that this Court: a. b. Assume jurisdiction in this proceeding; Declare that Defendant's answering machine messages violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692d(6) and 1692e(11); Declare that Defendant's answering machine messages violated the Rosenthal Fair Debt Collection Practices Act, Cal. Civil Code §§ 1788.11(b) and 1788.17; -6COMPLAINT

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d.

Award Plaintiff statutory damages in an amount not exceeding $1,000 pursuant to 15 U.S.C. § 1692k(a)(2)(A);

e.

Award Plaintiff a statutory penalty in an amount not less than $100 nor greater than $1,000 pursuant to Cal. Civil Code § 1788.30(b);

f.

Award Plaintiff statutory damages in an amount not exceeding $1,000 pursuant to 15 U.S.C. § 1692k(a)(2)(A), as incorporated by Cal. Civil Code §1788.17;

g.

Award Plaintiff the costs of this action and reasonable attorneys fees pursuant to 15 U.S.C. § 1692k(a)(3) and Cal. Civil Code §§ 1788.17 and 1788.30(c); and

h.

Award Plaintiff such other and further relief as may be just and proper.

CONSUMER LAW CENTER, INC. By: /s/ Jovanna R. Longo Jovanna R. Longo, Esq. Attorney for Plaintiff GRAHAM TOEWS

CERTIFICATION PURSUANT TO CIVIL L.R. 3-16 Pursuant to Civil L.R. 3-16, the undersigned certifies that as of this date, other than the named parties, there is no such interest to report. /s/ Jovanna R. Longo Jovanna R. Longo, Esq.

DEMAND FOR JURY TRIAL PLEASE TAKE NOTICE that Plaintiff, GRAHAM TOEWS, hereby demands a trial by jury of all triable issues of fact in the above-captioned case. /s/ Jovanna R. Longo Jovanna R. Longo, Esq.

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