Free Complaint - District Court of California - California

Case 5:08-cv-03019-JW

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Fair Debt Collection Practices Act, California Civil Code § 1788 et seq. (hereinafter "RFDCPA") which prohibit debt collectors from engaging in abusive, deceptive and unfair practices. II. JURISDICTION 2. 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. 3. This action arises out of Defendants' violations of the Fair Debt Collection

Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). III. VENUE 4. 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 Defendants transact business in this judicial district and the violations of the FDCPA and the RFDCPA complained of occurred in this judicial district. IV. INTRADISTRICT ASSIGNMENT 5. This lawsuit should be assigned to the San Jose Division of this Court because

a substantial part of the events or omissions which gave rise to this lawsuit occurred in Santa Clara County. V. PARTIES 6. Plaintiff, MARIA CONCEICAO SILVA (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). At all relevant times, Plaintiff has resided in Santa Clara County, California. 7. Defendant, PATENAUDE & FELIX, A PROFESSIONAL CORPORATION,

(hereinafter "P&F"), is a California corporation engaged in the business of collecting debts in this state with its principal place of business located at: 4545 Murphy Canyon Road, 3rd Floor, San Diego, California 92123-4363. P&F may be served as follows: Patenaude & Felix, APC, c/o Raymond Patenaude, Agent for Service of Process, 4545 Murphy Canyon Road, 3rd Floor, San -2CLASS COMPLAINT

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Diego, California 92123-4363. The principal business of P&F is the collection of debts using the mails and telephone, and P&F regularly attempts to collect debts alleged to be due another. P&F is a "debt collector" within the meaning of 15 U.S.C. § 1692a(6) and Cal. Civil Code § 1788.2©. 8. Defendant, RAYMOND ALCIDE PATENAUDE, (hereinafter

"PATENAUDE"), is a natural person and licensed attorney in the state of California. PATENAUDE may be served at his current business address at: Raymond Alcide Patenaude, Patenaude & Felix, APC, 4545 Murphy Canyon Road, 3rd Floor, San Diego, California 92123-4363. PATENAUDE is a "debt collector" within the meaning of 15 U.S.C. § 1692a(6). 9. At all times herein mentioned, each of the Defendants was an officer, director,

agent, servant, employee and/or joint venturer of his/her co-defendants, and each of them, and at all said times, each Defendant was acting in the full course and scope of said office, directorship, agency, service, employment and/or joint venture. Any reference hereafter to "Defendants" without further qualification is meant by Plaintiff to refer to each Defendant, and all of them, named above. VI. FACTUAL ALLEGATIONS 10. On a date or dates unknown to Plaintiff, Plaintiff is alleged to have incurred

a financial obligation, namely a credit card account issued by Target National Bank and bearing the account number XXXX-XXXX-XXXX-3718 (hereinafter "the debt"). The 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). 11. Sometime thereafter on a date unknown to Plaintiff, the debt was consigned,

placed, or otherwise transferred to Defendants for collection from Plaintiff. 12. Thereafter Defendants 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). 13. 14. The collection letter (Exhibit "1") is dated June 20, 2007. The collection letter (Exhibit "1") was the first written communication from

Defendants to Plaintiff in connection with the collection of the debt owed to Target National Bank. 15. The collection letter (Exhibit "1") states: -3CLASS COMPLAINT

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Unless you notify us within THIRTY (30) days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office within THIRTY (30) days from receiving this notice, this office will: obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office within THIRTY (30) days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor. 16. Plaintiff is informed and believes, and thereon alleges that PATENAUDE

created, approved and/or approved the use of collection letters in the form of Exhibit "1." 17. The collection letter (Exhibit "1") was signed by PATENAUDE. VII. DEFENDANTS' PRACTICES 18. Defendants regularly sent or caused to be sent communications in the form

of Exhibit "1" to California residents in an effort to collect consumer debts. VIII. CLASS ALLEGATIONS 19. situated. 20. Plaintiff tentatively defines the class as (I) all persons who were sent at an Plaintiff brings this action on behalf of a class of all other persons similarly

address in California, (ii) a letter from Defendants in the form of Exhibit "1," (iii) regarding a debt allegedly due Target National Bank (iv) incurred for personal, family or household purposes (v) which was not returned undelivered by the U.S. Post Office (vi) during the one year period before filing this action through the date of certification. 21. The class is so numerous that joinder of all members is impractical. On

information and belief, collection letters in the form of Exhibit "1" have been sent to hundreds of California class members. 22. There are questions of law and fact common to the classes, which questions

predominate over any questions peculiar to individual class members. The common questions include: a. b. Whether Defendants are debt collectors; Whether Defendants misrepresented Plaintiff's right to obtain a copy of the debt verification or judgment against her, in violation of 15 -4CLASS COMPLAINT

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U.S.C. §§ 1692e, 1692e(10) and Cal. Civil Code § 1788; Whether Defendants misrepresented Plaintiff's right to obtain the name and address of the original creditor, if it is different than the current creditor, in violation of 15 U.S.C. §§ 1692e, 1692e(10) and Cal. Civil Code § 1788; Whether Defendants failed to send Plaintiff a written notice containing a statement that if Plaintiff notifies Defendants in writing within the thirty-day period that the debt, or any portion thereof, is disputed, Defendants would obtain verification of the debt and that a copy of the verification would be mailed to Plaintiff, in violation of 15 U.S.C. § 1692g(a)(4) and Cal. Civil Code § 1788; and Whether Defendants failed to send Plaintiff a written notice containing a statement that upon Plaintiff's written request, Defendants would provide Plaintiff with the name and address of the original creditor, if different from the current creditor, in violation of 15 U.S.C. § 1692g(a)(5) and Cal. Civil Code § 1788. There are no individual questions of law or fact, other than whether a class

member was sent the offending collection letter, which can be determined by ministerial inspection of the Defendants' records. 24. Plaintiff will fairly and adequately represent and protect the interest of the

class members. He is committed to vigorously litigating this matter. She has retained counsel experienced in handling class claims and litigation brought pursuant to the FDCPA and RFDCPA. Neither Plaintiff nor her counsel have any interests which might cause them not to vigorously pursue this claim. Plaintiff and her counsel will vigorously pursue this matter. 25. Plaintiff's claim is typical of the claims of the class, which all arise from the

same operative facts and are based on the same legal theories. 26. A class action is a superior method for the fair and efficient adjudication of

this controversy. Most of the class members who received collection letters in the form of Exhibit -5CLASS COMPLAINT

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"1" had no knowledge that their rights are being violated by illegal collection practices. The interest of the class members in individually controlling the prosecution of separate claims against Defendants is small because the maximum damages in an individual action are $1,000. Management of this class action is likely to present significantly fewer difficulties than those presented in many other class actions. 27. Certification of the Class under Rule 23(b)(3) of the Federal Rules of Civil

Procedure is appropriate in that: a. The questions of law or fact common to the members of the Class predominate over any questions affecting only individual members; and b. A class action is superior to other available methods for the fair and efficient adjudication of the controversy. 28. Certification of a class under Rule 23(b)(2) of the Federal Rules of Civil

Procedure is also appropriate in that Defendants acted on grounds generally applicable to the Classes, thereby making appropriate declaratory relief with respect to the Class as a whole. 29. Plaintiff requests certification of a hybrid class combining the elements of

Rule 23(b)(3) for monetary damages and Rule 23(b)(2) for equitable relief. IX. CLASS CLAIMS FAIR DEBT COLLECTION PRACTICES ACT (Against All Defendants) 30. On behalf of herself and the classes she seeks to represent, Plaintiff brings this

claim for relief against Defendants under the Federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. 31. paragraphs. 32. 1692a(3). 33. Defendant, P&F, is a "debt collector" as that term is defined by the FDCPA, -6CLASS COMPLAINT

Plaintiff repeats, realleges, and incorporates by reference the foregoing

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

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15 U.S.C. § 1692a(6). 34. Defendant, PATENAUDE, is a "debt collector" as that term is defined by the

FDCPA, 15 U.S.C. § 1692a(6). 35. The financial obligation owed to Target National Bank by Plaintiff is a "debt"

as that term is defined by the FDCPA, 15 U.S.C. § 1692a(5). 36. Defendants have violated the FDCPA. The violations include, but are not

limited to, the following: a. Defendants misrepresented Plaintiff's right to obtain a copy of the debt verification or judgment against her, in violation of 15 U.S.C. §§ 1692e and 1692e(10); b. Defendants misrepresented Plaintiff's right to obtain the name and address of the original creditor, if it is different than the current creditor, in violation of 15 U.S.C. §§ 1692e and 1692e(10); c. Defendants failed to send Plaintiff a written notice containing a statement that if Plaintiff notifies Defendants in writing within the thirty-day period that the debt, or any portion thereof, is disputed, Defendants would obtain verification of the debt and that a copy of the verification would be mailed to Plaintiff, in violation of 15 U.S.C. § 1692g(a)(4); and d. Defendants failed to send Plaintiff a written notice containing a statement that upon Plaintiff's written request, Defendants would provide Plaintiff with the name and address of the original creditor, if different from the current creditor, in violation of 15 U.S.C. § 1692g(a)(5). ROSENTHAL FAIR DEBT COLLECTION PRACTICES ACT (Against Defendant, P&F) 37. On behalf of herself and the classes she seeks to represent, Plaintiff brings this

claim for relief against Defendants under the Rosenthal Fair Debt Collection Practices ("RFDCPA"), -7CLASS COMPLAINT

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California Civil Code §§ 1788-1788.33. 38. paragraphs. 39. § 1788.2(h). 40. Defendant, P&F, is a "debt collector" as that term is defined by the RFDCPA, Plaintiff is a "debtor" as that term is defined by the RFDCPA, Cal. Civil Code Plaintiff repeats, realleges, and incorporates by reference the foregoing

Cal. Civil Code § 1788.2©. 41. Defendant, PATENAUDE, is a "debt collector" as that term is defined by the

RFDCPA, Cal. Civil Code § 1788.2(c). 42. The financial obligation owed to Target National Bank by Plaintiff is a

"consumer debt" as that term is defined by the RFDCPA, Cal. Civil Code § 1788.2(f). 43. Defendants have violated the RFDCPA. The violations include, but are not

limited to, the following: a. Defendants misrepresented Plaintiff's right to obtain a copy of the debt verification or judgment against her, in violation of 15 U.S.C. §§ 1692e and 1692e(10), as incorporated by Cal. Civil Code § 1788.17; b. Defendants misrepresented Plaintiff's right to obtain the name and address of the original creditor, if it is different than the current creditor, in violation of 15 U.S.C. §§ 1692e and 1692e(10), as incorporated by Cal. Civil Code § 1788.17; c. Defendants failed to send Plaintiff a written notice containing a statement that if Plaintiff notifies Defendants in writing within the thirty-day period that the debt, or any portion thereof, is disputed, Defendants would obtain verification of the debt and that a copy of the verification would be mailed to Plaintiff, in violation of 15 U.S.C. § 1692g(a)(4), as incorporated by Cal. Civil Code § 1788.17; and d. Defendants failed to send Plaintiff a written notice containing a statement that upon Plaintiff's written request, Defendants would -8CLASS COMPLAINT

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provide Plaintiff with the name and address of the original creditor, if different from the current creditor, in violation of 15 U.S.C. § 1692g(a)(5), as incorporated by Cal. Civil Code § 1788.17. 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 Plaintiff may have under any other provision of law. X. REQUEST FOR RELIEF Plaintiff requests that this Court: a. b. c. Assume jurisdiction in this proceeding; Certify this litigation to proceed as a class action; Declare that Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692e, 1692e(10), 1692g(a)(4) and 1692g(a)(5); Declare that Defendants violated the Rosenthal Fair Debt Collection Practices Act, Cal. Civil Code § 1788.17; Award Plaintiff and the class members statutory damages in pursuant to 15 U.S.C. § 1692k(a)(2) and Cal. Civil Code § 1788.17; 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 Award Plaintiff such other and further relief as may be just and proper.

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CONSUMER LAW CENTER, INC. By: /s/ Fred W. Schwinn Fred W. Schwinn (SBN 225575) CONSUMER LAW CENTER, INC. 12 South First Street, Suite 1014 San Jose, California 95113-2418 Telephone Number: (408) 294-6100 Facsimile Number: (408) 294-6190 Email Address: [email protected] O. Randolph Bragg (IL Bar No. 6221983) Craig M. Shapiro (IL Bar No. 6284475) HORWITZ, HORWITZ & ASSOCIATES, LTD. 25 East Washington Street, Suite 900 Chicago, Illinois 60602-1716 Telephone Number: (312) 372-8822 Facsimile Number: (312) 372-1673 Email Address: [email protected] Attorneys for Plaintiff MARIA CONCEICAO SILVA

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/ Fred W. Schwinn Fred W. Schwinn, Esq.

DEMAND FOR JURY TRIAL 20 PLEASE TAKE NOTICE that Plaintiff, MARIA CONCEICAO SILVA, hereby demands 21 a trial by jury of all triable issues of fact in the above-captioned case. 22 23 24 25 26 27 28 -10CLASS COMPLAINT

/s/ Fred W. Schwinn Fred W. Schwinn, Esq.

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