Free Complaint - District Court of California - California

Case 3:08-cv-00907-JCS

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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. Declaratory relief is available pursuant to 28 U.S.C. §§ 2201 and 2202. 4. This action arises out of Defendants' 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 Defendants transact 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 Francisco Division of this Court

because a substantial part of the events or omissions which gave rise to this lawsuit occurred in San Francisco County. -2COMPLAINT

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V. PARTIES Plaintiff, SHAWN O'CONNOR (hereinafter "Plaintiff" or "O'CONNOR"),

is a natural person residing in San Francisco County, California. Plaintiff is a "consumer" within the meaning of 15 U.S.C. § 1692a(3). 8. Plaintiff is informed and believes, and thereon alleges that Defendant, LAW

OFFICES OF HARRIS & ZIDE (hereinafter "HARRIS & ZIDE"), is or was at all relevant times, a general partnership engaged in the business of collecting debts in this state with its principal place of business located at: 1445 Huntington Drive, Suite 300, South Pasadena, Los Angeles County, California 91030-4553. HARRIS & ZIDE may be served as follows: Law Offices of Harris & Zide, c/o Flint Corey Zide, General Partner, 1445 Huntington Drive, Suite 300, South Pasadena, Los Angeles County, California 91030-4553. The principal business of HARRIS & ZIDE is the collection of debts using the mails and telephone, and HARRIS & ZIDE regularly attempts to collect debts alleged to be due another. HARRIS & ZIDE is a "debt collector" within the meaning of 15 U.S.C. § 1692a(6). 9. Defendant, FLINT COREY ZIDE (hereinafter "ZIDE"), is a natural person,

a licensed attorney in the state of California, and is or was an employee, agent, and/or general partner of HARRIS & ZIDE at all relevant times. ZIDE may be served at his current business address at: Flint Corey Zide, Law Offices of Harris & Zide, 1445 Huntington Drive, Suite 300, South Pasadena, Los Angeles County, California 91030-4553. ZIDE is a "debt collector" within the meaning of 15 U.S.C. § 1692a(6). Plaintiff is informed and believes, and thereon alleges that ZIDE is liable for the acts of HARRIS & ZIDE because he is a general partner of HARRIS & ZIDE, he sets and approves HARRIS & ZIDE collection policies, practices, procedures, and he directed the unlawful activities described herein. 10. At all times herein mentioned, each of the Defendants was an officer, director,

agent, servant, employee and/or joint venturer of his 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. -3COMPLAINT

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VI. FACTUAL ALLEGATIONS On a date or dates unknown to Plaintiff, Plaintiff incurred a financial

obligation, namely a consumer credit account issued by Citibank (South Dakota), N.A. (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). 12. Sometime thereafter on a date unknown to Plaintiff, the debt was consigned,

placed or otherwise transferred to Defendants for collection from Plaintiff. 13. Thereafter, Defendants filed a lawsuit against O'CONNOR to collect the debt.

Said lawsuit was filed in the Superior Court of the State of California, County of Santa Clara and assigned Case No. 1-05-CV-038648 (hereinafter "the collection lawsuit"). 14. Thereafter, O'CONNOR retained the legal services of Fred W. Schwinn of

the Consumer Law Center, Inc., to represent him in the collection lawsuit. 15. Thereafter, on or about July 8, 2005, Fred W. Schwinn notified ZIDE and his

law partners that O'CONNOR was represented by Mr. Schwinn in connection with the debt owed to Citibank (South Dakota), N.A. 16. Thereafter, on or about March 20, 2006, the Honorable Gregory H. Ward

presided over a bench trial wherein O'CONNOR was found to owe Citibank (South Dakota), N.A., the sum of $7,264.97 in principal, plus costs. 17. A true and accurate copy of the Judgment and Order for Entry After Trial by

Court is attached hereto, marked Exhibit "1," and by this reference is incorporated herein. 18. On or about March 23, 2006, Defendant ZIDE, filed a Memorandum of Costs

in the state court proceeding which stated the costs in the collection lawsuit to be $460.25. 19. A true and accurate copy of the Memorandum of Costs is attached hereto,

marked Exhibit "2," and by this reference is incorporated herein. 20. Accordingly, the total judgment against Plaintiff in favor of Citibank (South

Dakota), N.A., is $7,725.22, plus post-judgment interest at the rate of 10% per annum pursuant to Cal. Code of Civil Procedure § 685.010. 21. Thereafter, Defendants sent a collection letter dated June 8, 2007 (Exhibit -4COMPLAINT

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"3") directly 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). 22. A true and accurate copy of the collection letter dated June 8, 2007, from

Defendants to Plaintiff is attached hereto, marked Exhibit "3," and by this reference is incorporated herein. 23. The collection letter dated June 8, 2007 (Exhibit "3") states that Plaintiff owed

"$10,774.48 including costs, interest and attorney fees." 24. Plaintiff is informed and believes, and thereon alleges that Defendants

misrepresented the character, amount or legal status of the debt in the collection letter dated June 8, 2007 (Exhibit "3"). 25. Plaintiff is informed and believes, and thereon alleges that Defendants

attempted to collect interest, fees or other charges from Plaintiff that were not expressly authorized by the judgment creating the debt or otherwise permitted by law in the collection letter dated June 8, 2007 (Exhibit "3"). 26. The collection letter dated June 8, 2007 (Exhibit "3") displays a signature

believed to be that of Defendant, ZIDE. 27. The collection letter dated June 8, 2007 (Exhibit "3") represented or implied

that Plaintiff's account had been reviewed by Defendant, ZIDE, before the collection letter (Exhibit "3") was sent to Plaintiff. 28. Plaintiff is informed and believes, and thereon alleges that Defendant, ZIDE,

did not conduct a professional review Plaintiff's account before sending the collection letter dated June 8, 2007 (Exhibit "3") to Plaintiff. See Clomon v. Jackson, 988 F.2d 1314 (2nd Cir. 1993) and Avila v. Rubin, 84 F.3d 222, 228-29 (7th Cir. 1996). 29. Plaintiff is informed and believes, and thereon alleges that the collection letter

dated June 8, 2007 (Exhibit "3") misrepresented the role and involvement of legal counsel. 30. Thereafter, Defendants sent a collection letter dated July 10, 2007 (Exhibit

"4") directly 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). -5COMPLAINT

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31.

A true and accurate copy of the collection letter dated July 10, 2007, from

Defendants to Plaintiff is attached hereto, marked Exhibit "4," and by this reference is incorporated herein. 32. owed "$10,774.48." 33. Plaintiff is informed and believes, and thereon alleges that Defendants The collection letter dated July 10, 2007 (Exhibit "4") states that Plaintiff

misrepresented the character, amount or legal status of the debt in the collection letter dated July 10, 2007 (Exhibit "4"). 34. Plaintiff is informed and believes, and thereon alleges that Defendants

attempted to collect interest, fees or other charges from Plaintiff that were not expressly authorized by the judgment creating the debt or otherwise permitted by law in the collection letter dated July 10, 2007 (Exhibit "4"). 35. The collection letter dated July 10, 2007 (Exhibit "4") displays a signature

believed to be that of Defendant, ZIDE. 36. The collection letter dated July 10, 2007 (Exhibit "4") represented or implied

that Plaintiff's account had been reviewed by Defendant, ZIDE, before the collection letter (Exhibit "4") was sent to Plaintiff. 37. Plaintiff is informed and believes, and thereon alleges that Defendant, ZIDE,

did not conduct a professional review Plaintiff's account before sending the collection letter dated July 10, 2007 (Exhibit "4") to Plaintiff. See Clomon v. Jackson, 988 F.2d 1314 (2nd Cir. 1993) and Avila v. Rubin, 84 F.3d 222, 228-29 (7th Cir. 1996). 38. Plaintiff is informed and believes, and thereon alleges that the collection letter

dated July 10, 2007 (Exhibit "4") misrepresented the role and involvement of legal counsel. VII. CLAIMS FAIR DEBT COLLECTION PRACTICES ACT 39. Plaintiff brings the first claim for relief against Defendants under the Federal

Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. 40. Plaintiff repeats, realleges, and incorporates by reference paragraphs 1 -6COMPLAINT

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through 38 above. 41. 1692a(3). 42. Defendant, HARRIS & ZIDE, is a "debt collector" as that term is defined by Plaintiff is a "consumer" as that term is defined by the FDCPA, 15 U.S.C. §

the FDCPA, 15 U.S.C. § 1692a(6). 43. 15 U.S.C. § 1692a(6). 44. The financial obligation owed to Citibank (South Dakota), N.A., by Plaintiff Defendant, ZIDE, is a "debt collector" as that term is defined by the FDCPA,

is a "debt" as that term is defined by the FDCPA, 15 U.S.C. § 1692a(5). 45. Defendants' collection letters described above violate the FDCPA. The

violations include, but are not limited to, the following: a. Defendants misrepresented the character, amount or legal status of the debt, in violation of 15 U.S.C. § 1692e(2)(A); b. Defendants misrepresented the compensation which may be lawfully received by Defendants for the collection of the debt, in violation of 15 U.S.C. § 1692e(2)(B); c. Defendants falsely represented or implied that an attorney ZIDE had reviewed Plaintiff's account when attorney ZIDE had not done so, in violation of 15 U.S.C. §§ 1692e(3) and 1692e(10); d. Defendants falsely represented the role and evolvement of legal counsel, in violation of 15 U.S.C. §§ 1692e(3) and 1692e(10); and e. Defendants attempted to collect interest, fees or other charges from Plaintiff that are not expressly authorized by the judgment creating the debt or otherwise permitted by law, in violation of 15 U.S.C. § 1692f(1). 46. Defendants have further violated the FDCPA in the following respects: a. Defendants continued to communicate directly with Plaintiff regarding the collection of the debt after they knew that Plaintiff was -7COMPLAINT

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represented by an attorney with respect to the debt, in violation of 15 U.S.C. § 1692c(a)(2). Defendants' acts as described above were done intentionally with the purpose

of coercing Plaintiff to pay the debt. 48. As a result of Defendants' 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. VIII. REQUEST FOR RELIEF Plaintiff requests that this Court: a. b. Assume jurisdiction in this proceeding; Declare that Defendants' collection letters attached hereto as Exhibits "3" and "4" violate the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692e(2)(A), 1692e(2)(B), 1692e(3), 1692e(10) and 1692f(1); Declare that Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692c(a)(2); Award the Plaintiff statutory damages in an amount not exceeding $1,000 pursuant to 15 U.S.C. § 1692k(a)(2)(A); Award the Plaintiff the costs of this action and reasonable attorneys fees pursuant to 15 U.S.C. § 1692k(a)(3); and Award the Plaintiff such other and further relief as may be just and proper.

CONSUMER LAW CENTER, INC. By: /s/ Fred W. Schwinn Fred W. Schwinn, Esq. Attorney for Plaintiff SHAWN O'CONNOR

-8COMPLAINT

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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 PLEASE TAKE NOTICE that Plaintiff, SHAWN O'CONNOR, hereby demands a trial by jury of all triable issues of fact in the above-captioned case. /s/ Fred W. Schwinn Fred W. Schwinn, Esq.

-9COMPLAINT

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