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TCPA/FDCPA complaint that I'm about to send out..please critique!


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About to fire off an ITS w/ the following draft complaint attached...any comments or correctionss would be most welcome (please keep in mind that I havent proofread for spelling/grammar yet!)

UNITED STATES DISTRICT COURT

DISTRICT OF zzzzzzzz

pulpfiction JURY TRIAL DEMANDED

v. CASE NO.

Bottom feeding JDB, INC.

COMPLAINT

JURISDICTION

1. This is an action for damages brought by an individual consumer, against

Defendant, xxx., for violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §§ 227, et seq., the Fair Debt Collections Act, 15 U.S.C. §§ 1692, et seq. (“FDCPA”), and the invasions of Plaintiff’s personal privacy by the Defendant and its agents in their illegal efforts to collect a consumer debt.

2. Jurisdiction of this Court arises under 28 U.S.C. § 1331.

3. Venue is proper in this District pursuant to 28 U.S.C. §1391(B).

PARTIES

4. Plaintiff, pulpfiction, is an adult individual residing in xxx

5. Plaintiff is a consumer within the meaning of the TCPA and the FDCPA.

6. Defendant, zzz., is a Texas corporation with a principal place of business at zzz operating as a collection agency, and is a “debt collector” as the term is defined by 15 U.S.C. §§ 1692a(6).

FACTUAL ALLEGATIONS

7. At all pertinent times hereto, Defendant was collecting a debt relating to zzz.

8. The debt at issue arises out of an alleged transaction which was primarily for personal, family, or household purposes.

9. At all times material and relevant hereto, Plaintiff did not owe the debt to Defendant, and has never owed a debt to Defendant.

10. On May 9, 2010, Defendant called Plaintiff’s cellular telephone number (at 2:04 P.M.) using artificial and/or prerecorded voice technology to coerce payment of the debt, with the intent to annoy, abuse or harass Plaintiff. Defendant then continued to repeatedly call Plaintiff’s cellular telephone number on the following dates: May 14th (at 3:10 P.M.), June 3rd (at 1:28 P.M.), June 4th (at 4:33 P.M.), June 6th (at 2:32 P.M.), June 8th (at 3:34 P.M.), and June 14th (at 4:24 P.M.).

11. Defendant acted in a false, deceptive, misleading and unfair manner by repeatedly communicating with Plaintiff at inconvenient times.

12. Defendant acted in a false, deceptive, misleading and unfair manner by causing a telephone to ring with intent to annoy, abuse, or harass any person at the called number.

13. Defendant knew or should have known that their actions violated the TCPA and the FDCPA.

COUNT I-VIOLATIONS OF THE TCPA

14. Plaintiff incorporates the foregoing paragraphs as though the same were set forth

at length herein.

15. At all times relevant hereto, Defendant used, controlled and or operated “automatic telephone dialing systems” as defined by § 227(a)(1) of the TCPA.

16. Defendant initiated at least seven (7) telephone calls to Plaintiff’s telephone line using artificial and or prerecorded voices to deliver messages without the express consent of Plaintiff, in violation of 47 U.S.C. § § 227(B)(1)(A)(iii) of the TCPA.

17. The acts and or omissions of Defendant were done unfairly, unlawfully, intentionally, deceptively and fraudulently and absent bona fide error, lawful right, legal defense justification or legal excuse.

18. As a result of the above violations of the TCPA, Defendant is liable to Plaintiff in the sum of Plaintiff’s statutory damages, actual damages, and treble damages.

COUNT II-VIOLATIONS OF THE FDCPA

19. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein.

20. The Defendant caused a phone to ring repeatedly with the intent to annoy and harass, in violation of 15 U.S.C. § 1692d(5).

21. The Defendant employed false and deceptive means to collect a debt, in violation of 15 U.S.C. § 1692e(10).

22. The Plaintiff is entitled to damages as a result of Defendant’s violations.

COUNT III-INVASION OF PRIVACY –INTRUSION UPON SECLUSION

23. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at

length herein.

24. Defendant invaded the privacy of Plaintiff by unreasonably intruding upon his seclusion by calling his personal telephone and leaving messages in relation to a debt that Plaintiff did not owe to Defendant.

25. Defendant intruded, physically or otherwise, upon to solitude and or seclusion of Plaintiff in a manner which was highly offensive to Plaintiff and other reasonable persons if same should be in similar positions.

26. Defendant’s intentional intrusions, physical or otherwise, upon the solitude and or seclusion of Plaintiff were substantial and highly offense.

27. As a direct and proximate cause of the telephone calls that harassed, annoyed and abused Plaintiff, Defendant disturbed the peace and tranquility of his home, invaded Plaintiff’s privacy and intruded upon his seclusion, was a substantial factor in bringing about the serious injuries, damages and harm to Plaintiff that are outlined more fully above and, as a result, Defendant is liable to compensate Plaintiff for the full amount of actual, compensatory and punitive damages, as well as such other relief, permitted under the law.

JURY TRIAL DEMAND

28. Plaintiff demands trial by jury on all issues so triable.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that relief be granted as follows:

(a) Actual damages;

(B) Statutory damages;

© Punitive damages;

(d) Treble damages;

(e) Costs and reasonable attorney’s fees; and

(f) Such other and further relief s may be just and proper.

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I cannot critic the complaint, but I would highly recommend contacting a consumer attorney. If you have a good case, they will take it with no out of pocket expense to you.

The amount of damages you are entitled to are limited, but with "Attorney Fees" on top, the expense to the CA could double or triple making them want to settle with you quickly.

An attorney is GREAT leverage in these cases with little to no cost to you. Consider contacting one, there is a sticky on the board with recommended resources.

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If you don't go the attorney route, I would definitely check your Federal District's case law regarding the TCPA. The statute specifically says an action is to be filed in State court, and some districts have held that the congressional intent of including the words "state court" means they won't exert concurrent jurisdiction on TCPA claims. 6th circuit has at least ruled that way.

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  • 2 weeks later...

Unless you are Dlaiming more than $75,000 in damages the federal court is likely to throw it out and you will be out your filing fee and have to refile in state court. Not long ago I read an article on the TCPA where a lawyer stated that although not all appelet courts have ruled on it, every district has case law in place where remand is proper. In the Nith many of the courts are even remanding Sua Sponte.

Save the filing fee and file in State court.

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Still in negotiations (emailed ITS to in-house counsel....will file in a week if it isnt settled).

Re: jursidiction..........

I've read that state court is the way to go on TCPA issues. However, since there are also FDCPA violations mixed in, wouldn't federal court have jurisdiction anyway?

I'm fine with filing in state court...but wouldn't the CA likely move to have the case moved to federal court, as the complaint alleges violations of federal law and it is a diversity case? I'd rather not give them the option to try to intimidate me by moving anything

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I have taken the tactic to always file in state even when I woul prefer Federal. One smug lawyer called me after their very improper removal telling me how everything goes through the Federal court and I need a lawyer and I was better off dismissing, they already filed a MSJ that I would recieve shortly, blah, blah, blah. Then I asked him if he kept a copy of the Federal Rules on his desk? "No, why would I have to have that on my desk, it is in the library" he says. I told him I have a copy I keep on my desk and I think he is going to need it since you have already violated Rule 81 and Local Rule 83. Then I explained how he screwed up his removal quoting the removal statute and case law created by the judge hearing our case.

He got off the phone real quick with a lame excuse, and we had a settlement in 10 days after that. It is possible to intimidate back, especially when they remove expecting you to run and hide. They are going to expect you to fold. If you are ready to go Federal anyways, turn the tables on them when they do remove.

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I have taken the tactic to always file in state even when I woul prefer Federal. One smug lawyer called me after their very improper removal telling me how everything goes through the Federal court and I need a lawyer and I was better off dismissing, they already filed a MSJ that I would recieve shortly, blah, blah, blah. Then I asked him if he kept a copy of the Federal Rules on his desk? "No, why would I have to have that on my desk, it is in the library" he says. I told him I have a copy I keep on my desk and I think he is going to need it since you have already violated Rule 81 and Local Rule 83. Then I explained how he screwed up his removal quoting the removal statute and case law created by the judge hearing our case.

He got off the phone real quick with a lame excuse, and we had a settlement in 10 days after that. It is possible to intimidate back, especially when they remove expecting you to run and hide. They are going to expect you to fold. If you are ready to go Federal anyways, turn the tables on them when they do remove.

interesting post and interesting thread.

subscribed

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pulpfiction

let me know how that intrusion cause of action works out. i asserted it in my counterclaims although i dont think my case will be heard anytime soon. do you know what elements must be met in order to win on that cause of action? i heard, although not sure if this is true, that if you sue for intrusion upon seclusion and privacy violations you should incorporate that with 42 USC § 1983

http://www.law.cornell.edu/uscode/42/1983.html

i dont know if that helps, just something i ran into while doing my own research, i have not found a way to fully incorporate that so i left it out for now hope someone can chime in

anyway, good luck and keep us posted, rooting for you

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I'm with Kent in filing in state then seeing if they remove. Filing fee is much less in state, which, I'll be honest, is the reason.

I had a CA awhile back calling my cell using an auto dialer, so I sued in state. They removed it to federal. I then filed a motion to remand.

Once they received it, they offer to file a joint motion to remand. i tild the asshat attorney, I'd consider it but was likely to just let the judge decide. He said the judge would likely et irritated to which I responded that I wasn't the one that removed in bad faith, as the 6th circuit opined that fed courts lack jurisdicion in hearing TCPA suits.

They called back the next day offering to settle.

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  • 2 weeks later...

Pulp,

How are you getting around their Bona Fide Error Defense?

I have a collector who is using the Bona Fide Error Defense - they placed several calls to my home using automated dialer. The 1st was the message(initial contact) another I answered and said Hello there was a pause then a hang up. Another was a message that said "I did not detect a valid response" and another I answered and went through the prompts then got "I detect a valid response, goodbye" 3 weeks later 4+ calls no dunning letter - they are using bona fide error as a defense to not violating FDCPA because they have processes in place to catch such things.

Your opinion? Thanks.

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