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Case 1:13-cv-00496-LJO-MJS Document 1 Filed 04/04/13 Page 1 of 14


Amy L. Bennecoff (275805)
Kimmel & Silverman, P.C.
30 East Butler Pike
Ambler, PA 19002
Telephone: 215-540-8888
Facsimile: 215-540-8817
[email protected]
Attorney for Plaintiff





v.

Plaintiff,


PATRICIA HARRINGTON,





COLLECTIBLES MANAGEMENT
RESOURCES,

Defendant.

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA



Case No.:

COMPLAINT FOR DAMAGES
1. VIOLATION OF THE FAIR
DEBT COLLECTION PRACTICES
ACT, 15 U.S.C. §1692 ET. SEQ.;
2. VIOLATION OF THE
ROSENTHAL FAIR DEBT
COLLECTION PRACTICES ACT,
CAL. CIV. CODE §1788 ET. SEQ.
3. VIOLATION OF THE
TELEPHONE CONSUMER
PROTECTION ACT, 47 U.S.C. §227

JURY TRIAL DEMANDED

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COMPLAINT



PATRICIA HARRINGTON (“Plaintiff”), by her attorneys, KIMMEL &

SILVERMAN, P.C.,

alleges

the

following

against COLLECTIBLES

MANAGEMENT RESOURCES (“Defendant”):

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PLAINTIFF’S COMPLAINT



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Case 1:13-cv-00496-LJO-MJS Document 1 Filed 04/04/13 Page 2 of 14

INTRODUCTION

1.

Plaintiff’s Complaint is based on the Fair Debt Collection Practices

Act, 15 U.S.C. §1692 et seq. (“FDCPA”), the Rosenthal Fair Debt Collection

Practices Act, Cal. Civ. Code §1788, et. seq. (“RFDCPA”), and the Telephone

Consumer Protection Act, 47 U.S.C. §227 (“TCPA,”) which prohibits debt

collectors from engaging in abusive, deceptive, and unfair practices.



JURISDICTION AND VENUE

2.

Jurisdiction of this court arises pursuant to 15 U.S.C. § 1692k(d),

which states that such actions may be brought and heard before “any appropriate

United States district court without regard to the amount in controversy,” and 28

U.S.C. § 1331 grants this court original jurisdiction of all civil actions arising

under the laws of the United States.

3.

Defendant conducts business in the State of California and therefore,

personal jurisdiction is established.

4.

Venue is proper pursuant to 28 U.S.C. § 1391(b)(1) and (b)(2).



5.

6.

PARTIES

Plaintiff is a natural person residing in Fresno, California.

Plaintiff is a “consumer” as that term is defined by 15 U.S.C.

§1692a(3) and is a “debtor” as defined by Cal. Civ. Code §1788.2(h).

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Case 1:13-cv-00496-LJO-MJS Document 1 Filed 04/04/13 Page 3 of 14
7. Defendant is a corporation specializing in debt collection with its

principal place of business located at 2665 N Air Fresno Drive, Suite 101, Fresno,

CA 93727.

8.

Defendant is a “debt collector” as that term is defined by 15 U.S.C.

§1692a(6), and RFDCPA, Cal. Civ. Code §1788.2(c).

9.

Defendant acted through its agents, employees, officers, members,

directors, heirs, successors, assigns, principals, trustees, sureties, subrogees,

representatives, and insurers.



FACTUAL ALLEGATIONS

10. At all relevant times, Defendant was attempting to collect an alleged

consumer debt from Plaintiff as the term is defined by the FDCPA at 15 U.S.C. §

1692a(5) and the RFDCPA at Cal. Civ. Code §1788.2(f).

11. Upon information and belief, the alleged debt at issue arose out of

transactions which were primarily for personal, family, or household purposes.

12.

Beginning in February and March 2012, Defendant’s collectors

placed repeated harassing debt collection calls to Plaintiff’s home telephone.

13. Upon information and belief, Defendant also placed calls to

Plaintiff’s cellular telephone.

14. None of Defendant’s telephone calls placed to Plaintiff were for

“emergency purposes,” as specified in 47 U.S.C. §227(b)(1)(A).

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Case 1:13-cv-00496-LJO-MJS Document 1 Filed 04/04/13 Page 4 of 14
15. Over the period that Defendant was contacting Plaintiff, upon

information and belief, Defendant called Plaintiff several times on her cellular

phone using a pre-recorded, computer recorded, or automated message.

16.

Plaintiff did not consent to the placement of collection calls to her

cellular telephone by Defendant or the creditor that placed the account with

Defendant for collection.

17. Defendant’s harassing collection calls derived from numbers

including, but not limited to (559) 454-8900 and (800) 845-8457. The

undersigned has confirmed that these numbers belong to Defendant.

18. Defendant was attempting to collect an amount allegedly due to an

apartment complex when Plaintiff was a tenant at the complex.

19.

Plaintiff last lived in the subject apartment complex in 1995, she

moved out at the end of her lease, and did not owe the original creditor, Shaw

Gardens, any money at the end of her lease.

20.

In its attempts to collect the alleged debt, Defendant regularly called

Plaintiff multiple times in a single day.

21.

Plaintiff told Defendant that she refused to pay this debt.

22. However, despite Plaintiff’s refusal to pay, Defendant continued to

contact Plaintiff. It is averred that such an action by Defendant could only have

been done to harass Plaintiff.

23. When Plaintiff would pick up the phone to speak with Defendant, she

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Case 1:13-cv-00496-LJO-MJS Document 1 Filed 04/04/13 Page 5 of 14


was met with a female representative, “Ms. Hall,” that told her if she did not pay

the subject debt, legal action would be taken against her.

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4.

“Ms. Hall” also threatened to take Plaintiff’s mobile home and to file

a lien against her property.

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5. However, no such lawsuit was ever filed or any such lien was ever

placed against Plaintiff’s property.

26. As such, it is averred that Defendant never intended to take such

actions against Plaintiff, but only was done in an attempt to coerce payment from

Plaintiff.

27.

Plaintiff eventually had enough of Defendant’s harassment, and told

its collectors to leave her alone.

28. However, despite Plaintiff’s request, the calls from Defendant

continued.

29. Defendant also called and spoke with Plaintiff’s daughter, Pamela,

and told her that her mother owed a debt and that legal action would be taken

against her if she did not pay the alleged debt.

30.

Further, Defendant had also been deceptive with Plaintiff in that its

collectors often called Plaintiff without identifying themselves as debt collectors

attempting to collect a debt.

31. Additionally, Defendant never sent Plaintiff a written notice of her

right to dispute the debt and/or to demand verification thereof, within five (5) days

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Case 1:13-cv-00496-LJO-MJS Document 1 Filed 04/04/13 Page 6 of 14



1 of the first communication.
2

3

2. Defendant’s actions as described herein were made with the intent to

harass, abuse, and coerce payment from Plaintiff for the alleged debt.

COUNT I

DEFENDANT VIOLATED § 1692c(b) OF THE
FAIR DEBT COLLECTION PRACTICES ACT

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33.

Section 1692c(b) of the FDCPA states that a debt collector shall not

state that a consumer owes a debt to a third party except for reasons expressly

given under § 1692(b) without the prior consent of the consumer.

34. Defendant violated § 1692c(b) of the FDCPA when it spoke with

Plaintiff’s daughter and revealed the fact that her mother owed a debt.



COUNT II

DEFENDANT VIOLATED § 1692d OF THE
FAIR DEBT COLLECTION PRACTICES ACT

35. Section 1692d of the FDCPA prohibits debt collectors from engaging

in any conduct the natural consequence of which is to harass, oppress or abuse any

person, in connection with the collection of a debt.

36. Defendant violated § 1692d of the FDCPA when it called Plaintiff

repeatedly and continuously, when it continued to call Plaintiff even after she told

Defendant to stop calling her, when it threatened Plaintiff with a lawsuit and the

placement of a lien on her property, when it called and spoke with Plaintiff’s

daughter and revealed to her that Plaintiff owed a debt, when it was deceptive with

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conduct.

37.

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Case 1:13-cv-00496-LJO-MJS Document 1 Filed 04/04/13 Page 7 of 14


Plaintiff in that its collectors often did not identify themselves as debt collectors

seeking to collect a debt, and when it engaged in other harassing or abusive

COUNT III

DEFENDANT VIOLATED § 1692d(5) OF THE
FAIR DEBT COLLECTION PRACTICES ACT

Section 1692d(5) of the FDCPA prohibits debt collectors from

causing a telephone to ring or engaging any person in telephone conversation

repeatedly or continuously with the intent to annoy, abuse or harass any person at

the called number.

38. Defendant violated § 1692d(5) of the FDCPA when it caused

Plaintiff’s telephone to ring repeatedly and continuously with the intent to harass

or annoy Plaintiff.

COUNT IV

DEFENDANT VIOLATED § 1692d(6) OF THE
FAIR DEBT COLLECTION PRACTICES ACT

39.

Section 1692d(6) of the FDCPA prohibits debt collectors from

making the placement of telephone calls without meaningful disclosure of the

caller's identity.

40. Defendant violated section 1692d(6) of the FDCPA when its

representatives called Plaintiff in relation to the subject debt but failed to identify

themselves as debt collectors seeking to collect a debt.

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Case 1:13-cv-00496-LJO-MJS Document 1 Filed 04/04/13 Page 8 of 14



COUNT V

DEFENDANT VIOLATED § 1692e OF THE
FAIR DEBT COLLECTION PRACTICES ACT

41.

Section 1692e of the FDCPA prohibits debt collectors from using

false, deceptive or misleading representation or means in connection with the

collection of any debt.

42. Defendant violated § 1692e of the FDCPA when it was deceptive and

misleading when its collectors failed to identify themselves as debt collectors to

the Plaintiff, when it threatened to bring a lawsuit against the Plaintiff, seize her

mobile home, and file a lien against her property when it had no intention of taking

these actions, and when

it made other false, deceptive or misleading

representations.

COUNT VI

DEFENDANT VIOLATED § 1692e(2)(A) OF THE
FAIR DEBT COLLECTION PRACTICES ACT

43.

Section 1692e(2)(A) of the FDCPA prohibits debt collectors from

making the false representation of the character, amount, or legal status of any

debt.

44. Defendant violated § 1692e(2)(A) when it attempted to collect a debt

from Plaintiff that she did not owe.

DEFENDANT VIOLATED § 1692e(4) OF THE

COUNT VII

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Case 1:13-cv-00496-LJO-MJS Document 1 Filed 04/04/13 Page 9 of 14

FAIR DEBT COLLECTION PRACTICES ACT

45.

Section 1692e(4) of the FDCPA prohibits the representation or

implication that nonpayment of any debt will result in the garnishment of any

property or wages unless such action is lawful and the collector intends to take

such action.

46. Defendant violated section 1692e(4) of the FDCPA when it told

Plaintiff that it would take Plaintiff’s mobile home and file a lien against her

property, when it lacked the intention to do so.

COUNT VIII

DEFENDANT VIOLATED § 1692e(5) OF THE
FAIR DEBT COLLECTION PRACTICES ACT



47.

Section 1692e(5) FDCPA prohibits debt collectors from threatening

to take an action that cannot legally be taken or which is not intended to be taken.

48. Defendant violated § 1692e(5) of the FDCPA when it threatened to

bring a lawsuit against Plaintiff, to take her mobile home, and to file a lien against

her property when it had no intention of taking any of these actions.











COUNT IX

DEFENDANT VIOLATED § 1692e(10) OF THE
FAIR DEBT COLLECTION PRACTICES ACT

49. Section 1692e(10) of the FDCPA prohibits debt collectors from using

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Case 1:13-cv-00496-LJO-MJS Document 1 Filed 04/04/13 Page 10 of 14

1 any false representation or deceptive means to collect or attempt to collect a debt.
2

50. Defendant violated § 1692e(10) of the FDCPA when it was deceptive

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and misleading when its collectors failed to identify themselves as debt collectors

to the Plaintiff, when it threatened to bring a lawsuit against the Plaintiff, seize her

mobile home, and file a lien against her property when it had no intention of taking

these actions, and when

it made other false, deceptive or misleading

representations.



COUNT X

DEFENDANT VIOLATED § 1692f OF THE

FAIR DEBT COLLECTION PRACTICES ACT

51. Section 1692f of the FDCPA prohibits debt collectors from using

unfair or unconscionable means to collect or attempt to collect a debt.

52. Defendant violated § 1692f of the FDCPA when it called Plaintiff

repeatedly and continuously, when it continued to call Plaintiff even after she told

Defendant to stop calling her, when it threatened Plaintiff with a lawsuit and the

placement of a lien on her property, when it called and spoke with Plaintiff’s

daughter and revealed to her that Plaintiff owed a debt, when it was deceptive with

Plaintiff in that its collectors often did not identify themselves as debt collectors

seeking to collect a debt, and when it engaged in other harassing or abusive

conduct.




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Case 1:13-cv-00496-LJO-MJS Document 1 Filed 04/04/13 Page 11 of 14



COUNT XI

DEFENDANT VIOLATED § 1692g(a) OF THE
FAIR DEBT COLLECTION PRACTICES ACT

53.

Section 1692g(a) of the FDCPA states that within five days after the

initial communication with the consumer in connection with the collection of a

debt, the collector will send the consumer the name of the original creditor, as well

as a written notice stating that if the consumer notifies the collector in writing

within 30 days that he or she disputes the debt, that the collector will obtain

verification of the debt or a copy of the judgment and mail a copy to the consumer.

54. Defendant violated § 1692g(a) of the FDCPA by failing to provide

Plaintiff with written notice of her right to dispute the debt or to demand

verification thereof within five (5) days of its first communication with Plaintiff.











COUNT XII

DEFENDANT VIOLATED THE

ROSENTHAL FAIR DEBT COLLECTION PRACTICES ACT

55.

In its actions to collect a disputed debt, Defendant violated Cal. Civ.

Code §1788.17, which mandates that every debt collector collecting or attempting

to collect a consumer debt shall comply with the provisions of Sections 1692b to

1692j of the FDCPA inclusive.

COUNT XIII

DEFENDANT VIOLATED THE

TELEPHONE CONSUMER PROTECTION ACT

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Case 1:13-cv-00496-LJO-MJS Document 1 Filed 04/04/13 Page 12 of 14
56.

Section 227(b)(3)(A) of the TCPA authorizes a private cause of action

for a person or entity to bring in an appropriate court of that state “an action based

on a violation of this subsection or the regulations prescribed under this subsection

to enjoin such violation.”

57.

Section 227(b)(3)(B), of the Act authorizes a private cause of action

for a person or entity to bring in an appropriate court of that state “an action to

recover for actual monetary loss from such a violation, or to receive $500 in

damages for each such violation, whichever is greater.”

58. Despite the fact that Plaintiff never consented to Defendant making

calls to her cellular phone, upon information and belief, Defendant placed non-

emergency calls to Plaintiff’s cellular telephone without Plaintiff’s consent.

59.

The Act also authorizes the Court, in its discretion, to award up to

three (3) times the actual damages sustained for violations.

60. Here, upon information and belief, Defendant regularly placed non-

emergency, automated calls to Plaintiff’s cellular telephone, using a computer

generated, pre-recorded or artificial voice.

61. Defendant did not have Plaintiff’s express consent prior to contacting

her on her cellular telephone using an automatic telephone dialing system or pre-

recorded or artificial voice.

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Case 1:13-cv-00496-LJO-MJS Document 1 Filed 04/04/13 Page 13 of 14
62. Defendant’s conduct violated §227(b)(1)(A)(iii) of the TCPA by

making any call using any automatic telephone dialing system or an artificial

prerecorded voice to a telephone number assigned to a cellular telephone service.



WHEREFORE, Plaintiff, PATRICIA HARRINGTON, respectfully prays

for a judgment as follows:

a. All actual damages suffered pursuant to 15 U.S.C. § 1692k(a)(1);

b. Statutory damages of $1,000.00 for the violation of the FDCPA

pursuant to 15 U.S.C. § 1692k(a)(2)(A);

c. All reasonable attorneys’ fees, witness fees, court costs and other

litigation costs incurred by Plaintiff pursuant to 15 U.S.C. §

1693k(a)(3);

d. All actual damages, statutory damages, reasonable attorney’s fees

and costs, and any other litigation costs incurred by Plaintiff

pursuant to the RFDCPA at Cal. Civ. Code § 1788.17;

e. Statutory damages of $500.00 for each violation of the TCPA,
pursuant to 47 U.S.C. § 227 (c)(5)(B); and
f. Any other relief deemed appropriate by this Honorable Court.








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Case 1:13-cv-00496-LJO-MJS Document 1 Filed 04/04/13 Page 14 of 14

DEMAND FOR JURY TRIAL

PLEASE TAKE NOTICE that Plaintiff, PATRICIA HARRINGTON,

demands a jury trial in this case.



DATED: April 4, 2013






RESPECTFULLY SUBMITTED,

KIMMEL & SILVERMAN, P.C.





By: /s/ Amy L. Bennecoff
Amy L. Bennecoff (275805)
Kimmel & Silverman, P.C
30 East Butler Pike
Ambler, PA 19002
Telephone: (215) 540-8888
Facsimile (215) 540-8817
Email: [email protected]
Attorney for Plaintiff

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