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Case 8:11-cv-02269-JDW-TGW Document 1 Filed 10/06/11 Page 1 of 9 PageID 1

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

I Case No.:

RICHARD M. DAUV AL, Trustee
for the estate of Joseph Pietro,
an individual,

Plaintiff,

v.

PREFERRED COLLECTION AND
MANAGEMENT SERVICES,
INC.,
a Florida corporation,

Defendant.

______________________________

~I

COMPLAINT

I. INTRODUCTION AND PRELIMINARY STATEMENT

This is an action for damages brought by an individual consumer

for Defendant's

violations

of

the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq.

(hereinafter,

"FDCP A") and the Florida Consumer

!collections Practices Act, Fla. Stat.

§ 559.55 et seq. (hereinafter,

"FCCPA"), which prohibits debt collectors and persons,

respectively,

from engaging in abusive, deceptive, add unfair collection practices, and the

Credit Repair Organizations Act, 15 U.S.c. § 1679 et seq. (hereinafter, "CROA"), which

prohibits

credit

repair organizations

advertising and business practices.

from engagmg in certain unfair or deceptive

I

II. JURISDICTION AND VENUE

1.

Jurisdiction of this Court arises under 15 U.S.C. § 1692k(d) and 28 U.S.C.

§ 1337 for FDCPA claims, jurisdiction is founded on the existence of a federal question

pursuant

to 28 U.S.C. § 1331 for CROA claims, ~dl supplemental

jurisdiction exists for

Case 8:11-cv-02269-JDW-TGW Document 1 Filed 10/06/11 Page 2 of 9 PageID 2

the FCCPA claims pursuant

to 28 U.S.c. § 1367. Declaratory relief is available pursuant

to 28 U.S.C. §§ 2201 and 2202.

2.

Venue in this District

is proper

in that the Defendant

transacts business

here and the conduct complained of occurred here.

III. PARTIES

3.

Plaintiff, RICHARD M. DAUVAL (hereinafter, "Plaintiff"),

is the Trustee

for the bankruptcy estate of Joseph Pietro (hereinafter,

"Debtor"). The Debtor

filed a

I

Chapter 7 bankruptcy petition on March 15, 2011, case number 8:11-bk-04553-CED

(hereinafter, "Bankruptcy"). This cause of action is an unliquidated, non-exempt asset of

the Bankruptcy estate.

4.

5.

Debtor, Joseph Pietro, is a natural person residing in Polk County, Florida.

Defendant,

PREFERRED

COLLECTION

AND MANAGEMENT

SERVICES,

INC. (hereinafter, "Defendant"),

is a Florida profit corporation engaged in

the business of collecting debts in Florida with its principal place of business located at

100 North Ashley Drive #600, Tampa, Florida 336ID2. Defendant's principal purpose is

the collection of debts and Defendant regularly attempts to collect debts alleged to be due

another in Polk County, Florida.

IV. FACTUAL ALLEGATIONS

6.

At all times herein, Defendant

is a "debt

collector"

as defined by 15

U.S.c. § 1692a(6).

7.

At all times herein, Defendant

is a "debt collector" as defined by Fla. Stat.

§ 559.55.

8.

At all times herein, the Defendant attempted to collect a debt, a medical

Case 8:11-cv-02269-JDW-TGW Document 1 Filed 10/06/11 Page 3 of 9 PageID 3

bill referenced by account number "3198863" (hereinafter, "the Debt").

9.

The Debt was a consumer debt, incurred primarily for personal, household

or family use.

10.

At all

times herein, Defendant

IS a "person"

pursuant

to Fla. Stat.

§ 559.72.

11.

At all times herein, Defendant represents that it can improve a consumer's

credit record, credit history, or credit rating in return for payment of money and is thus a

"credit repair organization" as defined by 15 U.S.C. § 1679a(3)(A).

12.

At all

times herein,

the Defendant

acted itself and through its agents,

employees, officers, members, directors, successors, assigns, principals,

trustees, sureties,

subrogees, representatives, and insurers.

13.

All conditions preceding the filing of the action occurred or have been

waived by the Defendant.

14.

On or about May 18,2010, Defendant sent a collection letter to Debtor in

an attempt to collect the Debt. Please see attached a true and correct copy of the Debt

collection letter labeled Exhibit "A."

15.

Defendant's Debt collection letter contains the title "CREDIT BUREAU

NOTICE" and it asserts that Defendant can restore Debtor's credit if Debtor will "[a]ct

today by contacting [Defendant's] office .... " Defendant's collection letter further

advised Debtor "to resolve this outstanding debt and restore your credit by having us

inform the credit reporting agencies of your positive action."

I

16.

Florida Statute Section 559.77 provides for the award of up to $1,000.00

statutory damages per adverse adjudication, actual damages, and an award of attorneys'

Case 8:11-cv-02269-JDW-TGW Document 1 Filed 10/06/11 Page 4 of 9 PageID 4

fees and costs to the Plaintiff should the Plaintiff prl~ail

in this matter against Defendant.

17.

United States Code Title 15 Section

692k(a)(2)(A) provides for the

award of up to $1,000.00 statutory damages plus acial damages and an award of

attorneys'

fees to the Plaintiff should the Plaintiff pr[vail

in this matter against

Defendant.

18.

United States Code Title 15 Section i679g(a) provides for the award of

actual damages and an award of attorneys'

fees and costs to the Plaintiff should the

Plaintiff prevail in this matter against Defendant.

19.

As of the date of this complaint,

the Defendant has not initiated a law suit

in an effort to collect the Debt. Likewise, no final jldgment

regarding the Debt has been

obtained by, or transferred to, the Defendant.

I
I

V. CLAIMS FOR RELIEF

FAIR DEBT COL~~~o~~LCTICES

VIOLATION OF 15 v.s.d. §1692e(10)

ACT-

The Plaintiff re-alleges paragraphs one (L] through nineteen (19) as if fully

I

restated herein and further states as follows:

20.

The Defendant

is subject to, and has Iviolated the provisions of, 15 U.S.C.

§1692e(1 0) by using false representation and deceptive means in attempting to collect the

Debt from Debtor.

I

21.

Specifically, Defendant's Debt cOllebtion letter leads Plaintiff

to believe

that

if he makes payment on the Debt, Plaintiff's

credit

report will be restored, or

returned to its previous state.

Case 8:11-cv-02269-JDW-TGW Document 1 Filed 10/06/11 Page 5 of 9 PageID 5

22.

Plaintiff's payment of the Debt

to Defendant, however, will not restore

Plaintiff's

credit. The Defendant's

letter is false,

jiSleading,

deceptive, and knowingly

made in an attempt to trick Plaintiff into paying the Debt.

23.

As a direct and proximate result of the Defendant's actions, the Debtor has

sustained damages as defined by 15 U.S.C. § 1692k.

WHEREFORE,

the Plaintiff

requests

this Court enter a judgment

against

Defendant

for statutory damages, actual damages, costs, attorneys'

fees and such other

equitable relief this Court deems appropriate.

COUNT TWO:

CREDIT REPAIR ORGANIZATIONS ACT -

VIOLATION OF 15 U.S.c. §1679b(a)(3)

The Plaintiff

re-alleges paragraphs one (1~ through nineteen (19) as if fully

restated herein and further states as follows:

24.

Defendant

is a "credit repair organization" as defined by the CROA in that

it represents it can improve the Debtor's credit record, credit history, or credit rating in

return for payment of the Debt.

25.

The Defendant

is subject to, and has violated the provisions of, 15 U.S.C.

§1679b(a)(3) by making or using any untrue or misleading representation of the services

of the credit repair organization in attempting to collect the Debt from Debtor.

26.

Specifically, Defendant's Debt collection letter leads Plaintiff

to believe

that

if he makes payment on the Debt, Plaintiff's

credit

report will be restored, or

returned to its previous, non-derogatory state.

Case 8:11-cv-02269-JDW-TGW Document 1 Filed 10/06/11 Page 6 of 9 PageID 6

27.

Plaintiffs

payment of the Debt

to IDefendant will not restore Plaintiff's

credit. The Defendant's

letter is false, misleading,

ld

deceptively represents the services

ofthe Defendant as a credit repair organization undJ

the CROA.

28.

As a direct and proximate result ofthl Defendant's

actions, the Debtor has

sustained damages as defined by 15 D.S.C. 1679g.

WHEREFORE,

the Plaintiff

requests

this Court enter a judgment

against

Defendant

for statutory damages, actual damages, costs, attorneys'

fees and such other

equitable relief this Court deems appropriate.

COUNT THREE:

UNFAIR DEBT COLLECTION PRACTICE-

VIOLATION OF FLORIDAISTATUTE §559.72(9)

I

The Plaintiff

re-alleges paragraphs one (1~ through nineteen (19) as if fully

I

restated herein and further states as follows:

29.

The Defendant

is subject

to, and har violated the provisions of, Florida

Statute § 559.72(9) by attempting to collect

the febt

from Debtor by asserting the

existence of a legal right with the knowledge that such right does not exist.

30.

Specifically, by implying that Defendant can and will restore Debtor's

credit upon Debtor's payment of the Debt, Defendant

falsely asserted it had the right and

ability to restore Debtor's credit.

I

I

31.

Defendant does not have such a right.
I

It can only report

to the credit

bureaus that Plaintiff has paid the Debt to Defendant. Defendant does not, however, have

the ability to affect the negative history between Plaintiff and the original creditor of the

Debt, or any other negative credit reporting. Because the Defendant can only report

positively on Plaintiff s credit report with respect to its own relationship with Plaintiff,

I

its

Case 8:11-cv-02269-JDW-TGW Document 1 Filed 10/06/11 Page 7 of 9 PageID 7

assertion that

it has

the right

to restore Plaintiff s credit

IS false, deceptive

and

misleading.

32.

Defendant's

assertions, made in aD!attempt

to collect

the Debt, are a

knowingly

false statement

attempting

to limit Debtor's

consumer

rights under

the

FCCPA.

33.

As a direct and proximate result of the Defendant's

actions, the Debtor has

sustained damages as defined by Florida Statute §55f.77.

WHEREFORE,

the Plaintiff

requests

this Court enter a judgment

against

Defendant

for statutory damages, actual damages, costs, attorneys'

fees and such other

equitable relief this Court deems appropriate.

DECLARATORY AND INJUNCTIVE RELIEF

.

COUNT FOUR:
I

The Plaintiff

re-alleges paragraphs

one (1) through nineteen (19) as if fully

restated herein and further state as follows:

34.

Unless the Defendant

is immediately enjoined from continuing to falsely

represent

to Plaintiff

that Defendant can restore Plaintiff" s credit, Plaintiff will suffer

irreparable injury.

Plaintiff has no adequate remedy at law.

Plaintiff has a clear legal right to the protections of the PDCP A, PCCP A

35.

36.

and the CROA.

37.

The requested injunction is reasonably necessary to protect the legal rights

of Plaintiff and will have no adverse effect on the public welfare.

WHEREFORE, Plaintiff respectfully prays that judgment be entered against

the

Defendant for the following:

Case 8:11-cv-02269-JDW-TGW Document 1 Filed 10/06/11 Page 8 of 9 PageID 8

A.

B.

C.

D.

E.

F.

G.

H.

I.

Declaratory judgment

that Defendant's conduct violated the FDCP A;

Declaratory judgment

that Defendant's conduct violated the FCCP A;

Declaratory judgment

that Defendant's conduct violated the CROA;

Injunctive relief under the FCCP A;

Injunctive relief under the CROA;

Actual damages;

Statutory damages against Defendant pursuant

to 15 U.S.C. § 1692k;

Statutory damages against Defendant pursuant

to Fla. Stat. § 559.77;

Judgment against Defendant

for any damages the Court deems appropriate

pursuant

to the CROA;

J.

Costs and reasonable

attorneys'

fees against Defendant pursuant

to 15

u.S.c.

§ 1692(k), 15 U.S.C § 1679g, and Fla. Stat. § 559.77; and

K.

For such other and further relief as may be just and proper.

DEMAND FOR JURY TRIAL

38.

Please take notice that Plaintiff demands trial by jury in this action.

Respectfully Submitted,
LEA VENGOOD & NASH

D Ian R. Leavengood, Esq.
LEAD TRIAL COUN~L~

_

D Christopher C. Nash, Esq., FBN 135046
ilC'HeatherM. Fleming, Esq. FBN 25971
2958 First Avenue North
St. Petersburg, FL 33713
Phone:
Fax: (727) 327-3305
[email protected]
[email protected]
[email protected]

(727) 327-3328

Case 8:11-cv-02269-JDW-TGW Document 1 Filed 10/06/11 Page 9 of 9 PageID 9

Attorneys for Plaintiff