March 3, 2012

Lawsuit Against LVNV and Northland Group By Alabama Consumer

You got sued by a debt buyer -- you won. But the debt buyer keeps collecting. Either give up and accept it or fight back.

We suggest fighting back is normally the best option.

This is what our client did when she was sued by the debt buyer/debt collector LVNV and she won her case. But then LVNV hired the rather famous debt collector Northland Group to continue to collect against her.

She could have given up.

Or she could have begged these debt collectors to follow the law -- but then again the judge had already ruled our client didn't owe the debt so I'm not sure what good telling LVNV and Northland Group would have done.

So she could give up or fight back.

She chose to fight back and ask a jury to decide about what LVNV and Northland Group have done after losing the collection case against her.

You can read about the lawsuit she filed against LVNV and Northland Group here.

If you have experienced similar conduct by LVNV or Northland Group and you live in Alabama, we would like to hear from you. You can call us at 205-879-2447.

February 29, 2012

Alabama Consumer Sues IC System For False Credit Reporting

You can read about a recent lawsuit that our Alabama consumer filed against the famous debt collection firm IC System out of Minnesota. The allegations include that IC System committed false credit reporting.

The moral of this story is to be careful if you are dealing with a collection agency and to check your credit reports to make sure there is no false information from the collection agency.

February 24, 2012

Lawsuit Against LVNV and Budzik Law Firm For FDCPA Violations By Alabama Consumer

Alabama consumers are filing lawsuits against the well known debt buyer and debt collector LVNV Funding for violating the Fair Debt Collection Practices Act (FDCPA). You can read about a recent suit against LVNV and a collection lawfirm called Budzik & Dynia, LLC (out of Chicago) that an Alabama resident filed.

Remember when a debt buyer sues you in Alabama, it must prove that you owe the debt and that the debt buyer now owns the debt. From what we see, normally debt buyers will not and cannot do this in Alabama.

When a debt buyer loses a case against you in Alabama, it must cease all collection activities, but often these debt buyers will not cease collecting the debt -- instead they keep trying to illegally collect it.

You can find a listing of some lawsuits against LVNV for this type of mis-conduct.

If you live in Alabama and have had a similar experience with LVNV or any other debt collector or debt buyer, please feel free to contact us for a free analysis of your rights and options, including suing the debt buyer. You can call us at 205-879-2447 and we'll be glad to chat with you.

February 19, 2012

Can You Sue Chase Credit Card Company For Auto Dialed Calls?

Yes -- here is an example of Alabama consumers who sued Chase for auto dialed (computer or robo dialed calls) to their cell phones without permission.

If you never gave the creditor permission to call your cell phone, or if you revoke permission, then these annoying auto dialed calls can be illegal under the Telephone Consumer Protection Act (TCPA) and can entitle you to $500 or $1500 per call in statutory damages.

If you live in Alabama and want to discuss your particular situation, please let us know and we'll be happy to do so. You can call us at 205-879-2447 or contact us through this blog or our website contact form.

February 17, 2012

Lawsuit Against BSI Stops A Wrongful Foreclosure In Alabama

Our clients in Huntsville recently sued several mortgage companies before a planned foreclosure that we feel would have been wrongful and illegal.

Foreclosures are still running rampant across our state and when they are illegal and wrongful foreclosures, they need to be stopped or reversed.

Learn about your rights and take the appropriate action to protect yourself.

February 15, 2012

Alabama Consumer Sues Portfolio Recovery For Calls After A Cease And Desist Letter

A 71 year old Alabama consumer sued Portfolio Recovery Associates for continuing to call him after he told them, over the phone and in writing (by certified mail) to stop all communication with him.

Remember Portfolio's slogan about giving debt collection a good name....

February 12, 2012

Alabama Consumer Sues Student Loan Collector Allied Interstate

You can read a recent Alabama consumer lawsuit against the large debt collector Allied Interstate. This lawsuit relates to alleged abusive collection practices related to a federal student loan.

If you have any similar experiences, let us know as we are curious to see how widespread the problem is with Allied Interstate -- we know Allied Interstate has been fined in the past for student loan abuses and we doubt this is an isolated event.

February 10, 2012

Alabama Lawsuits Against LVNV By Consumers

On our redesigned main site of Alabama Consumer, we have posted a new page which details some of the specific cases and allegations brought against the debt buyer LVNV Funding, LLC by Alabama consumers.

We will update this page with additional links to lawsuits. Let us know if you live in Alabama and have experiences with LVNV as we would like to continue to expand our knowledge of what Alabama consumers are facing.

February 2, 2012

Alabama Homeowner Sues Freddie Mac and Citi-Mortgage For Wrongful Foreclosure

You can follow the link below to read about our client who was sued by Freddie Mac for ejectment (or eviction) after a foreclosure by CitiMortgage.

Many Alabama consumers, unfortunately, just give up even when they have valid claims and defenses.

Our client, however, felt the foreclosure was wrongful and improper and she decided to take action.

She answered the lawsuit and then filed a counterclaim against Freddie Mac and CitiMortgage for fraud, wrongful foreclosure, violation of the Fair Debt Collection Practices Act, negligence, etc.

If you have dealt with similar issues in Alabama, please contact us at 205-879-2447.

Take care and we look forward to hearing about your story.

January 17, 2012

Homeowners In Alabama Sue Wells Fargo For Wrongful Foreclosure

We recently sued Wells Fargo for wrongful foreclosure and fraud and since it is a common type of fraud, we thought it might be helpful to show you the complaint we filed in federal court.

If you live in Alabama and you are dealing with anything similar to this with any mortgage company (especially Wells Fargo), please let us know as we would like to hear about your experiences.

November 24, 2011

FDCPA Lawsuit Against NCA and Smith Haynes

We recently filed suit (19 pages for the Complaint) under the FDCPA and Alabama state law against the debt collectors out of Kansas -- National Credit Adjusters and Smith Haynes & Watson.

There is a great deal of scams going on in the collection world related to pay day loans.

This lawsuit exposes a different facet of pay day loan collection scams -- assuming that the allegations are correct, which we believe they are.

I'm sure the defendants, National Credit Adjusters (also known as NCA) and Smith Haynes will strongly disagree and that is why, as an old judge told me once, they build these big courthouses. To decide who is right and who is wrong.

If you feel a collector has lied to you and you live in Alabama, please give us a call at 205-879-2447 and we'll be glad to chat with you and discuss your options.

November 19, 2011

LVNV Sued For Collecting After Losing Collection Lawsuit Against Alabama Consumer

You can read about what happened to an Alabama consumer after LVNV sued her, lost its case against her, and then continued to collect against her.

The collection activities included sending her collection letters from a law firm.

LVNV reported this debt on the consumer's credit reports, even though the court ruled the consumer did not owe the debt.

LVNV verified the debt, as did Equifax, when the consumer disputed the debt with Equifax by including a copy of the judgment in her favor.

So, finally, the consumer sued LVNV, the collection law firm (Couch), and Equifax, for violating the Fair Debt Collection Practices Act (FDCPA), the Fair Credit Reporting Act (FCRA), and Alabama state law.

If you live in Alabama and have been sued or threatened by a debt buyer or you won your case and the collection agency and debt buyer are still reporting the debt on your credit reports or they are sending you collection letters or calling you, feel free to pick up the phone and call us at 205-879-2447 or you can contact us through an online contact form and let us know if you prefer a phone call or email response.

September 4, 2011

All Past Issues Of Consumer Power Newsletters Online!

For several years we have sent out every Thursday (except when I am running late!) a free email newsletter where we talk about suing collection agencies, defending against collection lawsuits, correcting errors on your credit reports, fighting wrongful foreclosures, protecting against identity theft, and other consumer issues.

We call it "Consumer Power" as our intention is to give you knowledge and to give you encouragement to take action. Knowledge plus action is truly power and we want to empower consumers.

We have now set up a website, ConsumerPowerNewsletter.com, where we have all of the back issues. Usually a day or so after we put out our weekly newsletter, we will have the new issue up.

Feel free to check it out and let us know your thoughts, comments, and suggestions.

Thanks so much.

John Watts

November 23, 2010

Alabama Case Filings -- United Recovery Systems, LP Sued For FDCPA Violations

Debt collectors must give the appropriate disclosures when leaving voicemails which means, among other things, that the collection agency must inform the consumer that the call is "from a debt collector" and that the call is "an attempt to collect a debt."

Debt collectors do not like giving full disclosures because it can expose them to suit for illegally disclosing to a third party that the collector is collecting a debt. So . . . they don't want that but they still want to leave a message.

What to do?

The collector's argument is "We have to break one section of the law to avoid breaking another section" -- that is as stupid as it sounds. But that's what they do.

Here is a recent case we filed against United Recovery Systems, LP for allegedly failing to give proper disclosures (sometimes called the "Mini Miranda"):

COMPLAINT

COMES NOW the Plaintiff, by and through counsel, in the above styled cause, and for Plaintiff’s Complaint against the United Recovery states as follows:

1. This action arises out of United Recovery’s repeated violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”) and out of the invasions of Plaintiff’s personal and financial privacy by the United Recovery and its agents in their illegal efforts to collect a consumer debt from Plaintiff.

PARTIES

2. Plaintiff Steven McCartey (hereinafter “Plaintiff”) is a natural person who is a resident of Alabama.
3. United Recovery Systems, LP, (“United Recovery”) is a foreign debt collection firm that engages in the business of debt collection. Its principal place of business is in the State of Texas and it is incorporated in Texas.

FACTUAL ALLEGATIONS

4. Plaintiff allegedly incurred a financial obligation that was primarily for personal, family or household purposes and is therefore a “debt” as that term is defined by 15 U.S.C. § 1692a(5).
5. United Recovery made a large number of harassing and repeated phone calls to Plaintiff’s cell phone.
6. United Recovery refused to give all disclosures as required when leaving voicemails in its efforts to collecting the debt.
7. United Recovery refused to send required notices to Plaintiff in its collection efforts.
8. Plaintiff never gave United Recovery permission to call Plaintiff’s cell phone.
9. The volume and type of calls are harassing as the intent and motive behind them is to harass Plaintiff into paying United Recovery.

SUMMARY

10. All of the above-described collection communications made to Plaintiff by United Recovery and collection agents of United Recovery was made in violation of the FDCPA.
11. The above-detailed conduct by this United Recovery of harassing Plaintiff in an effort to collect this debt was also an invasion of Plaintiff’s privacy by an intrusion upon seclusion and resulted in actual damages to the Plaintiff.
12. This series of abusive collection calls by United Recovery and its agents caused Plaintiff stress and anguish as a result of these abusive calls.
13. United Recovery’s repeated attempts to collect this debt from Plaintiff and refusal to stop violating the law was an invasion of Plaintiff’s privacy and Plaintiff’s right to be left alone.
14. Plaintiff has suffered actual damages as a result of these illegal collection communications by this United Recovery in the form of anger, anxiety, emotional distress, fear, frustration, upset, humiliation, embarrassment, amongst other negative emotions, as well as suffering from unjustified and abusive invasions of personal privacy.

NEGLIGENT AND WANTON HIRING AND SUPERVISION

15. United Recovery negligently and/or wantonly hired, retained, or supervised incompetent debt collectors and are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.

CAUSES OF ACTION

COUNT I.
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. § 1692 et seq.

16. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein.
17. The acts and omissions of United Recovery and its agents constitute numerous and multiple violations of the FDCPA with respect to the Plaintiff, including the failure to give the required disclosures.
18. As a result of United Recovery’s violations of the FDCPA, Plaintiff is entitled to actual damages pursuant to 15 U.S.C. § 1692k(a)(1); statutory damages in an amount up to $1,000.00 pursuant to 15 U.S.C. § 1692k(a)(2)(A); (2) actual and compensatory damages; and, (3) reasonable attorney’s fees and costs pursuant to 15 U.S.C. § 1692k(a)(3), from United Recovery.

COUNT II.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION

19. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
20. Alabama law recognizes Plaintiff’s right to be free from invasions of privacy and United Recovery violated Alabama state law as described in this Complaint.
21. Congress explicitly recognized a consumer’s inherent right to privacy in collection matters in passing the Fair Debt Collection Practices Act, when it stated as part of its findings:
Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.

15 U.S.C. § 1692(a) (emphasis added).

22. Congress further recognized a consumer’s right to privacy in financial data in passing the Gramm Leech Bliley Act, which regulates the privacy of consumer financial data for a broad range of “financial institutions” including debt collectors (albeit without a private right of action), when it stated as part of its purposes:
It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ nonpublic personal information.

15 U.S.C. § 6801(a) (emphasis added).

23. United Recovery and/or its agents intentionally, recklessly, and/or negligently interfered, physically or otherwise, with the solitude, seclusion and or private concerns or affairs of the Plaintiff, namely, by repeatedly and unlawfully attempting to collect a debt and thereby invaded Plaintiff’s privacy.
24. United Recovery and its agents intentionally, recklessly, and/or negligently caused emotional harm to Plaintiff by engaging in highly offensive conduct in the course of collecting this debt, thereby invading and intruding upon Plaintiff’s right to privacy.
25. Plaintiff had a reasonable expectation of privacy in Plaintiff’s solitude, seclusion, private concerns or affairs, and private financial information.
26. The conduct of this United Recovery and its agents, in engaging in the above-described illegal collection conduct against Plaintiff, resulted in multiple intrusions and invasions of privacy by this United Recovery which occurred in a way that would be highly offensive to a reasonable person in that position.
27. As a result of such intrusions and invasions of privacy, Plaintiff is entitled to actual damages in an amount to be determined at trial from United Recovery.
28. All acts of United Recovery and its agents and/or employees were committed with malice, intent, wantonness, and/or recklessness and as such United Recovery is subject to punitive damages.

COUNT III.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS

29. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
30. United Recovery negligently, wantonly, and/or intentionally hired, retained, or supervised incompetent debt collectors, who were allowed or encouraged to violate the law as was done to Plaintiff, and are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.

COUNT IV
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT

31. All paragraphs of this Complaint are expressly adopted and incorporated herein as if fully set forth herein.
32. United Recovery acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
33. United Recovery violated all of the duties United Recovery had and such violations were made intentionally, willfully, recklessly, maliciously, wantonly, and negligently.
34. It was foreseeable, and United Recovery did in fact foresee it, the actions of the United Recovery would lead and did lead to the exact type of harm suffered by Plaintiff.
35. United Recovery acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
36. United Recovery invaded the privacy of Plaintiff as set forth in Alabama law.
37. Such negligence, malice, wantonness, recklessness, willfulness, and/or intentional conduct proximately caused the damages set forth in this complaint.
38. As a result of this conduct, action, and inaction of United Recovery, Plaintiff has suffered damage as set forth in this Complaint.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays that judgment be entered against United Recovery for $10,000:

COUNT I.
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. § 1692 et seq.

• for an award of actual damages pursuant to 15 U.S.C. § 1692k(a)(1) against United Recovery;
• for an award of statutory damages of $1,000.00 pursuant to 15 U.S.C. §1692k(a)(2)(A) against United Recovery;
• for an award of costs of litigation and reasonable attorney’s fees pursuant to 15 U.S.C. § 1692k(a)(3) against United Recovery; and
• for such other and further relief as may be just and proper.

COUNT II.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION

• for an award of actual damages from United Recovery for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent FDCPA violations and intentional, reckless, and/or negligent state law violations in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.

COUNT III.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS

• for an award of actual damages from United Recovery for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent FDCPA violations, intentional, reckless, and/or negligent hiring and supervision of incompetent debt collectors intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.

COUNT IV.

NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT

• for an award of actual damages from United Recovery for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damages; and
• for such other and further relief as may be just and proper.

Respectfully Submitted,

/s/ John G. Watts
John G. Watts (WAT056)
Attorney for Plaintiff

OF COUNSEL:
Watts Law Group, PC
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 879-2447
(888) 522-7167 facsimile
john@wattslawgroup.com

/s/ M. Stan Herring
M. Stan Herring (HER037)
Attorney for Plaintiff

OF COUNSEL:
M. Stan Herring, P.C.
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 714-4443
(888) 522-7167 facsimile
msh@mstanherringlaw.com


Serve United Recovery via certified mail at the following addresses:

United Recovery Systems, LP
c/o Douglas B. Schultz
5800 North Course Drive
Houston, Texas 77072

November 11, 2010

Alabama Case Filings -- TCPA/FDCPA Allegations Against NCO And Chase

We have talked about the rampant violations of the federal law known as the TCPA -- Telephone Consumer Protection Act -- which prohibits automated calls to cell or mobile phones without permission.

In a case we filed against Chase (credit card company) and the large debt collector NCO, allegations were made about alleged violations of the FDCPA (Fair Debt Collection Practices Act) and the TCPA.

These allegations are listed below:

COMPLAINT

COMES NOW the Plaintiff, by and through counsel, in the above styled cause, and for Plaintiff’s Complaint against the Defendants states as follows:
1. This action arises out of Defendants’ repeated violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA ”) and out of the invasions of Plaintiff’s personal and financial privacy by the Defendant and its agents in their illegal efforts to collect a consumer debt from Plaintiff.

PARTIES

2. Plaintiff is a natural person who is a resident of Alabama, and is a “consumer” as that term is defined by 15 U.S.C. § 1692a(3).
3. Defendant Chase Bankcard, LLC, (“Defendant” or “Chase”) is a foreign debt collection firm that engages in the business of debt collection. It conducts business in Alabama. Its principal place of business is in the State of Delaware and it is incorporated in Delaware.
4. Defendant NCO Financial Systems, Inc., (“Defendant” or “NCO”) is a foreign debt collection firm that engages in the business of debt collection. It conducts business in Alabama. Its principal place of business is the State of Pennsylvania and it is incorporated in Pennsylvania.

FACTUAL ALLEGATIONS

5. Plaintiff allegedly incurred a financial obligation that was primarily for personal, family or household purposes and is therefore a “debt” as that term is defined by 15 U.S.C. § 1692a(5).
6. Defendant Chase assigned the debt to Defendant NCO.
7. Defendant NCO began harassing collection activities against Plaintiff.
8. Defendant NCO made a large number of harassing and repeated phone calls to Plaintiff’s cell phone.
9. Defendant NCO refused on one or more occasions to give the mini-miranda and other disclosures as required when leaving voicemails in its efforts to collecting the debt.
10. Defendant NCO also illegally used an autodialer, predictive dialer, and/or pre-recorded calls to Plaintiff’s cell phone without permission to do so in violation of the Telephone Consumer Protection Act (TCPA).
11. Plaintiff never gave either Defendant permission to call Plaintiff’s cell phone with an autodialer, predictive dialer, or to use pre-recorded calls.
12. Defendant Chase is liable for these calls under the TCPA as they were made by its debt collector, Defendant NCO, as Defendant NCO told Plaintiff they were collecting this account on behalf of Defendant Chase.
13. The harassing and repeated phone calls have been made within the applicable statute of limitations period.

SUMMARY

14. All of the above-described collection communications made to Plaintiff by Defendants and collection agents of Defendants were made in violation of the FDCPA and TCPA.
15. The above-detailed conduct by these Defendants of harassing Plaintiff in an effort to collect this debt was also an invasion of Plaintiff’s privacy by an intrusion upon seclusion and resulted in actual damages to the Plaintiff.
16. This series of abusive collection calls by Defendants and their agents caused Plaintiff stress and anguish as a result of these abusive calls.
17. Defendants’ repeated attempts to collect this debt from Plaintiff and refusal to stop violating the law was an invasion of Plaintiff’s privacy and Plaintiff’s right to be left alone.
18. Plaintiff has suffered actual damages as a result of these illegal collection communications by these Defendants in the form of anger, anxiety, emotional distress, fear, frustration, upset, humiliation, embarrassment, amongst other negative emotions, as well as suffering from unjustified and abusive invasions of personal privacy.
19. All actions by Defendant NCO were in the line and scope of its agency relationship with Defendant Chase and Defendant Chase is responsible for all of the wrongful acts of the Defendant NCO.

NEGLIGENT AND WANTON HIRING AND SUPERVISION

20. Defendants negligently and/or wantonly hired, retained, or supervised incompetent debt collectors and are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.

CAUSES OF ACTION

COUNT I.
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. § 1692 et seq.

21. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein.
22. The acts and omissions of Defendant NCO and its agents constitute numerous and multiple violations of the FDCPA with respect to the Plaintiff, including the failure to give the required mini-miranda warning and other disclosures.
23. As a result of Defendant’s violations of the FDCPA, Plaintiff is entitled to actual damages pursuant to 15 U.S.C. § 1692k(a)(1); statutory damages in an amount up to $1,000.00 pursuant to 15 U.S.C. § 1692k(a)(2)(A); (2) actual and compensatory damages; and, (3) reasonable attorney’s fees and costs pursuant to 15 U.S.C. § 1692k(a)(3), from Defendant.

COUNT II.
VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT (TCPA)
(47 U.S.C. § 227)

24. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
25. Defendants have repeatedly violated the TCPA by the calls made to Plaintiff, specifically the numerous calls by illegal automatic dialers, predictive dialers, and/or pre-recorded messages that have been unleashed against Plaintiff by Defendants.
26. There is no exception or justification for the numerous violations of the TCPA by Defendants as Plaintiff has not consented to the Defendants to use these against Plaintiff’s cell phone.
27. Each call is a separate violation and entitles Plaintiff to statutory damages against Defendants in the amount of at least $500.00 per call and Plaintiff requests that since the violations were made intentionally or recklessly that the violations be assessed a statutory damage of $1,500.00 per call. 47 U.S.C. § 227(b)(3).
28. All actions taken by Defendants were taken with malice, were done willfully, recklessly and/or were done with either the desire to harm Plaintiff and/or with the knowledge that its actions would very likely harm Plaintiff and/or that its actions were taken in violation of the TCPA and/or that knew or should have known that its actions were in reckless disregard of the TCPA.
29. All of the violations of the TCPA proximately caused the injuries and damages set forth in this Complaint.

COUNT III.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION

30. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
31. Alabama law recognizes Plaintiff’s right to be free from invasions of privacy and Defendants violated Alabama state law as described in this Complaint.
32. Congress explicitly recognized a consumer’s inherent right to privacy in collection matters in passing the Fair Debt Collection Practices Act, when it stated as part of its findings:
Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.

15 U.S.C. § 1692(a) (emphasis added).
33. Congress further recognized a consumer’s right to privacy in financial data in passing the Gramm Leech Bliley Act, which regulates the privacy of consumer financial data for a broad range of “financial institutions” including debt collectors (albeit without a private right of action), when it stated as part of its purposes:
It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ nonpublic personal information.

15 U.S.C. § 6801(a) (emphasis added).
34. Defendants and/or their agents intentionally, recklessly, and/or negligently interfered, physically or otherwise, with the solitude, seclusion and or private concerns or affairs of the Plaintiff, namely, by repeatedly and unlawfully attempting to collect a debt and thereby invaded Plaintiff’s privacy.
35. Defendants and their agents intentionally, recklessly, and/or negligently caused emotional harm to Plaintiff by engaging in highly offensive conduct in the course of collecting this debt, thereby invading and intruding upon Plaintiff’s right to privacy.
36. Plaintiff had a reasonable expectation of privacy in Plaintiff’s solitude, seclusion, private concerns or affairs, and private financial information.
37. The conduct of these Defendants and their agents, in engaging in the above-described illegal collection conduct against Plaintiff, resulted in multiple intrusions and invasions of privacy by these Defendants which occurred in a way that would be highly offensive to a reasonable person in that position.
38. As a result of such intrusions and invasions of privacy, Plaintiff is entitled to actual damages in an amount to be determined at trial from Defendants.
39. All acts of Defendants and their agents and/or employees were committed with malice, intent, wantonness, and/or recklessness and as such Defendants are subject to punitive damages.

COUNT IV.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS

40. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
41. Defendants negligently, wantonly, and/or intentionally hired, retained, or supervised incompetent debt collectors, who were allowed or encouraged to violate the law as was done to Plaintiff, and are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.

COUNT V
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT

42. All paragraphs of this Complaint are expressly adopted and incorporated herein as if fully set forth herein.
43. Defendants acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
44. Defendants violated all of the duties Defendants had and such violations were made intentionally, willfully, recklessly, maliciously, wantonly, and negligently.
45. It was foreseeable, and Defendants did in fact foresee it, the actions of the Defendants would lead and did lead to the exact type of harm suffered by Plaintiff.
46. Defendants acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
47. Defendants invaded the privacy of Plaintiff as set forth in Alabama law.
48. Such negligence, malice, wantonness, recklessness, willfulness, and/or intentional conduct proximately caused the damages set forth in this complaint.
49. As a result of this conduct, action, and inaction of Defendants, Plaintiff has suffered damage as set forth in this Complaint.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that judgment be entered against Defendants:

COUNT I.
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. § 1692 et seq.

• for an award of actual damages pursuant to 15 U.S.C. § 1692k(a)(1) against Defendant NCO;
• for an award of statutory damages of $1,000.00 pursuant to 15 U.S.C. §1692k(a)(2)(A) against Defendant NCO;
• for an award of costs of litigation and reasonable attorney’s fees pursuant to 15 U.S.C. § 1692k(a)(3) against Defendant NCO.
• for such other and further relief as may be just and proper.

COUNT II.
TCPA

• for an award of actual damages from Defendants for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent TCPA violations in an amount to be determined at trial for Plaintiff;
• statutory damages of $500.00 or $1,500.00 per call; and
• for such other and further relief as may be just and proper.

COUNT III.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION

• for an award of actual damages from Defendants for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent FDCPA violations and intentional, reckless, and/or negligent state law violations in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.

COUNT IV.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS

• for an award of actual damages from Defendants for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent FDCPA/TCPA violations, intentional, reckless, and/or negligent hiring and supervision of incompetent debt collectors intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.

COUNT V.
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT

• for an award of actual damages from Defendants for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damages; and
• for such other and further relief as may be just and proper.

Respectfully Submitted,
/s/ John G. Watts
John G. Watts (WAT056)
Attorney for Plaintiff

OF COUNSEL:
Watts Law Group, PC
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 879-2447
(888) 522-7167 facsimile
john@wattslawgroup.com

/s/ M. Stan Herring
M. Stan Herring (HER037)
Attorney for Plaintiff

OF COUNSEL:
M. Stan Herring, P.C.
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 714-4443
(888) 522-7167 facsimile
msh@mstanherringlaw.com

PLAINTIFF DEMANDS A TRIAL BY JURY IN THIS CAUSE.

/s/ John G. Watts
Attorney for Plaintiff

Serve defendants via certified mail at the following addresses:

Chase Bankcard, LLC
c/o The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801

NCO Financial Systems, Inc.
The Corporation Company
2000 Interstate Park Dr. Ste 204
Montgomery, AL 36109

November 10, 2010

Alabama Case Filings – LVNV Sued For FDCPA Violations After Suing A Consumer Who Had Paid The Debt Off

We have warned consumers to be very careful about settling debts as sometimes debt collectors will come after you even after you have settled your case.

Here is an example of a lawsuit against the well known debt collector (debt buyer) LVNV and Leading Edge Recovery Solutions, LLC, related to allegations that the consumer settled the debt but yet LVNV then sued the consumer. LVNV refused to dismiss the case with prejudice but when the trial came, LVNV did not show up to court according to the judge's order.

Here are the allegations if you are interested in reading:


COMPLAINT

COMES NOW the Plaintiff, by and through counsel, in the above styled cause, and for Plaintiff’s Complaint against the Defendants state as follows:
1. This action arises out of Defendant LVNV’s repeated violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA ”), and out of state law violations and out of the invasions of Plaintiff’s personal and financial privacy by all of the Defendants and their agents in their illegal efforts to collect a consumer debt from Plaintiff.
2. Debt collectors are abusing Alabama consumers at an astonishing rate and are doing so as they believe few consumers know their rights or will act upon their rights so the economic gain far outweighs any perceived danger of a lawsuit or verdict.
3. Congress found it necessary to pass the FDCPA due to rampant abusive practices by dishonorable debt collectors. 15 USC § 1692 is entitled "Congressional findings and declaration of purpose" and it states as follows:
(a) There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.
(b) Existing laws and procedures for redressing these injuries are inadequate to protect consumers.
(c) Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.
(d) Abusive debt collection practices are carried on to a sub¬stantial 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 com-merce.
(e) 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 col¬lection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.

[Emphasis added].

PARTIES

4. Plaintiff is a natural person who is a resident of Alabama, and is a “consumer” as that term is defined by 15 U.S.C. § 1692a(3).
5. Defendant LVNV Funding, LLC, (“Defendant” or “LVNV ”) is a foreign debt collection firm that engages in the business of debt collection. It conducts business in Alabama. Its principal place of business is in the State of Nevada and it is incorporated in Delaware.
6. Defendant Leading Edge Recovery Solutions, LLC., (“Defendant” or “Leading Edge”) is a foreign debt collection firm that engages in the business of debt collection. It conducts business in Alabama. Its principal place of business is in the State of Illinois and it is incorporated in Illinois.

Factual Allegations

7. Plaintiff settled his alleged LVNV debt with LVNV and LERS in March 2008 by paying $5,144.77 on an alleged debt of $7,349.63, which resulted in a zero balance being owed.
8. Defendant LVNV started (within the last 12 months) calling Plaintiff to collect this non-existent debt after Plaintiff settled the debt with Defendant.
9. Plaintiff pointed out to Defendant LVNV that he paid the debt and Defendant LVNV refused to stop collection activities.
10. Instead, with full knowledge that Plaintiff owed Defendant LVNV no money, Defendant LVNV sued Plaintiff, for the approximate difference between the amount claimed to be owed and the amount Plaintiff paid Defendants in March 2008.
11. In this suit, Defendant LVNV asserted it was the owner of a certain debt allegedly owed by Plaintiff.
12. In Plaintiff’s Answer, Plaintiff produced a copy of the settlement collection letter by Defendants and the cancelled settlement check to the Court and the Defendant LVNV.
13. In Plaintiff’s Answer to the collection suit, Plaintiff stated “I would like for this company [LVNV] to do what they said they would do as I have already done.”
14. The collection letter from 2008 stated if the settlement amount was paid, “we will consider the account SETTLED IN FULL.”
15. An honorable debt collector would have immediately dismissed the case with prejudice.
16. Defendant LVNV refused to dismiss the lawsuit.
17. Defendant LVNV is not an honorable debt collector.
18. Defendant LVNV waited until immediately before trial to take any action – this was an attempt to take Plaintiff’s money when Plaintiff owed no money to Defendant LVNV.
19. Defendant LVNV, realizing it had been caught, tried to dismiss the lawsuit the Friday before trial. The motion to dismiss the lawsuit requested that the dismissal be without prejudice as the Defendant LVNV intended to be able to sue the Plaintiff in the future or to sell or assign the debt to a collector who would then collect against Plaintiff. The Motion is dated April 27, 2010, but it is stamped filed on June 11, 2010, over 30 days after Defendant had been caught filing this bogus suit.
20. Plaintiff had to hire legal counsel.
21. The Court denied the “motion to dismiss without prejudice” on June 11, 2010.
22. Showing a complete disrespect to the Plaintiff and to the Court, Defendant LVNV and/or Defendant LVNV’s counsel did not even show up for the trial in the bogus and frivolous suit it brought against Plaintiff.
23. The Judge entered an Order dismissing the case with prejudice on June 15, 2010. The Order states “Dismissed with prejudice. Plaintiff [LVNV] failed to appear.” [Emphasis added].
24. The Defendant LVNV filed and continued to prosecute the case without any reasonable basis to do so.
25. The case against Plaintiff was brought with malice against Plaintiff.
26. Defendant LVNV has falsely reported to the credit reporting agencies that Plaintiff owed it money.
27. This was done in order to extort money out of Plaintiff.
28. Defendant LVNV assigned the alleged debt to Defendant LERS at some point prior to March 2008.
29. Defendant LERS only took collection actions authorized by Defendant LVNV and only engaged in authorized collection activities authorized by Defendant LVNV against Plaintiff .
30. All of the activities of Defendant LERS were taken in the line and scope of its agency relationship with Defendant LVNV.
31. Defendant LERS sent a collection letter to Plaintiff in early 2008 making the representation that if Plaintiff paid $5,144.74, that the account would be settled in full and that the credit report agencies would be informed of this.
32. This collection letter was fraudulent as Defendants LVNV and LERS had no intention of considering the account settled in full and Defendant LVNV had no intention of informing the credit reporting agencies that the account was settled in full.
33. One intention of the Defendants LVNV and LERS was to deceive Plaintiff into paying $5,144.74 by promising that this payment would close the account.
34. The Defendants LVNV and LERS intended that after the payment of the $5,144.74 that either Defendants LVNV and LERS jointly or separately would continue collection activities against Plaintiff.
35. Some of these collection activities would include:
• Collection calls;
• False credit reporting that a balance was still owed and that the account had not been settled in full; and
• Filing of a lawsuit.
36. Defendant LVNV took some or all of the actions listed above and may have engaged in other collection activities against Plaintiff that Plaintiff is not aware of at this time.
37. Defendants LVNV and LERS suppressed the truth from Plaintiff in that Defendants LVNV and LERS did not reveal that the settlement offer was fraudulent and that Defendants either separately or jointly would continue to engage in collection activities against Plaintiff.
38. Defendants LVNV and LERS had an obligation and a duty to speak the truth as Defendants LVNV and LERS are not allowed to make statements which do not contain the full truth.
39. Plaintiff believed the Defendants LVNV and LERS and reasonably and justifiably relied upon the misrepresentations and suppressions of material facts.
40. Plaintiff has been damaged by the misrepresentations and suppressions of material facts by Defendants LVNV and LERS in that Plaintiff paid $5,144.74 on a debt which is highly likely Plaintiff did not even owe, but regardless of that fact, Plaintiff paid this money and yet was subjected to the reprehensible abusive collection activities of the Defendants LVNV and LERS including false credit reporting and being sued by Defendant LVNV.
41. Plaintiff just discovered the fraud when Defendant LVNV, in the last 12 months, began collection activities against Plaintiff.
42. Defendants LVNV and LERS misconduct caused damage to the Plaintiff.
43. The Defendants LVNV and LERS misconduct was designed to harm the Plaintiff as Defendants LVNV and LERS acted with full knowledge of the damage this type of misconduct will cause.
44. Defendants LVNV and LERS were successful in their plan, scheme, design, and did in fact cause severe damages to Plaintiff.

SUMMARY

45. All of the above-described collection communications made to Plaintiff by Defendant LVNV and collection agents of Defendant LVNV were made in violation of the FDCPA, including (but not limited to) §1692d, §1692e (including (2), (5), (8), (10)), §1692f (including (1)).
46. The above-detailed conduct by these Defendants LVNV and LERS of harassing Plaintiff in an effort to collect this debt was also an invasion of Plaintiff’s privacy by an intrusion upon seclusion and resulted in actual damages to the Plaintiff.
47. This series of abusive collection actions by Defendants LVNV and LERS and their agents caused Plaintiff stress and anguish as a result of these abusive calls.
48. Defendants LVNV and LERS attempts to collect this debt from Plaintiff and refusal to stop violating the law is an invasion of Plaintiff’s privacy and Plaintiff’s right to be left alone.
49. Plaintiff has suffered actual damages as a result of these illegal collection communications by these Defendants LVNV and LERS in the form of anger, anxiety, emotional distress, fear, frustration, upset, humiliation, embarrassment, amongst other negative emotions, as well as suffering from unjustified and abusive invasions of personal privacy.
50. The only way that abusive debt collectors like Defendants LVNV and LERS will stop their abusive practices towards consumers is by a jury verdict fully compensating Plaintiffs for the harm done to Plaintiffs and by a punitive damage award in excess of $750,000.
51. A punitive damage award in excess of $750,000 will get the attention of Defendants LVNV and LERS and other abusive debt collectors so that they will realize that it no longer makes economic sense to abuse consumers in Alabama and to gain an unfair competitive advantage over honorable, law abiding collectors.
52. A full compensatory damage award and a full punitive damage award will accomplish the goals of Congress in passing the FDCPA - stop abusive collection practices against consumers and prevent dishonorable debt collectors from having an unfair advantage over collectors that operate within the boundaries of the law.

NEGLIGENT AND WANTON HIRING AND SUPERVISION

53. Defendants LVNV and LERS negligently and/or wantonly hired, retained, or supervised incompetent debt collectors and are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.

CAUSES OF ACTION

COUNT I. (LVNV ONLY)
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. § 1692 et seq.

54. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein.
55. The acts and omissions of Defendant LVNV and its agents constitute numerous and multiple violations of the FDCPA with respect to the Plaintiff.
56. As a result of Defendant LVNV’s violations of the FDCPA, Plaintiff is entitled to actual damages pursuant to 15 U.S.C. § 1692k(a)(1); statutory damages in an amount up to $1,000.00 pursuant to 15 U.S.C. § 1692k(a)(2)(A); (2) actual and compensatory damages; and, (3) reasonable attorney’s fees and costs pursuant to 15 U.S.C. § 1692k(a)(3), from Defendant LVNV.

COUNT II. (ALL DEFENDANTS)
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION

57. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
58. Alabama law recognizes Plaintiff’s right to be free from invasions of privacy and Defendants violated Alabama state law as described in this Complaint.
59. Congress explicitly recognized a consumer’s inherent right to privacy in collection matters in passing the Fair Debt Collection Practices Act, when it stated as part of its findings:
Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.

15 U.S.C. § 1692(a) (emphasis added).
60. Congress further recognized a consumer’s right to privacy in financial data in passing the Gramm Leech Bliley Act, which regulates the privacy of consumer financial data for a broad range of “financial institutions” including debt collectors (albeit without a private right of action), when it stated as part of its purposes:
It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ nonpublic personal information.

15 U.S.C. § 6801(a) (emphasis added).
61. Defendants and/or their agents intentionally, recklessly, and/or negligently interfered, physically or otherwise, with the solitude, seclusion and or private concerns or affairs of the Plaintiff, namely, by repeatedly and unlawfully attempting to collect a debt and thereby invaded Plaintiff’s privacy.
62. Defendants and their agents intentionally, recklessly, and/or negligently caused emotional harm to Plaintiff by engaging in highly offensive conduct in the course of collecting this debt, thereby invading and intruding upon Plaintiff’s right to privacy.
63. Plaintiff had a reasonable expectation of privacy in Plaintiff’s solitude, seclusion, private concerns or affairs, and private financial information.
64. The conduct of these Defendants and their agents, in engaging in the above-described illegal collection conduct against Plaintiff, resulted in multiple intrusions and invasions of privacy by these Defendants which occurred in a way that would be highly offensive to a reasonable person in that position.
65. As a result of such intrusions and invasions of privacy, Plaintiff is entitled to actual damages in an amount to be determined at trial from Defendants.
66. All acts of Defendants and their agents and/or employees were committed with malice, intent, wantonness, and/or recklessness and as such Defendants are subject to punitive damages.

COUNT III. (ALL DEFENDANTS)
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS

67. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
68. Defendants’ collectors are allowed and encouraged to break the law in order to collect debts.
69. Defendants are aware of the wrongful conduct of their collectors.
70. Defendants negligently, wantonly, and/or intentionally hired, retained, or supervised incompetent debt collectors, who were allowed or encouraged to violate the law as was done to Plaintiff, and Defendants are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.

COUNT IV (ALL DEFENDANTS)
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT

71. All paragraphs of this Complaint are expressly adopted and incorporated herein as if fully set forth herein.
72. Defendants acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in their dealings with and about Plaintiff as set forth in this Complaint.
73. Defendants violated all of the duties Defendants had and such violations were made intentionally, willfully, recklessly, maliciously, wantonly, and negligently.
74. It was foreseeable, and Defendants did in fact foresee it, the actions of the Defendants would lead and did lead to the exact type of harm suffered by Plaintiff.
75. Defendants acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in their dealings with and about Plaintiff as set forth in this Complaint.
76. Defendants invaded the privacy of Plaintiff as set forth in Alabama law.
77. Such negligence, malice, wantonness, recklessness, willfulness, and/or intentional conduct proximately caused the damages set forth in this complaint.
78. As a result of this conduct, action, and inaction of Defendants, Plaintiff has suffered damages as set forth in this Complaint.

COUNT V (LVNV ONLY)
MALICIOUS PROSECUTION AND ABUSE OF PROCESS AGAINST DEFENDANT

79. All paragraphs of this Complaint are expressly adopted and incorporated herein as if fully set forth herein.
80. Defendant LVNV instituted and continued prosecuting the lawsuit against Plaintiff with no reasonable basis to do so.
81. Defendant LVNV instituted and continued prosecuting the lawsuit against Plaintiff with malice and with the design and plan that the lawsuit would result in an illegal judgment against the Plaintiff or would cause Plaintiff to pay Defendant LVNV money on a non-existent debt.
82. The malicious plan of Defendant LVNV included the knowledge that the fraudulent judgment would be devastating to Plaintiff’s credit report and credit scores and would lead to garnishments and the Defendant LVNV tried to accomplish this by the Defendant LVNV’s malicious and abusive actions.
83. Throughout the entire illegal lawsuit against Plaintiff, Defendant LVNV knew at all times that there was no basis for the lawsuit and the intent and design of filing the lawsuit and continuing to prosecute the lawsuit was to extort money from the Plaintiff which Defendant LVNV knew it was not entitled to receive.
84. The litigation against Plaintiff filed by Defendant LVNV eventually resulted in an adjudication in favor of Plaintiff after Defendant LVNV realized that its illegal scheme and plan had unraveled in that it had been caught, so much so that Defendant LVNV first tried to dismiss the case without prejudice and then refused to even show up for trial.
85. The illegal and improper actions of the Defendant LVNV constitute malicious prosecution and abuse of process.
86. The Plaintiff suffered past and future emotional distress and monetary loss as a direct and proximate result of Defendant LVNV’s abuse of process and malicious prosecution.

COUNT VI (ALL DEFENDANTS)
FRAUD

87. All paragraphs of this Complaint are expressly adopted and incorporated herein as if fully set forth herein.
88. Defendant LERS only took collection actions authorized by Defendant LVNV and only engaged in collection activities authorized by Defendant LVNV against Plaintiff.
89. All of the activities of Defendant LERS were taken in the line and scope of its agency relationship with Defendant LVNV.
90. Defendant LERS sent a collection letter to Plaintiff in early 2008 making the representation that if Plaintiff paid $5,144.74, that the account would be settled in full and that the credit report agencies would be informed of this.
91. This collection letter was fraudulent as Defendants LVNV and LERS had no intention of considering the account settled in full and Defendant LVNV had no intention of informing the credit reporting agencies that the account was settled in full.
92. One intention of the Defendants LVNV and LERS was to deceive Plaintiff into paying $5,144.74 by promising that this payment would close the account.
93. The Defendants LVNV and LERS intended that after the payment of the $5,144.74 that either Defendants LVNV and LERS jointly or separately would continue collection activities against Plaintiff.
94. Some of these collection activities would include:
• Collection calls;
• False credit reporting that a balance was still owed and that the account had not been settled in full; and
• Filing of a lawsuit.
95. Defendant LVNV took some or all of the actions listed above and may have engaged in other collection activities against Plaintiff that Plaintiff is not aware of at this time.
96. Defendants LVNV and LERS suppressed the truth from Plaintiff in that Defendants LVNV and LERS did not reveal that the settlement offer was fraudulent and that Defendants either separately or jointly would continue to engage in collection activities against Plaintiff.
97. Defendants LVNV and LERS had an obligation and a duty to speak the truth as Defendants LVNV and LERS are not allowed to make statements which do not contain the full truth.
98. Plaintiff believed the Defendants LVNV and LERS and reasonably and justifiably relied upon the misrepresentations and suppressions of material facts.
99. Plaintiff has been damaged by the misrepresentations and suppressions of material facts by Defendants LVNV and LERS in that Plaintiff paid $5,144.74 on a debt which is highly likely Plaintiff did not even owe, but regardless of that fact, Plaintiff paid this money and yet was subjected to the reprehensible abusive collection activities of the Defendants LVNV and LERS including false credit reporting and being sued by Defendant LVNV.
100. Defendants committed the misrepresentation and suppressions of material facts intentionally, willfully, recklessly, wantonly, negligently, and/or innocently.
101. Plaintiff just discovered the fraud when Defendant LVNV, in the last 12 months, began collection activities against Plaintiff.
102. The misconduct of Defendants caused Plaintiff injuries and damages.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays that judgment be entered against Defendants LVNV and LERS:

COUNT I. (LVNV ONLY)
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. § 1692 et seq.

• for an award of actual damages pursuant to 15 U.S.C. § 1692k(a)(1) against Defendant LVNV;
• for an award of statutory damages of $1,000.00 pursuant to 15 U.S.C. §1692k(a)(2)(A) against Defendant LVNV;
• for an award of costs of litigation and reasonable attorney’s fees pursuant to 15 U.S.C. § 1692k(a)(3) against Defendant LVNV.
• for such other and further relief as may be just and proper.

COUNT II. (ALL DEFENDANTS)
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION

• for an award of actual damages from Defendants for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent FDCPA violations and intentional, reckless, and/or negligent invasions of privacy in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.

COUNT III. (ALL DEFENDANTS)
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS

• for an award of actual damages from Defendants for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent violations and intentional, reckless, and/or negligent hiring and supervision of incompetent debt collectors in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.

COUNT IV. (ALL DEFENDANTS)
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT

• for an award of actual damages from Defendants for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damages; and
• for such other and further relief as may be just and proper.

COUNT V (LVNV ONLY)
MALICIOUS PROSECUTION AND ABUSE OF PROCESS AGAINST DEFENDANT

• for an award of actual damages from Defendant LVNV for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or wrongful violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damages; and
• for such other and further relief as may be just and proper.

COUNT VI (ALL DEFENDANTS)
FRAUD

• for an award of actual damages from Defendants for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or wrongful violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damages; and
• for such other and further relief as may be just and proper.
Respectfully Submitted,

/s/ John G. Watts
John G. Watts (WAT056)

Attorney for Plaintiff
OF COUNSEL:
WATTS LAW GROUP, PC
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 879-2447
(888) 522-7167 facsimile
john@wattslawgroup.com

/s/ M. Stan Herring
M. Stan Herring (HER037)
Attorney for Plaintiff

OF COUNSEL:
M. STAN HERRING, P.C.
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 714-4443
(888) 522-7167 facsimile
msh@mstanherringlaw.com


PLAINTIFF DEMANDS A TRIAL BY JURY IN THIS CAUSE.

/s/ John G. Watts
Attorney for Plaintiff

Serve defendants via certified mail at the following address:

LVNV Funding, LLC
c/o CT Corporation System
2 North Jackson St., Suite 605
Montgomery, Alabama 36104

Leading Edge Recovery Solutions, LLC
c/o CT Corporation System
2 North Jackson St., Suite 605
Montgomery, Alabama 36104

Here is a video discussing the dangers of settling with debt collectors:

November 8, 2010

Alabama Case Filings - Wrongful Foreclosure Suit Against LPP Mortgage

LPP is a mortgage company (perhaps only the servicing company) that has taken over a lot of defaulted loans of New South Federal. Many Alabama consumers were in the process of modifying their loans with New South when the FDIC took over the bank in December, 2009.

We have met with a lot of consumers who claim that LPP has not treated them right in the loan medication process and some claim that LPP lied to them about whether a foreclosure would occur.

You may know that in Alabama foreclosures are "non judicial" which means no judge gets to approve the foreclosure before it happens. But after foreclosure, the alleged new owner (almost always the mortgage company) must sue you to eject (evict) you from the home. This gives you an opportunity to have a judge review what has happened.

Here are some of the allegations of a recent counterclaim alleging fraud in the postponement of a foreclosure we filed after LPP foreclosed on our clients' property and then sued them to eject them from their home:


AMENDED ANSWER AND COUNTERCLAIM

COME NOW Defendants, by and through their attorneys of record and file their Amended Answer to the LPP’s Complaint, and their Counterclaim pursuant to Rule 13 of the Alabama Rules of Civil Procedure as follows:

BACKGROUND INFORMATION ON MORTGAGE FORECLOSURE CASES

1. This state is facing a crisis of epic proportions.
2. Foreclosures are sweeping through this state at an alarming rate, damaging communities in the process.
3. More alarming, however, are the vast numbers of foreclosures that are illegal.
4. All across this country, and in Alabama, companies are foreclosing when they have no legal right to foreclose.
5. Companies that do not properly own the note and mortgage are foreclosing. When questioned, they belittle efforts by Judges to ensure that only companies with the right to foreclose actually foreclose.
6. The typical response to questions by homeowners and Judges is “This is not a big deal. Don’t worry about technicalities on who owns the loan. You can trust us - we are the big banks after all.”
7. Even more disturbing is that these banks and mortgage companies are engaged in wholesale fraud against homeowners in the area of modifying the loan agreement or postponing the foreclosure.
8. This case is a perfect example of what is happening across the country and this state.

ANSWER

For answer to the LPP’s Complaint, Defendants respond as follows:

1. All material allegations are denied.

AFFIRMATIVE DEFENSES TO THE UNDERLYING
FORECLOSURE AND EJECTMENT ACTION

1. Defendants allege that there was no default at the time of the foreclosure.
2. Defendants allege that the LPP did not have actual physical possession of the original note at the time the foreclosure.
3. Defendants allege that acceleration was improper and in violation of the contract between the parties.
4. Defendants allege that the parties entered into an agreement which cured any alleged default and is an absolute defense to foreclosure.
5. Defendants allege that the LPP failed to comply with applicable mortgage servicing regulations, guidelines and agreements and as such a condition precedent to acceleration and foreclosure has been violated requiring dismissal of the underlying foreclosure action.
6. Defendants allege that the LPP failed to offer pre-foreclosure loss mitigation as required. This failure requires that the underlying action seeking foreclosure be dismissed or abated until such time as this requirement is satisfied.
7. Defendants allege that the LPP did not have standing to initiate a foreclosure or ejectment action against Defendants.
8. Defendants allege that the assignments, endorsements, or allonges from, to, or involving LPP, or any other entity were void, voidable, illegal, without legal effect and are otherwise invalid and unenforceable as a matter of law.
9. The foreclosing entity lacked standing to initiate a foreclosure, therefore the foreclosure is void or at least voidable and no title has passed to LPP as there was no legal title to pass to it from the foreclosing entity.
10. The title taken to the property by the LPP is of no effect and is void because the underlying foreclosure was commenced in violation of law on one or more of the following grounds:
a. The foreclosing entity lacked standing to foreclose.
b. The foreclosure was taken in violation of law in that the foreclosing entity did not own the mortgage debt upon which it foreclosed and therefore could pass no legal title to the lands it claimed to foreclose nor could it acquire legal title to the lands that it foreclosed upon.
c. The foreclosure was taken in violation of law in that the default was exaggerated, inflated and based upon improper and illegal mortgage servicing practices on the part of the foreclosing entity and its agents or employees.
d. The foreclosure is voidable in that the foreclosure sale was completed by fraud, deceit or trickery on the part of the foreclosing entity and its agents, employees or servants in that the foreclosing parties represented that Defendants would not be foreclosed upon, but then the LPP failed to follow this promise.
e. The LPP failed to strictly comply with the requirements set out in Alabama law and the contract between the parties, with respect to notice, time and place and other legal provisions thereby rendering the foreclosure void.
f. The LPP failed to engage in loss mitigation required by its agreements and federal servicing guidelines which the entity is subject to, and because of the failure of the condition precedent to foreclosure the acceleration and default were invalid and illegal and renders the foreclosure void.
g. There was no default upon which to accelerate based upon the agreement to modify or forbear the underlying debt.
h. The LPP that allegedly foreclosed on Defendants had no authority to do so as they did not own the note and mortgage so as to give them the right to foreclose.

COUNTERCLAIM

Defendants herewith their counterclaim as follows:
1. This action arises out of LPP’s repeated violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), and out of state law violations and out of the invasions of Defendants’ personal and financial privacy by the LPP and its agents in their illegal efforts to collect a consumer debt from Defendants.
PARTIES
2. LPP LPP Mortgage, Ltd. (“LPP”) in this action is a foreign corporation doing business in Marshall County, Alabama, and is considered a debt collector under the FDCPA as it was assigned the debt at issue when the debt was allegedly in default.
3. Fictitious Defendants “A”, “B” and “C” thereby intending to refer to the legal entity, person, firm or corporation which was responsible for or conducted the wrongful acts alleged in the counterclaim; names of the Fictitious parties are unknown to the Defendants at this time but will be added by amendment when ascertained.
4. Defendants are residents of Alabama, and are over the age of 19.

STATEMENT OF FACTS

5. Congress found it necessary to pass the FDCPA due to rampant abusive practices by dishonorable debt collectors. 15 USC § 1692 is entitled "Congressional findings and declaration of purpose" and it states as follows:
(a) There is abundant evidence of the use of abusive, decep¬tive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.
(b) Existing laws and procedures for redressing these injuries are inadequate to protect consumers.
(c) Means other than misrepresentation or other abusive debt collection practices are available for the effective collec¬tion of debts.
(d) Abusive debt collection practices are carried on to a sub¬stantial 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 com-merce.
(e) 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.

[Emphasis added].

6. Defendants incurred a financial obligation that was primarily for personal, family or household purposes (Defendants’ home loan) and is therefore a “debt” as that term is defined by 15 U.S.C. § 1692a(5).
7. LPP claims the debt was in default at the time the servicing rights were assigned or transferred to LPP on or about December 18, 2009.
8. LPP is considered a “debt collector” and began engaging in debt collection activities against Defendants.
9. LPP failed to make all required disclosures to Defendants in violation of the FDCPA.
10. Misrepresentations were made regarding the character, amount, or legal status of the debt.
11. The amount of the debt, the amount of fees and charges, were incorrect and not supported by the law and by the note and mortgage.
12. The foreclosure was illegal and constituted a threat to take action which LPP was not legally entitled to take.
13. As set forth below, LPP used false representations and/or deceptive means to collect on this debt.
14. The collection methods employed by LPP were harassing and illegal.
15. Defendants were in a loan modification process with LPP when LPP requested additional papers for the loan modification on May 11, 2010 and gave Defendants 15 days to send the papers to the LPP.
16. Thus, Defendants had until May 26, 2010 to return the papers.
17. Defendants called the week of May 11, 2010 to confirm that the sale was postponed and LPP assured Defendants it was. Defendants were told the same thing at least one other occasion.
18. Defendants sent the papers to LPP and LPP received the papers on May 23, 2010, within the 15 day period.
19. Amazingly, LPP foreclosed on May 25, 2010, within the 15 day window.
20. The sale was without proper notice to Defendants and in direct derogation of Alabama common and statutory law.
21. LPP sent Defendants a letter denying the loan modification.
22. The only reason for the denial of the loan modification was that a foreclosure occurred on May 25, 2010.
23. LPP alleges that it is the purchaser of the property made the subject of this suit.
24. LPP has pursued an order ejecting Defendants from their home while representing to the Court that the foreclosure sale was lawful and that the LPP had the present right, ownership and authority to pursue the foreclosure and that LPP has the right to evict the Defendants.
25. LPP has represented to this Court that it is the proper holder of said mortgage and therefore foreclosed in accordance with Alabama law and its rights under the security agreement.
26. Defendants allege that the LPP lacked standing to foreclose in that it has no present legal right to enforce the security agreement that underlies the foreclosure action.
27. Defendants allege that the alleged assignments between the original lender, and any other entity is defective, void, or otherwise unenforceable.
28. Defendants contend that said sale was wrongful, illegal, in violation of law and the documents governing the relationship between Defendants and the owners of their mortgage.
29. Defendants contend that the foreclosing entity lacked standing to initiate a foreclosure and that the foreclosure is void or at least voidable and that no title has passed to LPP as there was no legal title to pass to it from the foreclosing entity.
30. Defendants allege that the actions of the LPP, and its agents, employees and servants were wrongful.
31. Defendants allege that the actions of the LPP in bringing an action for ejectment from their home and the LPP wrongfully foreclosing is a violation of law, wrongful and tortuous and that LPP holds no title to the home or property, and that the actions of LPP constitutes negligence, wantonness, intentional misconduct, fraud, breach of contract, abuse of process and slander of title.
32. As a direct result of the acts complained of, Defendants have been caused to suffer, and will continue to suffer great mental anguish, damage to their reputation, economic and emotional damages and claim from LPP all damages allowable under the law.
33. All parties acted within the line and scope of any agency relationship and all of their employees and agents acted with the line and scope of their employment and/or agency relationship.


COUNT ONE
NEGLIGENCE

34. Defendants reallege all paragraphs as if set out here in full.
35. The LPP negligently conducted a foreclosure sale on Defendants’ property and have negligently attempted to eject Defendants from the home they rightfully own since the foreclosure performed is void.
36. The LPP negligently handled, serviced, and processed payments, charges, fees, expenses, and other aspects of Defendants’ loan and mortgage, including the loan modification process.
37. As a direct result of the said negligence, Defendants were injured and damaged as alleged above and have suffered mental anguish, economic injury and all other damages allowed by law.
38. As a result thereof, the LPP is liable for all natural, proximate and consequential damages due to their negligence.

COUNT TWO
WANTONNESS

39. Defendants reallege all paragraphs as if set out here in full.
40. The LPP acted with reckless indifference to the consequences, and consciously and intentionally conducted a wrongful foreclosure sale on Defendants’ property and the LPP has acted with reckless indifference to the consequences, and consciously and intentionally in instituting this action to eject Defendants from the home they rightfully owns since the foreclosure performed is void.
41. The LPP wantonly applied, imposed, or created charges, fees, expenses, and payments, and other aspects of the Defendants’ loan and mortgage including the loan modification process.
42. These actions were taken with reckless indifference to the consequences, consciously and intentionally in an effort to increase profits for the LPP.
43. The LPP knew that these actions were likely to result in injury to Defendants including financial and emotional injuries and mental anguish.
44. As a result thereof, the LPP is liable for all natural, proximate and consequential damages due to its wantonness as well as punitive damages.

COUNT THREE
UNJUST ENRICHMENT

45. Defendants adopt and reallege all paragraphs as if set out here in full.
46. The actions of the LPP in foreclosing on the home of Defendants in violation of law resulted in the LPP being unjustly enriched by the payment of fees, insurance proceeds and equity in the home.
47. As a result of the LPP’s unjust enrichment, Defendants have been injured and damaged in that Defendants have been forced to pay charges that were illegal, wrong in character, wrong in amount, unauthorized, or otherwise improper under threat of and the actual illegal foreclosure by the LPP.
48. Defendants claim all damages allowable under law as a result of the LPP’s wrongful conduct and unjust enrichment.

COUNT FOUR
WRONGFUL FORECLOSURE

49. Defendants reallege all prior paragraphs as if set out here in full.
50. The LPP has initiated a foreclosure proceeding against Defendants in violation of law and the LPP has wrongfully brought an action for ejectment.
51. The foreclosure proceeding by the LPP and ejectment action by LPP was either negligent, wanton or intentional, depending on proof adduced at trial.
52. As a result thereof, the LPP is liable for all natural, proximate and consequential damages due to its actions including an award of punitive damages.

COUNT FIVE
ABUSE OF PROCESS

53. Defendants reallege all paragraphs as if set out here in full.
54. The LPP maliciously obtained the issuance of the writ or process of ejectment, from this Court and had it served on Defendants.
55. The LPP abused the said writ or process because the attempt to eject Defendants from their home with the knowledge that they are the rightful owner of their home and that the LPP had no right to act against them.
56. As the proximate result of LPP abuse of the said writ or process, Defendants were caused damages and will continue to suffer injuries and damages.
57. Defendants claim all damages allowable under law.

COUNT SIX
SLANDER OF TITLE

58. Defendants reallege all paragraphs as if set out here in full.
59. The LPP, in filing a foreclosure deed (which is void) have caused a cloud to be placed on the title of the property of Defendants.
60. As the proximate cause of LPP’s slandering of Defendants’ title, Defendants were caused to suffer injuries and damages and claims all damages allowable under law.

COUNT SEVEN
BREACH OF CONTRACT

61. Defendants reallege all paragraphs as if set out here in full.
62. The LPP breached the contract with Defendants and thereby caused Defendants incidental and consequential damages (including mental anguish).
63. Defendants claim all damages allowable under law.

COUNT EIGHT
FRAUD

64. Defendants reallege all paragraphs as if set out here in full.
65. Shortly before the foreclosure, LPP committed misrepresentations and suppressions against Defendants in that LPP told Defendants that the foreclosure would not occur as Defendants were in the process of a loan modification.
66. At the time of the fraud LPP had no intention of honoring their representation.
67. The LPP suppressed from Defendants the truth that it intended to foreclose on Defendants on May 25, 2010.
68. All misrepresentations, and suppressions of these material facts were made intentionally, recklessly, and/or negligently.
69. Defendants properly relied upon the misrepresentations and suppressions of the LPP and were damaged thereby.
70. Defendants could have taken steps to prevent the foreclosure (including filing bankruptcy or curing any alleged default) but Defendants were prevented from doing so by the misrepresentation and suppression of the LPP as it was not until after the foreclosure sale that Defendants knew they had been deceived.
71. This was the purpose and design of this common type of fraud in the mortgage industry – lie about the fact that the foreclosure will not occur so the borrower and homeowners will rely upon the fraud.
72. When there is reliance, then the homeowners will be lulled into a sense of safety by the abusive LPP and the homeowners will not take any further action as they believed that the LPP was reviewing the modification request and was not going to foreclose – precisely what the LPP intended the homeowners to believe.
73. It is proper and appropriate for homeowners to believe LPP when these types of misrepresentations and suppressions of material fact are made – who would know better than the LPP whether or not the foreclosure was going to happen?
74. No one else in the world would know better than the LPP the truth of whether or not they were going to foreclose.
75. All misrepresentations, and suppressions of these material facts were made intentionally, recklessly, and/or negligently.
76. The purpose and intent was to cause Defendants to be in a position where they could not save their home which is exactly what happened.
77. Defendants properly relied upon the misrepresentations and suppressions of the LPP and were damaged thereby.
78. Defendants claim all damages allowable under law.

COUNT NINE
NEGLIGENT AND/OR WANTON HIRING, SUPERVISION, AND/OR TRAINING

79. Defendants reallege all paragraphs as if set out here in full.
80. The LPP hired, supervised, and/or trained incompetent agents or employees who committed some or all of the wrongful acts set forth in this Answer and Counterclaim.
81. The LPP knew or should have known of the incompetence of these agents or employees.
82. The LPP was negligent or reckless in their hiring, supervision, and/or training which led as a direct and proximate result to the damages suffered by Defendants.
83. Defendants claim all damages allowable under law.

COUNT TEN
INTENTIONAL AND/OR MALICIOUS CONDUCT

84. Defendants reallege all paragraphs as if set out here in full.
85. All actions of the LPP were made intentionally and/or malicious and led to the damages of Defendants as a direct proximate result.
86. Defendants claim all damages allowable under law.

COUNT ELEVEN
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. § 1692 et seq.

87. Defendants incorporate by reference all of the above paragraphs of this Complaint as though fully stated herein.
88. The acts and omissions of LPP and its agents constitute numerous and multiple violations of the FDCPA with respect to Defendants.
89. As a result of the violations of the FDCPA, Defendants are entitled to actual damages pursuant to 15 U.S.C. § 1692k(a)(1); statutory damages in an amount up to $1,000.00 pursuant to 15 U.S.C. § 1692k(a)(2)(A); (2) actual and compensatory damages; and, (3) reasonable attorney’s fees and costs pursuant to 15 U.S.C. § 1692k(a)(3), from the LPP.

COUNT TWELVE
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION

90. Defendants reallege all paragraphs as if set out here in full.
91. Alabama law recognizes Defendants’ right to be free from invasions of privacy and LPP violated Alabama state law as described in this Complaint.
92. Congress explicitly recognized a consumer’s inherent right to privacy in collection matters in passing the Fair Debt Collection Practices Act, when it stated as part of its findings:
Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.

15 U.S.C. § 1692(a) (emphasis added).
93. Congress further recognized a consumer’s right to privacy in financial data in passing the Gramm Leech Bliley Act, which regulates the privacy of consumer financial data for a broad range of “financial institutions” including debt collectors (albeit without a private right of action), when it stated as part of its purposes:
It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ nonpublic personal information.

15 U.S.C. § 6801(a) (emphasis added).
94. LPP and/or its agents intentionally, recklessly, and/or negligently interfered, physically or otherwise, with the solitude, seclusion and or private concerns or affairs of the Defendants, namely, by repeatedly and unlawfully attempting to collect a debt and thereby invaded Defendants’ privacy.
95. LPP and its agents intentionally, recklessly, and/or negligently caused emotional harm to Defendants by engaging in highly offensive conduct in the course of collecting this debt, thereby invading and intruding upon Defendants’ right to privacy.
96. Defendants had a reasonable expectation of privacy in Defendants’ solitude, seclusion, private concerns or affairs, and private financial information.
97. The conduct of LPP and its agents, in engaging in the above-described illegal collection conduct against Defendants, resulted in multiple intrusions and invasions of privacy by the LPP which occurred in a way that would be highly offensive to a reasonable person in that position.
98. As a result of such intrusions and invasions of privacy, Defendants are entitled to actual damages in an amount to be determined at trial from LPP.
99. All acts of LPP and its agents and/or employees were committed with malice, intent, wantonness, and/or recklessness and as such LPP is subject to punitive damages.

RELIEF REQUESTED

WHEREFORE, Defendants having set forth their claims for relief against the LPP, respectfully pray of the Court as follows:
a. That Defendants have and recover against the LPP a sum to be determined by a jury of their peers in the form of actual damages;
b. That Defendants have and recover against the LPP a sum to be determined by a jury of their peers in the form of punitive damages;
c. That Defendants have and recover against the LPP a sum to be determined by a jury of their peers in the form of statutory damages;
d. That Defendants have reasonable attorney’s fees, costs, expenses;
e. That the foreclosure sale be set aside; and
f. That Defendants have such other and further and proper relief as the Court may deem just and proper.



Respectfully Submitted,

/s/ John G. Watts
John G. Watts (WAT056)
Attorney for Defendants

OF COUNSEL:
Watts Law Group, PC
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 879-2447
(888) 522-7167 facsimile
john@wattslawgroup.com

/s/ M. Stan Herring
M. Stan Herring (HER037)
Attorney for Defendants

OF COUNSEL:
M. Stan Herring, P.C.
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 714-4443
(888) 522-7167 facsimile
msh@mstanherringlaw.com


DEFENDANTS DEMAND A TRIAL BY JURY

November 7, 2010

Alabama Case Filings - TCPA Violations Alleged Against Santander (Auto Finance Company)

We have talked extensively about the problem of companies, particularly car finance companies, violating the Telephone Consumer Protection Act (TCPA) by using autodialers or computer dialers and using pre-recorded messages against consumer's cell phones illegally.

If you never gave permission to the auto finance company (GMAC, Nuvell, GMAC, Capital One Auto, Santander (Drive Financial), etc) then there is no excuse for them calling your cell phone with a robo-dialer or autodialer or using a pre-recorded message. This normally violates the law including the TCPA.

If you gave permission, you can always revoke it. We suggest doing this by a written letter sent certified mail, return receipt requested. Calls after that may be illegal if they are from a computer dialer (auto dialer or predictive dialer) or contain pre-recorded messages.

Here are the allegations of an Alabama consumer related to a suit filed against Santander in which the consumer claims Santander violated laws including the TCPA:


COMPLAINT

COMES NOW the Plaintiff, by and through counsel, in the above styled cause, and for Plaintiff’s Complaint against the Santanders states as follows:
1. This action arises out of Santander’s repeated violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA ”), out of state law violations and out of the invasions of Plaintiff’s personal and financial privacy by the Santander and its agents in their illegal efforts to collect a consumer debt of Plaintiff’s wife, Vanessa Brooks, from Plaintiff who does not owe Santander.

PARTIES

2. Plaintiff is a natural person who is a resident of Alabama.
3. Santander Santander Consumer USA, Inc., (“Santander” or “Santander”) is a foreign debt collection firm that engages in the business of debt collection. It conducts business in Alabama. Its principal place of business is the State of Texas and it is incorporated in Illinois.

FACTUAL ALLEGATIONS

4. Plaintiff’s wife allegedly incurred a financial obligation (car loan) that was primarily for personal, family or household purposes and is therefore a “debt” as that term is defined by 15 U.S.C. § 1692a(5).
5. Plaintiff does not owe this debt.
6. Santander made a large number of harassing and repeated phone calls to Plaintiff’s cell phone.
7. Santander refuses to stop calling and in particular using illegal pre-recorded messages.
8. Santander refuses to stop calling and in particular to stop using auto dialers.
9. Santander refuses to stop calling and in particular to stop using predictive dialers.
10. Santander illegally used an autodialer to call Plaintiff’s cell phone without permission to do so in violation of the Telephone Consumer Protection Act (TCPA).
11. Santander illegally used a predictive dialer to call Plaintiff’s cell phone without permission to do so in violation of the Telephone Consumer Protection Act (TCPA).
12. Santander illegally used pre-recorded calls to call Plaintiff’s cell phone without permission to do so in violation of the Telephone Consumer Protection Act (TCPA).
13. Plaintiff never gave Santander permission to call Plaintiff’s cell phone with an autodialer.
14. Plaintiff never gave Santander permission to call Plaintiff’s cell phone with a predictive dialer.
15. Plaintiff never gave Santander permission to call Plaintiff’s cell phone with pre-recorded calls.
16. Plaintiff even told Santander not to call his cell phone but Santander continued to do so in violation of the law and told Plaintiff they were going to continue to call Plaintiff.
17. The volume and type of calls are harassing as the intent and motive behind them is to harass Plaintiff into paying Santander a debt which Plaintiff does not owe.

SUMMARY

18. All of the above-described collection communications made to Plaintiff by Santander and collection agents of Santander was made in violation of the TCPA.
19. The above-detailed conduct by this Santander of harassing Plaintiff in an effort to collect this debt was also an invasion of Plaintiff’s privacy by an intrusion upon seclusion and resulted in actual damages to the Plaintiff.
20. This series of abusive collection calls by Santander and its agents caused Plaintiff stress and anguish as a result of these abusive calls.
21. Santander’s repeated attempts to collect this debt from Plaintiff and refusal to stop violating the law was an invasion of Plaintiff’s privacy and Plaintiff’s right to be left alone.
22. Plaintiff has suffered actual damages as a result of these illegal collection communications by this Santander in the form of anger, anxiety, emotional distress, fear, frustration, damage to reputation, upset, humiliation, embarrassment, amongst other negative emotions, as well as suffering from unjustified and abusive invasions of personal privacy, which was due to the illegal conduct of Santander.

RESPONDEAT SUPERIOR LIABILITY

23. The acts and omissions of Santander’s agents who communicated with Plaintiff as more further described herein, were committed within the line and scope of their agency relationship with their principal the Santander.
24. The acts and omissions by these other debt collectors were incidental to, or of the same general nature as, the responsibilities these agents were authorized to perform by Santander in collecting consumer debts.
25. By committing these acts and omissions against Plaintiff, these other debt collectors were motivated to benefit their principal the Santander.
26. Santander is therefore liable to Plaintiff through the doctrine of Respondeat Superior for the wrongful, intentional, reckless, and negligent acts, errors, and omissions done in violation of state and federal law by its collection employees, including but not limited to violations of the TCPA and Alabama tort law, in their attempts to collect this debt from Plaintiff.

NEGLIGENT AND WANTON HIRING AND SUPERVISION

27. Santander negligently and/or wantonly hired, retained, or supervised incompetent debt collectors and are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.

CAUSES OF ACTION

COUNT I.
VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT (TCPA)
(47 U.S.C. § 227)

28. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
29. Santander has repeatedly violated the TCPA by the calls made to Plaintiff, specifically the numerous calls by illegal automatic dialers that have been unleashed against Plaintiff by Santander.
30. Santander has repeatedly violated the TCPA by the calls made to Plaintiff, specifically the numerous calls by illegal predictive dialers that have been unleashed against Plaintiff by Santander.
31. Santander has repeatedly violated the TCPA by the calls made to Plaintiff, specifically the numerous calls by illegal pre-recorded messages that have been unleashed against Plaintiff by Santander.
32. There is no exception or justification for the numerous violations of the TCPA by Santander as Plaintiff has not consented to the Santander or to any original creditor to use these against Plaintiff’s cell phone and Plaintiff instructed Santander it had no permission to call his cell phone but the calls continued.
33. Each call is a separate violation and entitles Plaintiff to statutory damages against Santander in the amount of at least $500.00 per call and Plaintiff requests that since the violations were made intentionally or recklessly that the violations be assessed a statutory damage of $1,500.00 per call. 47 U.S.C. § 227(b)(3).
34. All actions taken by Santander were taken with malice, were done willfully, recklessly and/or were done with either the desire to harm Plaintiff and/or with the knowledge that its actions would very likely harm Plaintiff and/or that its actions were taken in violation of the TCPA and/or that knew or should have known that its actions were in reckless disregard of the TCPA.
35. All of the violations of the TCPA proximately caused the injuries and damages set forth in this Complaint.

COUNT II.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION

36. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
37. Alabama law recognizes Plaintiff’s right to be free from invasions of privacy and Santander violated Alabama state law as described in this Complaint.
38. Congress explicitly recognized a consumer’s inherent right to privacy in collection matters in passing the Fair Debt Collection Practices Act, when it stated as part of its findings:
Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.

15 U.S.C. § 1692(a) (emphasis added).
39. Congress further recognized a consumer’s right to privacy in financial data in passing the Gramm Leech Bliley Act, which regulates the privacy of consumer financial data for a broad range of “financial institutions” including debt collectors (albeit without a private right of action), when it stated as part of its purposes:
It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ nonpublic personal information.

15 U.S.C. § 6801(a) (emphasis added).
40. Santander and/or its agents intentionally, recklessly, and/or negligently interfered, physically or otherwise, with the solitude, seclusion and or private concerns or affairs of the Plaintiff, namely, by repeatedly and unlawfully attempting to collect a debt and thereby invaded Plaintiff’s privacy.
41. Santander and its agents intentionally, recklessly, and/or negligently caused emotional harm to Plaintiff by engaging in highly offensive conduct in the course of collecting this debt, thereby invading and intruding upon Plaintiff’s right to privacy.
42. Plaintiff had a reasonable expectation of privacy in Plaintiff’s solitude, seclusion, private concerns or affairs, and private financial information.
43. The conduct of this Santander and its agents, in engaging in the above-described illegal collection conduct against Plaintiff, resulted in multiple intrusions and invasions of privacy by this Santander which occurred in a way that would be highly offensive to a reasonable person in that position.
44. As a result of such intrusions and invasions of privacy, Plaintiff is entitled to actual damages in an amount to be determined at trial from Santander.
45. All acts of Santander and its agents and/or employees were committed with malice, intent, wantonness, and/or recklessness and as such Santander is subject to punitive damages.

COUNT III.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS

46. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
47. Santander negligently, wantonly, and/or intentionally hired, retained, or supervised incompetent debt collectors, who were allowed or encouraged to violate the law as was done to Plaintiff, and are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.

COUNT IV
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT

48. All paragraphs of this Complaint are expressly adopted and incorporated herein as if fully set forth herein.
49. Santander acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
50. Santander violated all of the duties Santander had and such violations were made intentionally, willfully, recklessly, maliciously, wantonly, and negligently.
51. It was foreseeable, and Santander did in fact foresee it, the actions of the Santander would lead and did lead to the exact type of harm suffered by Plaintiff.
52. Santander acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
53. Santander invaded the privacy of Plaintiff as set forth in Alabama law.
54. Such negligence, malice, wantonness, recklessness, willfulness, and/or intentional conduct proximately caused the damages set forth in this complaint.
55. As a result of this conduct, action, and inaction of Santander, Plaintiff has suffered damage as set forth in this Complaint.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that judgment be entered against Santander:

COUNT I.
TCPA

• for an award of actual damages from Santander for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent TCPA violations in an amount to be determined at trial for Plaintiff;
• statutory damages of $500.00 or $1,500.00 per call; and
• for such other and further relief as may be just and proper.

COUNT II.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION

• for an award of actual damages from Santander for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent state law violations in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.

COUNT III.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS

• for an award of actual damages from Santander for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.

COUNT IV.
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT

• for an award of actual damages from Santander for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damages; and
• for such other and further relief as may be just and proper.

Respectfully Submitted,

/s/ John G. Watts
John G. Watts (WAT056)
Attorney for Plaintiff

OF COUNSEL:
Watts Law Group, PC
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 879-2447
(888) 522-7167 facsimile
john@wattslawgroup.com

/s/ M. Stan Herring
M. Stan Herring (HER037)
Attorney for Plaintiff

OF COUNSEL:
M. Stan Herring, P.C.
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 714-4443
(888) 522-7167 facsimile
msh@mstanherringlaw.com

PLAINTIFF DEMANDS A TRIAL BY JURY IN THIS CAUSE.

/s/ John G. Watts
Attorney for Plaintiff

Serve Santander via certified mail at the following address:

Santander Consumer USA, Inc.
c/o CT Corporation System
2 North Jackson Street, Suite 605
Montgomery, Alabama 36104


November 5, 2010

Alabama Case Filings - Illegal Debt Collection By Bank Of America After Bankruptcy Discharge Of Home Loan

Bankruptcy is a legitimate option for many Alabama consumers but what do you do when after you have received a discharge (meaning you don't owe the debt anymore) the mortgage company -- such as Bank of Americar (BAC Home Loan Servicing) -- continues to call and write to collect on a debt that does not exist anymore?

What do you do after you tell the company to not bother you -- to not call you on your cell phone with an illegal autodialer, to not write you anymore?

When the mortgage company -- whether Chase, GMAC, Litton Loan, PHH, LPP, Wells Fargo, Bank of America, etc -- won't stop breaking the law then one way to get them to stop is to sue them.

We have copied the allegations from a lawsuit we filed against Bank of America (BAC Home Loan Servicing) on this subject to give you an idea of some options you have when dealing with this type of company violating the law in this way.

COMPLAINT

COMES NOW the Plaintiff, by and through counsel, in the above styled cause, and for Plaintiff’s Complaint against the BAC states as follows:
1. This action arises out of BAC’s repeated violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA ”) and out of the invasions of Plaintiff’s personal and financial privacy by the BAC and its agents in their illegal efforts to collect a non-existent debt from Plaintiff.

PARTIES

2. Plaintiff is a natural person who is a resident of Alabama.
3. BAC BAC Home Loans Servicing, LP, (“BAC” or “BAC”) is a foreign debt collection firm that engages in the business of debt collection.

FACTUAL ALLEGATIONS

4. Supposedly, BAC purchased or was assigned or otherwise was collecting an alleged debt of Plaintiff and began harassing collection activities against Plaintiff.
5. Plaintiff does not owe this alleged debt.
6. Plaintiff filed bankruptcy and the alleged debt was discharged.
7. Discharged debt cannot be collected on and BAC is in violation of the federal court discharge order by its illegal and intentional collection activities including collection letters and calls.
8. There was no basis or authority for BAC to call and collect this discharged debt from Plaintiff.
9. Plaintiff told BAC the debt was discharged and to leave him alone.
10. BAC told Plaintiff they did not care that Plaintiff’s debt was discharged as BAC was going to collect the debt regardless.
11. Plaintiff told BAC not to call him.
12. BAC refuses to stop calling Plaintiff on a debt he does not owe.
13. BAC made harassing and repeated phone calls to Plaintiff.
14. BAC has no right to make calls to Plaintiff regarding the alleged debt as Plaintiff does not owe the debt.
15. BAC has no right to make calls to Plaintiff as BAC has no relationship with Plaintiff.
16. Plaintiff has not given consent to BAC to contact Plaintiff.
17. Any consent that might have been given was revoked by the discharge and by Plaintiff telling BAC not to call Plaintiff.
18. BAC refuses to stop calling Plaintiff’s cell phone and in particular using illegal pre-recorded messages.
19. BAC refuses to stop calling Plaintiff’s cell phone and in particular to stop using auto dialers.
20. BAC refuses to stop calling Plaintiff’s cell phone and in particular to stop using predictive dialers.
21. BAC illegally used an autodialer to call Plaintiff’s cell phone without permission to do so in violation of the Telephone Consumer Protection Act (TCPA).
22. BAC illegally used a predictive dialer to call Plaintiff’s cell phone without permission to do so in violation of the Telephone Consumer Protection Act (TCPA).
23. BAC illegally used pre-recorded calls to call Plaintiff’s cell phone without permission to do so in violation of the Telephone Consumer Protection Act (TCPA).
24. The volume and type of calls are harassing as the intent and motive behind them is to harass Plaintiff into paying BAC.

SUMMARY

25. All of the above-described collection communications made to Plaintiff by BAC and collection agents of BAC were made in violation of the TCPA and state law.
26. The above-detailed conduct by this BAC of harassing Plaintiff in an effort to collect this debt was also an invasion of Plaintiff’s privacy by an intrusion upon seclusion and resulted in actual damages to the Plaintiff.
27. This series of abusive collection calls by BAC and its agents caused Plaintiff stress and anguish as a result of these abusive calls.
28. BAC’s repeated attempts to collect this debt from Plaintiff and refusal to stop violating the law was an invasion of Plaintiff’s privacy and Plaintiff’s right to be left alone.
29. Plaintiff has suffered actual damages as a result of these illegal collection communications by this BAC in the form of anger, anxiety, emotional distress, fear, frustration, upset, humiliation, embarrassment, amongst other negative emotions, as well as suffering from unjustified and abusive invasions of personal privacy.

NEGLIGENT AND WANTON HIRING AND SUPERVISION

30. BAC negligently and/or wantonly hired, retained, or supervised incompetent collectors and is thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.

CAUSES OF ACTION

COUNT I.
VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT (TCPA)
(47 U.S.C. § 227)

31. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
32. BAC has repeatedly violated the TCPA by the calls made to Plaintiff’s cell phone, specifically the numerous calls by illegal automatic dialers, predictive dialers, and/or pre-recorded messages that have been unleashed against Plaintiff by BAC.
33. There is no exception or justification for the numerous violations of the TCPA by BAC as Plaintiff has not consented to the BAC to use these against Plaintiff’s cell phone.
34. Each call is a separate violation and entitles Plaintiff to statutory damages against BAC in the amount of at least $500.00 per call and Plaintiff requests that since the violations were made intentionally or recklessly that the violations be assessed a statutory damage of $1,500.00 per call. 47 U.S.C. § 227(b)(3).
35. All actions taken by BAC were taken with malice, were done willfully, recklessly and/or were done with either the desire to harm Plaintiff and/or with the knowledge that its actions would very likely harm Plaintiff and/or that its actions were taken in violation of the TCPA and/or that knew or should have known that its actions were in reckless disregard of the TCPA.
36. All of the violations of the TCPA proximately caused the injuries and damages set forth in this Complaint.

COUNT II.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION

37. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
38. Alabama law recognizes Plaintiff’s right to be free from invasions of privacy and BAC violated Alabama state law as described in this Complaint.
39. BAC and/or its agents intentionally, recklessly, and/or negligently interfered, physically or otherwise, with the solitude, seclusion and or private concerns or affairs of the Plaintiff, namely, by repeatedly and unlawfully attempting to collect a debt and thereby invaded Plaintiff’s privacy.
40. BAC and its agents intentionally, recklessly, and/or negligently caused emotional harm to Plaintiff by engaging in highly offensive conduct in the course of collecting this debt, thereby invading and intruding upon Plaintiff’s right to privacy.
41. Plaintiff had a reasonable expectation of privacy in Plaintiff’s solitude, seclusion, private concerns or affairs, and private financial information.
42. The conduct of this BAC and its agents, in engaging in the above-described illegal collection conduct against Plaintiff, resulted in multiple intrusions and invasions of privacy by this BAC which occurred in a way that would be highly offensive to a reasonable person in that position.
43. As a result of such intrusions and invasions of privacy, Plaintiff is entitled to actual damages in an amount to be determined at trial from BAC.
44. All acts of BAC and its agents and/or employees were committed with malice, intent, wantonness, and/or recklessness and as such BAC is subject to punitive damages.

COUNT III.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS

45. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
46. BAC negligently, wantonly, and/or intentionally hired, retained, or supervised incompetent debt collectors, who were allowed or encouraged to violate the law as was done to Plaintiff, and is thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.

COUNT IV
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT

47. All paragraphs of this Complaint are expressly adopted and incorporated herein as if fully set forth herein.
48. BAC acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
49. BAC violated all of the duties BAC had and such violations were made intentionally, willfully, recklessly, maliciously, wantonly, and negligently.
50. It was foreseeable, and BAC did in fact foresee it, the actions of the BAC would lead and did lead to the exact type of harm suffered by Plaintiff.
51. BAC acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
52. BAC invaded the privacy of Plaintiff as set forth in Alabama law.
53. Such negligence, malice, wantonness, recklessness, willfulness, and/or intentional conduct proximately caused the damages set forth in this complaint.
54. As a result of this conduct, action, and inaction of BAC, Plaintiff has suffered damage as set forth in this Complaint.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that judgment be entered against BAC:

COUNT I.
TCPA

• for an award of actual damages from BAC for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent TCPA violations in an amount to be determined at trial for Plaintiff;
• statutory damages of $500.00 or $1,500.00 per call; and
• for such other and further relief as may be just and proper.

COUNT II.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION

• for an award of actual damages from BACs for all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent TCPA violations and intentional, reckless, and/or negligent state law violations in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.

COUNT III.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT COLLECTORS

• for an award of actual damages from BACs for all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent TCPA violations, intentional, reckless, and/or negligent hiring and supervision of incompetent debt collectors intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.

COUNT IV.
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT

• for an award of actual damages from BAC for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damages; and
• for such other and further relief as may be just and proper.
Respectfully Submitted,

/s/ John G. Watts
John G. Watts (WAT056)
Attorney for Plaintiff

OF COUNSEL:
Watts Law Group, PC
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 879-2447
(888) 522-7167 facsimile
john@wattslawgroup.com

/s/ M. Stan Herring
M. Stan Herring (HER037)
Attorney for Plaintiff

OF COUNSEL:
M. Stan Herring, P.C.
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 714-4443
(888) 522-7167 facsimile
msh@mstanherringlaw.com


PLAINTIFF DEMANDS A TRIAL BY JURY IN THIS CAUSE.

/s/ John G. Watts
Attorney for Plaintiff

Serve BAC via certified mail at the following address:

BAC Home Loans Servicing, LP.
c/o CT Corporation System
1200 South Pine Island Road
Plantation, Florida 33324

July 2, 2010

Lawyer's Use of Letterhead Leads To Lawsuit

The Legal Intelligencer has posted an interesting article about a recent Pennsylvania ruling that says lawyers cannot use their own firm's letterheads when sending out collection letters unless the lawyer has reviewed the file and is prepared to file a lawsuit.

U.S. Magistrate Judge Andrew J. Smyser ruled that two letters from a New York lawyer amounted to clear violations of the Fair Debt Collection Practices Act because the use of law firm letterhead gave the false impression that a lawyer was working on the case and planning to sue.

"The least sophisticated consumer would be likely to believe upon receiving a communication from an attorney for the lender that the debt collection process has entered into a phase where the lender through its attorney will begin to use procedures established by law and known to attorneys to collect the debt," Smyser wrote in his 22-page opinion in Lesher v. Law Offices of Mitchell N. Kay .

Symser argues that a lawyer's letterhead automatically implies a threat of litigation since it is communication from an attorney. However, he also says that just because the letter had an attorney's letterhead then it automatically didn't violate the FDCPA because it contained the following sentence: "At this point in time, no attorney with this firm has personally reviewed the particular circumstances of your account." Because of that statement, Symser feels that it is clear that the letter didn't give the impression of impending legal action.

The suit alleged that the use of law firm letterhead to collect consumer debts — when there has not been attorney involvement or attorney review before collection letters are sent to consumers — is a violation of Section 1692e(3) and (5).

It also alleged a violation of Section 1692g on the grounds that Kay's collection letter created a false sense of heightened urgency and intimidation, and that there had not been a meaningful review of the plaintiff's account.

In court, the plaintiff's, Darwin Lesher, case is based on...

the notion that no matter how innocuous or benign the substance of the letter, an implied threat of litigation will exist because the letter came from an attorney. Plaintiff provides this court with no legal support for this proposition, and ... fails to point to anything in the substance of either of the defendant's letters which would violate Section 1692e(5) by suggesting such a threat,"

The defendant argued that the plaintiff was making too big of a deal about the use of a letterhead and ignoring the overall communication process between the lawyer and the recipient of the letter.

In the final ruling, Symser concluded that:

The use of law firm letterhead created a deceptive meaning.

"Although an attorney may be acting solely in the capacity of a debt collector and may not be communicating any explicit representation of a future course of action, when the attorney acting as a debt collector uses law firm letterhead the attorney acting as a debt collector plainly is communicating to the debtor in his or her capacity as an attorney," Smyser wrote.

"Therefore, since it is an attorney's communication, the implication is not avoidable that a threat of litigation is being presented to the debtor," Smyser wrote.

If you have had issues with attorneys seeking collections, feel free to contact us through our website or by calling 205-879-2447.

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