Francis Mailman Soumilas, P.C.

New Jersey Complaint Against Cawley & Bergmann LLP. for Harassment and Abuse of Consumer Debt

Jordan Sartell

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

John Doe

 

          Plaintiff,

 

v.

 

CAWLEY & BERGMANN LLP.

 

          Defendant.

 

 

Civil Action No.

 

Complaint

 

  1. This is an action for damages brought by an individual consumer for Defendant’s violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (hereafter the “FDCPA”), and other common law claims.  The laws prohibit debt collectors from engaging in abusive, deceptive, and unfair collection practices.

JURISDICTION AND VENUE

 

  1. Jurisdiction of this Court arises under 15 U.S.C. § 1692k(d), 28 U.S.C. § 1331, 1337, and supplemental jurisdiction exists for the state law claims pursuant to 28 U.S.C. § 1367.
  2. Venue lies in this district pursuant to 28 U.S.C. § 1391(b).

 

 

PARTIES

 

  1. Plaintiff  is an adult individual residing in New Jersey  .
  2. Defendant Cawley & Bergmann LLP. is a business entity with its principal office located at 415 Lawrence Bell Drive, Suite A, Williamsville, New York 14221.  The principal purpose of Defendant is the collection of debts already in default using the mails and telephone, and Defendant regularly attempts to collect said debts.

FACTUAL ALLEGATIONS

 

  1. At all pertinent times hereto, Defendant was hired to collect a debt relating to a debt originally owed by a “Joe Doe” (hereafter the “debt”).
  2. The alleged debt at issue arose out of a transaction which was primarily for personal, family or household purposes.
  3. On or about May 9, 2011, Defendant contacted Plaintiff at his place of residence in an attempt to collect the debt. During this telephone conversation, Plaintiff advised Defendant that he was not John Doe  and that JohnDoe did not live at his phone number. Additionally, Plaintiff asked Defendant to cease contacting him.
  4. Notwithstanding the above, on or about May 10, 2011, Defendant Plaintiff at his place of residence using an automated dialing system with an automated prerecorded voice in an attempt to collect the debt with the intent to annoy, abuse and harass Plaintiff.
  5. Notwithstanding the above, on or about May 12, 2011, Defendant Plaintiff at his place of residence using an automated dialing system with an automated, prerecorded voice in an attempt to collect the debt with the intent to annoy, abuse and harass Plaintiff.
  6. Notwithstanding the above, on or about May 17, 2011, Defendant Plaintiff at his place of residence using an automated dialing system with an automated prerecorded voice in an attempt to collect the debt with the intent to annoy, abuse and harass Plaintiff.
  7. Notwithstanding the above, on or about May 23, 2011, Defendant Plaintiff at his place of residence using an automated dialing system with an automated prerecorded voice in an attempt to collect the debt with the intent to annoy, abuse and harass Plaintiff.
  8. Notwithstanding the above, on or about May 25, 2011, Defendant Plaintiff at his place of residence using an automated dialing system with an automated prerecorded voice in an attempt to collect the debt with the intent to annoy, abuse and harass Plaintiff.
  9. Notwithstanding the above, on or about June 8, 2011, Defendant Plaintiff at his place of residence using an automated dialing system with an automated prerecorded voice in an attempt to collect the debt with the intent to annoy, abuse and harass Plaintiff.
  10. Notwithstanding the above, on or about June 17, 2011, Defendant Plaintiff at his place of residence using an automated dialing system with an automated prerecorded voice in an attempt to collect the debt with the intent to annoy, abuse and harass Plaintiff.
  11. Notwithstanding the above, on or about June 29, 2011, Defendant Plaintiff at his place of residence using an automated dialing system with an automated prerecorded voice in an attempt to collect the debt with the intent to annoy, abuse and harass Plaintiff.
  12. Notwithstanding the above, on or about June 30, 2011, Defendant Plaintiff at his place of residence using an automated dialing system with an automated prerecorded voice in an attempt to collect the debt with the intent to annoy, abuse and harass Plaintiff.
  13. Defendant acted in a false, deceptive, misleading and unfair manner by communicating with any person other than the consumer on more than one occasion.
  14. Defendant acted in a false, deceptive, misleading and unfair manner by communicating with any person other than the consumer for the purpose of acquiring anything other than location information about the consumer.
  15. Defendant acted in a false, deceptive, misleading and unfair manner by communicating with any person other than the consumer in connection with the collection of a debt.
  16. Defendant acted in a false, deceptive, misleading and unfair manner by engaging in conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.
  17. Defendant acted in a false, deceptive, misleading, and unfair manner by causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.
  18. Defendant acted in a false, deceptive, misleading and unfair manner by engaging in false representation or deceptive means to collect or attempt to collect any debt.
  19. Defendant knew or should have known that their actions violated the FDCPA. Additionally, Defendant could have taken the steps necessary to bring their agent’s actions within compliance of these statutes, but neglected to do so and failed to adequately review those actions to insure compliance with said laws.
  20. At all times pertinent hereto, Defendant was acting by and through its agents, servants and/or employees, who were acting within the scope and course of their employment, and under the direct supervision and control of the Defendant herein.
  21. At all times pertinent hereto, the conduct of Defendant as well as its agents, servants and/or employees, was malicious, intentional, willful, reckless, negligent and in wanton disregard for federal and state law and the rights of the Plaintiff herein.
  22. As a result of Defendant’s conduct, Plaintiff has sustained actual damages, including, but not limited to injury to Plaintiff’s reputation, invasion of privacy, damage to Plaintiff’s credit, out-of-pocket expenses, emotional and mental pain and anguish, embarrassment, humiliation, damage to reputation and pecuniary loss and he will continue to suffer same for an indefinite time in the future, all to her great detriment and loss.

Count I – Violations of the FDCPA

 

  1. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein.
  2. Defendant is a “debt collector” as defined by 15 U.S.C. § 1692a(6) of the FDCPA.
  3. Plaintiff is a “consumer” as defined by 15 U.S.C. § 1692a(3) of the FDCPA.
  4. The above contacts between Defendant and Plaintiff were “communications” relating to a “debt” as defined by 15 U.S.C. § 1692a(2) and 1692a(5) of the FDCPA.
  5. Defendant violated the FDCPA.  Defendant’s violations include, but are not limited to, violations of 15 U.S.C. §§ 1692b(1), 1692b(3),  1693d, 1692d(5), 1692e(10), and 1692f, as evidenced by the following conduct:

(a)                Communicating with any person other than the consumer for the purpose of acquiring anything other than location information;

(b)               Communicating with a non-debtor on more than one occasion;

(c)                Engaging in conduct the natural consequence of which is to harass, oppress or abuse any person in connection with the collection of a debt;

(d)               Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with the intent to annoy, abuse, or harass any person at the called number; and

(e)                Otherwise using false, deceptive, misleading and unfair or unconscionable means to collect or attempt to collect the alleged debt from Plaintiff.

  1. Defendant’s acts as described above were done with malicious, intentional, willful, reckless, wanton and negligent disregard for Plaintiff’s rights under the law and with the purpose of coercing Plaintiff to pay the alleged debt.
  2. As a result of the above violations of the FDCPA, Defendant is liable to Plaintiff in the sum of Plaintiff’s statutory damages, actual damages and attorney’s fees and costs.

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

(a)        That judgment be entered against Defendant for statutory damages pursuant to 15 U.S.C. § 1692k(a)(1);

(b)         That judgment be entered against Defendant for actual damages pursuant to 15 U.S.C. § 1692k(a)(2)(A);

(c)        That the Court award costs and reasonable attorney’s fees pursuant to 15 U.S.C. § 1692k(a)(3); and

(d)     That the Court grant such other and further relief as may be just and proper.

COUNT II – VIOLATION OF THE TCPA

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

 

36.       Defendant made multiple automated telephone calls using a prerecorded voice to Plaintiff concerning a debt that Plaintiff does not owe, even after Defendant was clearly and advised by Plaintiff that he did not owe the debt.

37.       Defendant initiated these automated calls to Plaintiff using an automated telephone dialing system that had the capacity to store or produce telephone numbers using random or sequential number generation.

38.       Defendant violated the TCPA.  Defendant’s violations include, but are not limited to, violations of 47 U.S.C. § 227(b)(1)(B), 47 U.S.C. § 227(b)(1)(iii), 47 U.S.C. § 227(d)(1)(A) and 47 C.F.R.§ 64.1200 et seq. as evidenced by the following conduct:

(a)        initiating telephone calls to Plaintiff’s residential telephone line using artificial or prerecorded voices to deliver messages without Plaintiff’s consent;

(b)        initiating telephone calls to Plaintiff’s cellular telephone line using artificial or prerecorded voices to deliver messages without Plaintiff’s consent; and

(c)        initiating telephone calls to Plaintiff using an automated telephone dialing system that was not in compliance with the technical and procedural standards prescribed by the TCPA.

39.       Defendant’s acts as described above were done with malicious, intentional, willful, reckless, wanton and negligent disregard for Plaintiff’s rights under the law and with the purpose of coercing Plaintiff to pay the debt.

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

41.       As a result of the above violations of the TCPA, Plaintiff has suffered the losses and damages as set forth above entitling Plaintiff to an award of statutory, actual and treble damages and attorney’s fees and costs.

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

(a)        An order directing that Defendant immediately cease and desist from          calling Plaintiff using any automated telephone dialing system and any system that uses an automated prerecorded voice pursuant to 47 U.S.C. § 227(b)(3)(A);

(b)        That judgment be entered against Defendant for actual damages pursuant     to 47 U.S.C. § 227(b)(3)(B);

(c)        That judgment be entered against Defendant for statutory damages pursuant to 47 U.S.C. § 227(b)(3)(B);

(d)       That the Court award treble damages for Defendant’s willful and knowing violations of the TCPA pursuant to 47 U.S.C. §227(b)(3); and

(e)        That the Court grant such other and further relief as may be just and proper.

 

COUNT III – Invasion of Privacy

 

  1. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein.
  2. Defendant’s conduct, including but not limited to repeatedly contacting Plaintiff in an attempt to collect a debt after being advised that Plaintiff was not the debtor and that the debtor did not live at Plaintiff’s phone number, constitutes an invasion of privacy.
  3. The conduct of Defendant was a direct and proximate cause, as well as a substantial factor, in bringing about the serious injuries, damages and harm to Plaintiff that are outlined more fully above and, as a result, Defendant is liable to compensate the Plaintiff for the full amount of actual, compensatory and punitive damages, as well as such other relief, permitted under the law.

WHEREFORE, Plaintiff claims compensatory, punitive and all other forms of cognizable damages against Defendant and judgment in her favor, plus lawful interest thereon.

JURY TRIAL DEMAND

 

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

DESIGNATION OF TRIAL COUNSEL

Plaintiff hereby designates John Soumilas as trial counsel in the above-captioned matter.  Plaintiff reserves the right to amend this designation as necessary.

 

 

 

 

ARBITRATION CERTIFICATION

            I, Mark D. Mailman, counsel of record do hereby certify pursuant to Local Civil Rule 201.1(d) that relief other than monetary damages is sought and that the damages sought are in excess of $150,000.  I further certify that, to my knowledge, the within case is not the subject of any action, arbitration or administrative hearing now pending in any court.

 

Respectfully Submitted,

 

FRANCIS & MAILMAN, P.C.

 

BY:    /s/ Mark D. Mailman

MARK D. MAILMAN, ESQUIRE

JOHN SOUMILAS, ESQUIRE

GEOFFREY H. BASKERVILLE, ESQUIRE

Land Title Building, 19th Floor

100 South Broad Street

Philadelphia, PA 19110

(215) 735-8600

 

Attorneys for Plaintiff