IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
| Jane Doe Plaintiff, v.
MIDLAND CREDIT MANAGEMENT, INC., MIDLAND FUNDING, LLC, HOWARD LEE SCHIFF, PC, and EQUIFAX INFORMATION SERVICES, LLC.
Defendants.
|
| Civil Action No. |
COMPLAINT
- This is an action for damages brought by an individual consumer against Midland Credit Management, Inc., Midland Funding, LLC, Howard Lee Schiff, P.C., and Equifax Information Services, LLC, for violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681, et seq., as amended, the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. (“FDCPA”), the Rhode Island Deceptive Trade Practices Act, R.I. Gen. Laws §§ 6-13.1, et seq (“DTPA”). and other state law claims. THE PARTIES 2. Plaintiff is an adult individual and citizen of the State of Rhode Island.3. Defendant Midland Credit Management, Inc. and Midland Funding, LLC (collectively “Midland”) are business entities regularly engaged in the business of collecting debts in Rhode Island and have a principal place of business located at 8875 Aero Drive, Suite 200, San Diego CA 92123.4. Defendant Howard Lee Schiff, P.C. (“HLS”) is a business entity which regularly conducts business in Rhode Island and which has a principal place of business at 10 Dorrance Street, Suite 514 Providence, Rhode Island 02903.5. Defendant Equifax Information Services, LLC (“Equifax”) is a business entity which regularly conducts business in Rhode Island and has a principal place of business located at 1550 Peachtree Street NE, Atlanta, Georgia 30309.
JURISDICTION & Venue
6. Jurisdiction of this Court arises under 15 U.S.C. § 1681p, 15 U.S.C. § 1692k(d), 28 U.S.C. § 1331, and supplemental jurisdiction exists for the state law claims pursuant to 28 U.S.C. § 1367.
7. Venue lies properly in this district pursuant to 28 U.S.C. § 1391(b).
FACTUAL ALLEGATIONS
8. At all pertinent times hereto, Defendant Midland was hired to collect a debt relating to a First North American National Bank account (hereafter the “debt”).
9. Midland reported the debt on Plaintiff’s personal credit report with Defendant Equifax, a national credit reporting agency.
10. The debt at issue arises out of a series of transactions which were primarily for personal, family or household purposes.
11. At all times material and relevant hereto, Plaintiff did not owe the debt at issue.
12. The debt negatively reflects upon Plaintiff, Plaintiff’s credit repayment history, Plaintiff’s financial responsibility as a debtor and Plaintiff’s credit worthiness. Defendant Equifax has been reporting the debt through the issuance of false and inaccurate credit information and consumer credit reports that it has disseminated to various persons and credit grantors, both known and unknown.
13. Plaintiff further has disputed the inaccurate information with Defendant Equifax by following Defendants’ established procedure for disputing consumer credit information.
14. Plaintiff has disputed the debt with Defendant Equifax on multiple occasions, including but not limited to from March 2009 through the present.
15. Notwithstanding Plaintiff’s efforts, Defendant Equifax continued to publish and disseminate such inaccurate debt information to other third parties, persons, entities and credit grantors. Defendant Equifax has repeatedly published and disseminated consumer reports to such third parties in 2009 to the present.
16. Despite Plaintiff’s efforts, Defendants Equifax has never: (1) contacted Plaintiff to follow up on, verify and/or elicit more specific information about Plaintiff’s disputes; (2) contacted any third parties that would have relevant information concerning Plaintiff’s disputes; (3) forwarded all relevant information concerning Plaintiff’s disputes to the entities originally furnishing the inaccurate information; (4) requested or obtained any credit applications, or other relevant documents from the entities furnishing the inaccurate information; or (5) performed any handwriting analysis.
17. Notwithstanding Plaintiff’s disputes, Defendant Midland has also failed to conduct timely and reasonable investigations of Plaintiff’s disputes after being contacted by the relevant credit reporting agencies concerning Plaintiff’s disputes, has willfully continued to report such inaccurate information to various credit reporting agencies, and has failed to mark the above debt as disputed at all appropriate times.
18. Despite Plaintiff’s exhaustive efforts to date, Defendants Equifax and Midland have nonetheless deliberately, willfully, intentionally, recklessly and negligently repeatedly failed to perform reasonable reinvestigations and investigations of the above disputes as required by the FCRA, have failed to remove the inaccurate credit information, have failed to note the disputed status of the debt and have continued to report the derogatory inaccurate debt information about Plaintiff.
19. Notwithstanding the above, on or around April 2009, Defendants Midland and HLS, acting as counsel for Midland, caused a lawsuit to be filed against Plaintiff in Rhode Island District Court, Third Division, Docket Number SM-09-1408 (the “lawsuit”), seeking to collect the debt from Plaintiff.
20. Defendants Midland and HLS lacked probable cause to file the lawsuit because these Defendants knew or should have known that Plaintiff was not responsible for the debt.
21. Defendants Midland and HLS filing of the lawsuit served no purpose other than to harass Plaintiff in order to force her to pay a debt that was not her responsibility.
22. Despite Plaintiff’s repeated requests for validation, neither Defendants Midland nor HLS ever provided Plaintiff with any information or documentation showing that Plaintiff was responsible for the debt.
23. Plaintiff was thus forced to hire an attorney to defend herself against the lawsuit.
24. On or about October 2, 2009, Plaintiff’s attorneys secured a dismissal of the matter with prejudice in connection with the lawsuit without objection from Defendant Midland or HLS.
25. Despite the fact that a dismissal with prejudice was entered in the improper collection lawsuit against Plaintiff, Midland did not cease its unlawful collection activity. Rather, Midland continued to call Plaintiff seeking payment and send dunning letters to Plaintiff. By way of example, Plaintiff received a dunning letter from Midland, dated September 24, 2010. Plaintiff also received multiple collection calls from Midland including but not limited to a call received on September 30, 2010.
26. Defendants Midland 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.
27. Defendants Midland acted in a false, deceptive, misleading and unfair manner by misrepresenting the amount, character or legal status of the debt.
28. As a result of Defendants conduct described above, Plaintiff has suffered actual damages in the form of (a) out of pocket expenses, (b) lost credit opportunities, (c) harm to credit reputation and credit score and (d) emotional distress.
29. Defendants knew or should have known that their respective actions violated the FCRA, FDCPA, and state law as set forth below. Additionally, Defendants could have taken steps necessary to bring their and their agents’ actions within compliance with these laws but neglected to do so and failed to adequately review those actions to insure compliance with said laws.
30. At all times pertinent hereto, Defendants were acting by and through their 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 Defendants herein.
31. At all times pertinent hereto, the conduct of Defendants as well as their 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.
COUNT I – EQUIFAX
VIOLATIONS OF THE FCRA
32. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein.
33. At all times pertinent hereto, Defendant was a “person” and “consumer reporting agency” as those terms are defined by 15 U.S.C. § 1681a(b) and (f).
34. At all times pertinent hereto, Plaintiff was a “consumer” as that term is defined by 15 U.S.C. § 1681a(c).
35. At all times pertinent hereto, the above-mentioned credit reports were “consumer reports” as that term is defined by 15 U.S.C. § 1681a(d).
36. Pursuant to 15 U.S.C. §1681n and 15 U.S.C. §1681o, Defendant is liable to the Plaintiff for engaging in the following conduct:
(a) willfully and negligently failing to conduct a proper and reasonable reinvestigation concerning the inaccurate information after receiving notice of the dispute from the Plaintiff, in violation of 15 U.S.C. §1681i(a); and
(b) willfully and negligently failing to employ and follow reasonable procedures to assure maximum possible accuracy of Plaintiff’s credit report, information and file, in violation of 15 U.S.C. §1681e(b);
37. The conduct of Defendant was a direct and proximate cause, as well as a substantial factor, in bringing about the serious injuries, actual damages and harm to the Plaintiff that are outlined more fully above and, as a result, Defendant is liable to the Plaintiff for the full amount of statutory, actual and punitive damages, along with the attorneys’ fees and the costs of litigation, as well as such further relief, as may be permitted by law.
COUNT II – MIDLAND
VIOLATIONS OF THE FCRA
38. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein.
39. At all times pertinent hereto Defendant was a “person” as that term defined by 15 U.S.C. § 1681a(b).
40. Defendant violated sections 1681n and 1681o of the FCRA by engaging in the following conduct:
(a) willfully and negligently failing to conduct an investigation of the inaccurate information that Plaintiff disputed; and
(b) willfully and negligently failing to comply with the requirements imposed on furnishers of information pursuant to 15 U.S.C. §1681s-2(b).
41. Defendant’s conduct was a direct and proximate cause, as well as a substantial factor, in causing the serious injuries, damages and harm to the Plaintiff that are outlined more fully above, and as a result Defendant is liable to compensate Plaintiff for the full amount of statutory, actual and punitive damages, along with attorneys’ fees and costs, as well as such other relief, permitted by law.
COUNT III – MIDLAND
VIOLATIONS OF THE FDCPA
42. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein.
43. Defendant Midland is a “debt collector” as defined by 15 U.S.C. § 1692a(6) of the FDCPA.
44. Plaintiff is a “consumer” as defined by 15 U.S.C. § 1692a(3) of the FDCPA.
45. The above contacts by Defendant were “communications” relating to a “debt” as defined by 15 U.S.C. § 1692a(2) and 1692a(5) of the FDCPA.
46. Defendant violated the FDCPA. Defendant’s violations include, but are not limited to, violations of 15 U.S.C. §§ 1692b(3), 1652c(b), 1692d, 1692e, 1692e(2)(A), 1692e(8), 1692e(10), and 1692f, as evidenced by the following conduct:
(a) Communicating with a non-debtor for information 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) The false representation of the amount, character or legal status of a debt;
(e) Communicating or threatening to communicate credit information which is known to be false; and
(f) Otherwise using false, deceptive, misleading and unfair or unconscionable means to collect or attempt to collect the alleged debt from the Plaintiff.
47. 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.
48. 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.
COUNT IV – MIDLAND & HLS
WRONGFUL CIVIL PROCEDURE
- 49. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein
- 50. Defendants Midland and HLS wrongfully initiated a civil action against Plaintiff on or about April 2009. 51. On or about October 2, 2009, said suit was terminated in Plaintiff’s favor.52. Defendants lacked probable cause to prosecute the action as described above.53. Defendants’ continued prosecution of the lawsuit against Plaintiff was also not in an effort to bring the rightful debtor to pay his or her obligation. Indeed, Defendants pursued the action through October 2, 2009 even after having received repeated notification from Plaintiff and after having failed to verify the disputed debt.54. Defendants as such acted in a knowing, willful, reckless, malicious and/or grossly negligent manner for purposes other than adjudicating the claims for which the proceeding were brought as described above.
55. The conduct of Defendants 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.
COUNT V – MIDLAND & HLS
Abuse of Process 56. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein.
57. Defendants Midland and HLS instituted a civil proceeding against Plaintiff as stated more full above.
58. Defendants used these proceedings for an ulterior or wrongful purpose for which the proceedings were not designed to accomplish including but not limited to harassing Plaintiff into paying for a debt for which she was not responsible to pay.
59. Defendants as such acted in a knowing, willful, reckless, malicious and/or grossly negligent manner for purposes other than adjudicating the claims for which the proceeding were brought as described above.
60. The conduct of Defendants 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.
COUNT VI – MIDLAND AND HLS
VIOLATIONS OF THE RHODE ISLAND DTPA
61. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein.
62. Plaintiff and Defendants are “persons” as defined by R.I. Gen. Laws §6-13.1-1.
63. Defendants used or employed unfair and deceptive acts or practices in the conduct of trade or commerce as described more fully above.
64. Defendants’ acts as described above were done with malicious, intentional, willful, reckless, wanton and negligent disregard for Plaintiff’s rights under the law.
65. As a result of the above violations of the DTPA, Plaintiff has suffered ascertainable losses entitling Plaintiff to an equitable relief, actual damages, punitive damages and attorney’s fees and costs.
JURY TRIAL DEMAND
66. Plaintiff demands trial by jury on all issues so triable.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff seeks judgment in Plaintiff’s favor and damages against the Defendants, based on the following requested relief:
(a) An order instructing Midland and/or HLS to cease and desist from all further collection activities against Plaintiff;
(b) Actual damages;
(c) Statutory damages;
(d) Punitive damages;
(e) Costs and reasonable attorney’s fees; and
(f) Such other and further relief as may be necessary, just and proper.
Respectfully Submitted,