IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA PLAINTIFF S COMPLAINT AND DEMAND FOR JURY TRIAL

Transcription

1 Case: 8:10-cv JFB-TDT Document #: 1 Date Filed: 02/12/10 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA KATHY BARRETT, Plaintiff, v. MERCHANTS CREDIT ADJUSTERS, INC, Defendant. PLAINTIFF S COMPLAINT AND DEMAND FOR JURY TRIAL COMES NOW Plaintiff, KATHY BARRETT ( Plaintiff, through her attorneys, KROHN & MOSS, LTD., and for her Complaint against Defendant, MERCHANTS CREDIT ADJUSTERS, INC ( Defendant, alleges and affirmatively states as follows: NATURE OF CASE 1. Count I of Plaintiff s Complaint is based on the Fair Debt Collection Practices Act, 15 U.S.C et seq. (FDCPA. JURISDICTION AND VENUE 2. Jurisdiction of this court arises pursuant to 15 U.S.C. 1692k(d, which states that such actions may be brought and heard before any appropriate United States district court without regard to the amount in controversy, and 28 U.S.C grants this court supplemental jurisdiction over the state tort claims alleged. 3. Defendant conducts business and is principally located in the state of Nebraska, and therefore, personal jurisdiction is established. 4. Venue is proper pursuant to 28 U.S.C. 1391(b(2. 5. Declaratory relief is available pursuant to 28 U.S.C and 2202.

2 Case: 8:10-cv JFB-TDT Document #: 1 Date Filed: 02/12/10 Page 2 of 5 PARTIES 6. Plaintiff is a natural person residing in Fremont, Dodge County, Nebraska. 7. Plaintiff is a consumer as that term is defined by 15 U.S.C. 1692a(3, and according to Defendant, Plaintiff allegedly owes a debt as that term is defined by 15 U.S.C. 1692a(5. 8. Defendant is a debt collector as that term is defined by 15 U.S.C. 1692a(6, and sought to collect a consumer debt from Plaintiff. 9. Defendant is a Nebraska corporation located in Omaha, Nebraska. 10. Defendant is a collection agency that in the ordinary course of business, regularly, on behalf of itself or others, engages in debt collection. FACTUAL ALLEGATIONS 11. Defendant places collection calls to Plaintiff seeking and demanding payment for an alleged debt owed by Plaintiff s son, Daniel Barrett, to Union Bank & Trust Co. 12. On or about December 28, 2009, Plaintiff first spoke to Defendant regarding the alleged debt. 13. Plaintiff informed Defendant that her son had passed away and hung up the telephone. 14. Defendant called Plaintiff on or about December 30, 2009, and again asked to speak with Daniel Barrett regarding the alleged debt. 15. Plaintiff again informed Defendant that her son had passed away and informed Defendant that the alleged debt had already been resolved.

3 Case: 8:10-cv JFB-TDT Document #: 1 Date Filed: 02/12/10 Page 3 of Subsequent to the conversation on December 30, 2009, Defendant placed additional calls to Plaintiff regarding the alleged debt. 17. On or about January 6, 2010, Plaintiff spoke with Defendant and again informed Defendant that her son had passed away. 18. Defendant s collector responded to Plaintiff, Can t he come to the phone and speak for himself? COUNT I DEFENDANT VIOLATED THE FAIR DEBT COLLECTION PRACTICES ACT 19. Defendant violated the FDCPA based on the following: a. Defendant violated 1692d of the FDCPA by engaging in conduct the natural consequence of which is to harass, oppress and/or abuse Plaintiff. b. Defendant violated 1692d(2 of the FDCPA by using language the natural consequence of which is to abuse Plaintiff. c. Defendant violated 1692d(5 of the FDCPA by causing the telephone to ring or engaging Plaintiff in telephone conversation repeatedly or continuously with intent to annoy, abuse and/or harass Plaintiff. WHEREFORE, Plaintiff, KATHY BARRETT, respectfully requests judgment be entered against Defendant, MERCHANTS CREDIT ADJUSTERS, INC, for the following: 20. Declaratory judgment that Defendant s conduct violated the Fair Debt Collection Practices Act; 21. Statutory damages pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. 1692k; 22. Actual damages;

4 Case: 8:10-cv JFB-TDT Document #: 1 Date Filed: 02/12/10 Page 4 of Costs and reasonable attorneys fees pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. 1692k; and 24. Any other relief that this Honorable Court deems appropriate. Dated: February 12, 2010 Respectfully submitted, KATHY BARRETT By: /s/ Michael S. Agruss Michael S. Agruss KROHN & MOSS, LTD Santa Monica Blvd., Ste. 401 Los Angeles, CA ( ( fax magruss@consumerlawcenter.com DEMAND FOR JURY TRIAL PLEASE TAKE NOTICE that Plaintiff, KATHY BARRETT, demands a jury trial in this case.

5 Case: 8:10-cv JFB-TDT Document #: 1 Date Filed: 02/12/10 Page 5 of 5