Case :-cv-00 Document Filed 0// Page of 0 0 JOSE SILVA, on behalf of himself and others similarly situated, Plaintiff, vs. UNIFUND CCR, LLC AND PILOT RECEIVABLES MANAGEMENT, LLC Defendants. UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE Introduction Case No. :-cv-00-tsz CLASS ACTION COMPLAINT AND JURY DEMAND. This is a class action under the federal Fair Debt Collection Practices Act ( FDCPA, U.S.C. et seq. Jurisdiction and Venue. This Court has jurisdiction under U.S.C. k(d and U.S.C... Venue is proper in this Court under U.S.C. (b, as the acts and transactions giving rise to Jose Silva s ( Plaintiff action occurred in this district, because Plaintiff resides in this district, and since Defendants transact business in this district. Parties. Plaintiff is a natural person who at all relevant times resided in Seattle, Washington.. Plaintiff is a consumer as defined by U.S.C. a(. Class Action Complaint - 0 Warren Ave. N. Seattle, WA 0 (0-000
Case :-cv-00 Document Filed 0// Page of 0 0. Unifund CCR, LLC ( Unifund is an entity who at all relevant times was engaged, by use of the mails and telephone, in the business of attempting to collect from Plaintiff a debt as defined by U.S.C. a(.. Unifund is a debt collector as defined by U.S.C. a(.. Pilot Receivables Management, LLC ( Pilot is an entity who acquires debt in default merely for collection purposes.. Pilot was at all relevant times engaged in the business of attempting to collect from Plaintiff a debt as defined by U.S.C. a(. 0. Pilot is a debt collector as defined by U.S.C. a(.. Pilot was at all relevant times a direct and indirect participant in Unifund s efforts to collect a debt from Plaintiff. Factual Allegations. Plaintiff is obligated, or allegedly obligated, to pay a debt (the Debt now owed or due, or asserted to be owed or due Pilot.. Plaintiff s obligation, or alleged obligation, owed or due, or asserted to be owed or due Pilot, arises from a transaction in which the money, property, insurance, or services that are the subject of the transaction were incurred primarily for personal, family, or household purposes Plaintiff s purchase of consumer goods by using a Citibank, N.A. ( Citibank credit card.. Upon information and good faith belief, Citibank charged off the account (the Account associated with Plaintiff s credit card.. Upon information and good faith belief, Citibank voluntarily stopped adding interest to the Account as of the date that it charged off the Account. Class Action Complaint - 0 Warren Ave. N. Seattle, WA 0 (0-000
Case :-cv-00 Document Filed 0// Page of 0 0. Upon information and good faith belief, Citibank s standard policy and procedure is to voluntarily stop adding interest to accounts as of the date that it charges them off.. Upon information and good faith belief, Citibank owned the Account for a significant period of time after it voluntarily stopped adding interest to the Account, but before it sold the Account.. Upon information and good faith belief, Citibank, while it owned the Account, intentionally acted in a manner inconsistent with any right it may have had to add interest to the Account.. Upon information and good faith belief, Citibank voluntarily stopped sending periodic statements in connection with the Account as of the date that it charged off the Account. 0. Upon information and good faith belief, Citibank waived its right to add interest whether contractual or statutory to the Account as of the date that it charged off the Account.. On January, 0, Capital Management Services, LP mailed a letter to Plaintiff that read, in part: Description: CITI MASTERCARD Current Creditor: CITIBANK, N.A. Account #: XXXXXXXXXXXX Account Placed with our Office: $0. Interest on Account Since Placement: $.00 Interest Rate:.000% Total Balance: $0. * * * Dear Jose R. Silva: On behalf of CITIBANK, N.A., Capital Management Services, LP is willing to accept less than the full balance due as a settlement on the above mentioned account. See Capital Management Services, LP s January, 0 letter, attached as Exhibit A. Class Action Complaint - 0 Warren Ave. N. Seattle, WA 0 (0-000
Case :-cv-00 Document Filed 0// Page of 0 0. By way of its debt collection conduct, Capital Management Services, LP intentionally acted in a manner inconsistent with any right that it, and/or Citibank may have had to add interest to the Debt.. By way of its debt collection conduct, Capital Management Services, LP waived any right that it, and/or Citibank may have had to add interest whether contractual or statutory to the Debt. from Citibank.. Upon information and good faith belief, Pilot subsequently purchased the Account. Upon information and good faith belief, Pilot was aware, as of the date that it purchased the Account, that no additional interest did, would, or could accrue on the Debt after the date on which Citibank charged off the Account.. In connection with its purchase of the Account, Pilot took only the rights and interests in the Account that existed as of the date that it purchased the Account from Citibank.. Upon information and good faith belief Pilot did not, nor could have, acquired from Citibank any right to add interest whether contractual or statutory to the Debt.. On or about February, 0, Unifund, on behalf of Pilot, informed at least one credit reporting agency ( that the current balance of the Debt was $,; ( that Plaintiff last made a payment toward the debt on March, 00; ( that the past due balance of the Debt was $,; and ( that the original amount of the Debt was $,. read, in part:. On May 0, 0, Unifund mailed its initial communication to Plaintiff, which RE: 0 / CITIBANK, NA Account owned by PILOT RECEIVABLES MANAGEMENT, LLC Dear JOSE R SILVA: Class Action Complaint - 0 Warren Ave. N. Seattle, WA 0 (0-000
Case :-cv-00 Document Filed 0// Page of 0 0 This letter is to inform you that Unifund CCR, LLC currently is servicing the above referenced account with a balance of $,.00. See Unifund s May 0, 0 letter, attached as Exhibit B. 0. Unifund s May 0, 0 letter did not state ( whether interest was in fact accruing, and, if interest was accruing, the amount of interest due as of May 0, 0, ( the effective date as of which an amount would suffice to pay off the Debt in full, ( the date as of which any unpaid accrued interest was calculated, or ( the applicable interest rate, if any.. On June 0, 0, Unifund mailed a letter to Plaintiff that read, in part: RE: 0 / CITIBANK, NA Dear JOSE R SILVA: The account was opened on 0/0/00 and has been accruing interest since it was charged off on 0/0/00. The account has an original balance of $,., and its current balance is $,.. The total amount due in order to satisfy this account is $,.. Upon receipt of such payment your account will be marked as paid in full with a zero balance. See Unifund s June 0, 0 letter, attached as Exhibit C. Class Allegations. Plaintiff brings this action under Fed. R. Civ. P. on behalf of himself and others similarly situated.. Plaintiff seeks to represent three classes of individuals defined as: All persons ( located in Washington, ( to whom Unifund sent an initial debt collection communication, ( on behalf of Pilot, ( within the year preceding this complaint, ( and in connection with the collection of a consumer debt, ( that failed to state (a whether interest was in fact accruing on the subject debt, and, if interest was accruing, the amount of interest due as of the date of the initial communication, or (b the effective date as of which an amount would suffice to pay off the subject debt in full, or (c the date as of which any unpaid accrued interest was calculated, or (d the applicable interest rate. Class Action Complaint - 0 Warren Ave. N. Seattle, WA 0 (0-000
Case :-cv-00 Document Filed 0// Page of 0 0 All persons ( located in Washington, ( from whom Unifund, ( on behalf of Pilot, ( within the year preceding this complaint, ( and in connection with the collection of a consumer debt, ( attempted to collect, or collected interest, that it retroactively added to the subject debt, ( for a period of time during which a preceding creditor or debt collector did not add interest to the subject debt. All persons ( located in Washington, ( whose alleged debt Unifund reported to a credit reporting bureau, ( where the amount of the alleged debt that Unifund reported differed from the actual amount of the debt, ( within the year preceding this complaint, ( and in connection with the collection of a consumer debt.. The proposed classes specifically exclude the United States of America, the State of Washington, counsel for the parties, the presiding United States District Court Judge, the Judges of the United States Court of Appeals for the Ninth Circuit, and the Justices of The United States Supreme Court, all officers and agents Unifund and Pilot, and all persons related to within the third degree of consanguinity or affection to any of the foregoing individuals.. Upon information and good faith belief, the proposed classes are so numerous that joinder of members is impracticable.. The exact number of the members of the proposed classes are unknown at this time, but can be ascertained through appropriate discovery.. Upon information and good faith belief, the classes are ascertainable in that the names and addresses of all members of the proposed classes can be identified by Unifund s and Pilot s business records.. There exists a well-defined community of interest in questions of law and fact that affect all members of the proposed classes.. These common questions of law and fact predominate over questions that may affect individual members of the proposed classes. 0. These common questions of law and fact include, but are not limited to: Unifund s identical conduct with regard to all members of the proposed classes; Class Action Complaint - 0 Warren Ave. N. Seattle, WA 0 (0-000
Case :-cv-00 Document Filed 0// Page of Pilot s identical conduct with regard to all members of the proposed classes; The availability of statutory penalties under the FDCPA; 0 0 The availability of attorneys fees under the FDCPA; The availability of costs under the FDCPA.. Plaintiff s claims are typical of those of the members of the proposed classes.. Plaintiff s claims, and the claims of the members of the proposed classes, originate from the same conduct, practice, and procedure, on the part of Unifund and Pilot.. If brought and prosecuted individually, the claims of each member of the proposed classes would require proof of the same material and substantive facts.. Plaintiff possesses the same interests and has suffered the same injuries as each member of the proposed classes.. Plaintiff asserts identical claims, and seeks the same relief, for both himself and the members of the proposed classes.. Plaintiff will fairly and adequately protect the interests of the members of the proposed classes.. Plaintiff has no interest that directly and irrevocably conflicts with the interests of other members of the proposed classes.. Plaintiff is willing and prepared to serve this Court and the member of the proposed classes.. Plaintiff s interests are co-extensive with, and not directly antagonistic to, those of the absent members of the proposed classes. 0. Plaintiff has retained the services of counsel who are experienced in both consumer protection claims and complex class action litigation. Class Action Complaint - 0 Warren Ave. N. Seattle, WA 0 (0-000
Case :-cv-00 Document Filed 0// Page of 0 0. Plaintiff s counsel will vigorously prosecute this action, and will assert, protect, and otherwise represent both Plaintiff and all absent members of the proposed classes. Class certification is appropriate under Fed. R. Civ. P. (b((a and (b((b as the prosecution of separate actions by individual members of the proposed class would as a practical matter be dispositive of the interests of other members of the proposed classes who are not parties to the action, or could substantially impair or impede their ability to protect their interests.. The prosecution of separate actions by individual members of the proposed classes may create a risk of inconsistent or varying adjudications with respect to individual members of the proposed class, which could establish incompatible standards of conduct for the Unifund and Pilot.. These incompatible standards of conduct and varying adjudications, on what would necessarily be the same essential facts, proof, and legal theories, could also create and allow the existence of inconsistent and incompatible rights within the proposed classes.. Class certification is appropriate under Fed. R. Civ. P. (b( in that Unifund and Pilot have acted or refused to act on grounds generally applicable to the members of the proposed classes, making final declaratory or injunctive relief appropriate.. Class certification is appropriate under Fed. R. Civ. P. (b( in that the questions of law and fact that are common to members of the proposed classes predominate over any questions affecting only individual members of the proposed classes.. Moreover, a class action is superior to other methods for the fair and efficient adjudication of the controversies raised in this complaint in that: Class Action Complaint - 0 Warren Ave. N. Seattle, WA 0 (0-000
Case :-cv-00 Document Filed 0// Page of 0 Individual claims by the members of the proposed classes may be impracticable as the costs of pursuit could far exceed what any one member of the proposed classes has at stake; Very little litigation has been commenced over the controversies alleged in this complaint and individual members of the proposed classes are unlikely to have an interest in prosecuting and controlling separate individual actions; and The concentration of litigation of these claims in one forum will achieve efficiency and promote judicial economy. Count I Violation of U.S.C. e((a 0. The FDCPA at Section e((a provides: A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: * * * ( The false representation of (A the character, amount, or legal status of any debt. U.S.C. e((a.. Unifund violated U.S.C. e((a by falsely representing the character, amount, or legal status of the Debt, as ( the Debt did not include, nor could it have included, interest that Citibank did not add to the Debt when it owed the Debt; ( as the Debt did not include, nor could it have included, interest that Capital Management Services, LP did not add to the Debt while it attempted to collect the Debt; and ( as the Unifund could not have added interest to the Debt after Citibank or Capital Management Services, LP waived the right to do so. Class Action Complaint - 0 Warren Ave. N. Seattle, WA 0 (0-000
Case :-cv-00 Document Filed 0// Page 0 of 0 0 0. Unifund violated U.S.C. e((a by falsely representing the character, amount, or legal status of the Debt, as it informed Plaintiff that interest was accruing, despite that it was not, and that Unifund had previously reported as much to at least one major credit bureau.. In the alternative, Unifund violated U.S.C. e((a by falsely representing the character, amount, or legal status of the Debt, as it reported the incorrect amount of the Debt to at least one major credit bureau.. Pilot, by virtue of its status as a debt collector under the FDCPA notwithstanding its affirmative actions is liable for Unifund s conduct, as Unifund attempted to collect the alleged debt from Plaintiff on Pilot s behalf. Count II Violation of U.S.C. e(. The FDCPA at Section e( provides A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: * * * (0 The threat to take any action that cannot be legally taken or that is not intended to be taken. U.S.C. e(0.. Unifund violated U.S.C. e( by threating to take any action that cannot be legally taken or that is not intended to be taken, as ( the Debt did not include, nor could it have included, interest that Citibank did not add to the Debt when it owed the Debt; ( as the Debt did not include, nor could it have included, interest that Capital Management Services, LP did not add to the Debt while it attempted to collect the Debt; and ( as the Unifund could not have added interest to the Debt after Citibank or Capital Management Services, LP waived the right to do so. Class Action Complaint - 0 0 Warren Ave. N. Seattle, WA 0 (0-000
Case :-cv-00 Document Filed 0// Page of 0 0. Pilot, by virtue of its status as a debt collector under the FDCPA notwithstanding its affirmative actions is liable for Unifund s conduct, as Unifund attempted to collect the alleged debt from Plaintiff on Pilot s behalf. Count III Violation of U.S.C. e(0. The FDCPA at Section e(0 provides: A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: * * * (0 The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer..s.c. e(0.. Unifund violated U.S.C. e(0 by using false or deceptive means to collect, or attempt to collect the subject alleged debt from Plaintiff, as ( the Debt did not include, nor could it have included, interest that Citibank did not add to the Debt when it owed the Debt; ( as the Debt did not include, nor could it have included, interest that Capital Management Services, LP did not add to the Debt while it attempted to collect the Debt; and ( as the Unifund could not have added interest to the Debt after Citibank or Capital Management Services, LP waived the right to do so.. Unifund violated U.S.C. e(0 by using false or deceptive means to collect, or attempt to collect the subject alleged debt from Plaintiff, as it informed Plaintiff that interest was accruing, despite that it was not, and that Unifund had previously reported as much to at least one major credit bureau. Class Action Complaint - 0 Warren Ave. N. Seattle, WA 0 (0-000
Case :-cv-00 Document Filed 0// Page of 0 0. In the alternative, Unifund violated U.S.C. e(0 by using false or deceptive means to collect, or attempt to collect the subject alleged debt from Plaintiff, as it reported the incorrect amount of the Debt to at least one major credit bureau. 0. Pilot, by virtue of its status as a debt collector under the FDCPA notwithstanding its affirmative actions is liable for Unifund s conduct, as Unifund attempted to collect the alleged debt from Plaintiff on Pilot s behalf. Count IV Violation of U.S.C. f(. The FDCPA at Section f(provides: A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. * * * ( The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation unless such amount is expressly authorized by the agreement creating the debt or permitted by law. U.S.C. f(.. Unifund violated U.S.C. f( by attempting to collect an amount from Plaintiff not expressly authorized by the agreement creating the Debt, or permitted by law, as ( the Debt did not include, nor could it have included, interest that Citibank did not add to the Debt when it owed the Debt; ( as the Debt did not include, nor could it have included, interest that Capital Management Services, LP did not add to the Debt while it attempted to collect the Debt; and ( as the Unifund could not have added interest to the Debt after Citibank or Capital Management Services, LP waived the right to do so.. Pilot, by virtue of its status as a debt collector under the FDCPA notwithstanding its affirmative actions is liable for Unifund s conduct, as Unifund attempted to collect the alleged debt from Plaintiff on Pilot s behalf. Class Action Complaint - 0 Warren Ave. N. Seattle, WA 0 (0-000
Case :-cv-00 Document Filed 0// Page of 0 0 Count V Violation of U.S.C. g(a(. The FDCPA at Section g(a( provides: Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing ( the amount of the debt; U.S.C. g(a(.. Unifund violated U.S.C. g(a( by failing to meaningfully disclose the amount of the debt through its initial communication to Plaintiff, or within five days thereof.. In particular, Unifund did not disclose, through its initial communication with Plaintiff, or within five days thereof, ( whether interest was in fact accruing, and, if interest was accruing, the amount of interest due as of the date of its initial communication, ( the effective date as of which an amount would suffice to pay off the Debt in full, ( the date as of which any unpaid accrued interest was calculated, or ( the applicable interest rate, if any.. Pilot, by virtue of its status as a debt collector under the FDCPA notwithstanding its affirmative actions is liable for Unifund s conduct, as Unifund attempted to collect the alleged debt from Plaintiff on Pilot s behalf.. Plaintiff requests a trial by jury. Trial by Jury WHEREFORE, Plaintiff prays for relief and judgment as follows: a Determining that this action is a proper class action under Fed. R. Civ. P. ; b Certifying Plaintiff as class a representative; c Appointing Plaintiff s counsel as class counsel; Class Action Complaint - 0 Warren Ave. N. Seattle, WA 0 (0-000
Case :-cv-00 Document Filed 0// Page of 0 d Adjudging that Unifund and Pilot violated U.S.C. e((a, U.S.C. e(; U.S.C. e(0, and U.S.C. f(; e Awarding Plaintiff, and members of the proposed class, statutory damages; f Awarding Plaintiff, and members of the proposed class, actual damages; g Awarding Plaintiff, and members of the proposed class, reasonable attorneys fees and costs incurred in this action; h Awarding Plaintiff, and members of the proposed class, any pre-judgment and postjudgment interest as may be allowed under the law; i Awarding other and further relief as this Court may deem just and proper. 0 Respectfully submitted, /s Matthew J. Cunanan Matthew J. Cunanan, WSBA#0 DC LAW GROUP NW LLC 0 Warren Ave N Seattle, WA 0 Telephone: (0-000 Facsimile: ( -000 Email: matthew@dclglawyers.com s/aaron D. Radbil Aaron D. Radbil (pro hac vice application to follow Greenwald Davidson PLLC 0 Glades Road, Suite 00 Boca Raton, Florida.... (facsimile aradbil@mgjdlaw.com Class Action Complaint - 0 Warren Ave. N. Seattle, WA 0 (0-000