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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
COURT FILE NO.: CV -
Glenn Bowen,
Plaintiff,
v.
Account Control Technology, Inc., and
Ms. Burden,
Defendants.
COMPLAINT
JURY TRIAL DEMANDED
JURISDICTION
1. Jurisdiction of this Court arises under 28 U.S.C. § 1331
and pursuant to 15 U.S.C. §
1692k(d), and pursuant to 28 U.S.C. § 1367 for pendent
state law claims.
2. This action arises out of Defendants’
violations of the Fair Debt Collection
Practices Act, 15
U.S.C. § 1692 et seq. (“FDCPA”), the Rosenthal Fair Debt Collection Practices Act,
Civil Code §§ 1788-1788.32 (“RFDCPA”), and the invasions of Plaintiff’s personal privacy
by these Defendants in their efforts to collect a consumer
debt.
3. Venue is proper in this District because the acts and
transactions occurred here, Plaintiff
resides here, and Defendants transacted business here.
PARTIES
4. Plaintiff Glenn Bowen is a natural person who resides in
the City of
Hennepin, State of
1692a(3) and a “debtor” as that term is
defined by California Civil Code § 1788.2(h).
5. Defendant Account Control Technology, Inc. (hereinafter “Defendant ACT”) is a collection
agency operating from an address of
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91303 and is a “debt collector” as that term is
defined by 15 U.S.C. § 1692a(6) and as that
term is defined by California Civil Code § 1788.2(b).
6. Defendant Burden (hereinafter “Burden”) is a natural person employed by Defendant
ACT as a collection agent and is a “debt collector” as that term is defined by 15 U.S.C. §
1692a(6).
FACTUAL ALLEGATIONS
7. Sometime in or around 1985, Plaintiff 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) and by California Civil
Code § 1788.2(d) and a
“consumer debt” as that term is defined by California Civil Code §
1788.2(f), namely,
federal guaranteed student loans through Nebraska Student
Loan Association.
8. Sometime thereafter, the debt was consigned, placed or
otherwise transferred to
Defendants for collection from the Plaintiff.
9. Plaintiff is informed and believes, and thereon alleges,
that at all times relevant,
Defendants conducted business from the State of
First Communication
10. On or about
spoke with Defendant Burden.
11. Defendant Burden told Plaintiff that Defendant ACT had
obtained a “judgment”
to
garnish Plaintiff’s wages, and that she would be contacting Plaintiff’s employer to begin
garnishing Plaintiff’s paycheck next week unless Plaintiff made a payment on that day.
12. In fact, no such judgment has ever been obtained and
therefore Defendant Burden’s
statement with this regard was a false and deceptive
communication violation of
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numerous and multiple provisions of the FDCPA, including
but not limited to 15 U.S.C.
§§ 1692e, 1692e(2), 1692e(4), 1692e(5), 1692e(10), and
1692f, amongst others.
13. In addition, Defendant Burden never provided the notice
required by 1692e(11), and
therefore her communication with Plaintiff on this occasion
was also a violation of
numerous and multiple provisions of the FDCPA, including
but not limited to 15 U.S.C.
§§ 1692e, 1692e(2), 1692e(5), 1692e(10), and 1692f, amongst
others.
14. Plaintiff told Defendant Burden that he was at work and
needed to call her back because
Plaintiff’s employer did not permit collection calls to the workplace.
Second Communication
15. Immediately after work, Plaintiff returned the phone
call to Defendant Burden.
16. Plaintiff spent much of the conversation with Defendant
Burden trying to determine
whether Defendant ACT represented the first or second owner
of the loan, since Plaintiff
believed that both owners were trying to collect
independently on the full amount of the
loan and he was unwilling and unable to pay the full amount
of these student loans, twice.
17. Defendant Burden gave Plaintiff an 800 telephone number
to call for verification of the
loans, but Defendant Burden would not permit Plaintiff time
to call and verify them.
18. Defendant Burden told Plaintiff that if he hung up and
called the 800 number to verify
ownership of the loans, that the “deal [would] be off”and that she would begin
garnishing his paychecks immediately.
19. Defendant Burden told Plaintiff that he must give her
full disclosures of all of his
checking and credit card account numbers and balances, his
current salary, and his
current home address and social security number, in order
for her determine how much of
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a payment Defendants would accept from the Plaintiff on
these loans in order to
rehabilitate them from default status.
20. Plaintiff then gave Defendant Burden his personal
account and other information and was
placed on hold for approximately 5 minutes.
21. Defendant Burden returned to the phone and told
Plaintiff that the minimum initial
payment that Plaintiff must make in order to rehabilitate
these student loans from default
status was $1,731. The imposition of an arbitrary minimum
monthly payment amount in
order to rehabilitate defaulted student loans, which does
not fairly take into account
Plaintiff’s reasonable monthly living expenses, is a prohibited practice under the
Family
Federal Educational Loan Program See 34 CFR § 682.405.
Therefore, Defendant
Burden’s collection communications to this effect were false and deceptive
statements
made in an attempt to collect a consumer debt and in
violation of numerous and multiple
provisions of the FDCPA, including but not limited to 15
U.S.C. §§ 1692e, 1692e(2),
1692e(4), 1692e(5), 1692e(10), and 1692f, amongst others.
22. Despite the fact that Plaintiff could barely afford
this $1,731 amount, Plaintiff agreed to
make this payment and authorized Defendant Burden to deduct
this amount directly from
his checking account debit card because he feared that he
would be fired or demoted if
his paycheck was garnished, as Defendant Burden had earlier
threatened.
Third Communication
23. On or about
and was very angry.
24. This collection call from Defendant Burden was made
after Plaintiff had previously
advised Defendant Burden that he could not accept
collection calls at work, and was
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therefore a communication in violation of numerous and
multiple provisions of the
FDCPA, including but not limited to 15 U.S.C. §§
1692c(a)(1), 1692c(a)(3), 1692d,
1692e, 1692e(5), 1692e(10), and 1692f, amongst others.
25. Defendant Burden said that Defendants had tried to
withdraw the funds, but the transfer
had been refused by the bank.
26. Defendant Burden went on to say that since Plaintiff
was not dealing with them
“honestly,” Defendants were going to start the garnishment of his
paychecks immediately
that day.
27. Plaintiff knew that he had sufficient funds in his
account to make this transfer payment
and he did not understand why the transfer would not have
worked, so Plaintiff told
Defendant Burden he would call her back.
28. Plaintiff then called his bank where the checking
account was held and was told that there
had been no attempt to withdraw any funds whatsoever by
Defendants.
Fourth Communication
29. On
back and asked her what account number she had used to try
to transfer these funds.
30. Defendant Burden told Plaintiff that after they tried
to make an electronic funds transfer,
that they are required to destroy the account number
information by law.
31. Plaintiff offered to give Defendants the account number
information again, but Defendant
Burden refused, stating that “that is not going to work.”
32. Defendant Burden went on to say that that since
Plaintiff had not given them the correct
account information, the original deal was no longer valid
and that Plaintiff would need
to go to his bank, withdraw cash, and send the cash
directly to them.
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33. This sounded very suspicious to Plaintiff as there was
no reason for the transaction not to
have occurred, there had been no attempt to transfer these
funds by Defendant, and a cash
payment on these loans would not be traceable back to
Plaintiff.
34. Before ending the call, Plaintiff told Defendant Burden
that he objected to making a cash
payment and that he would be getting a lawyer.
Fifth Communication
35. On
Burden to send Plaintiff verification of this debt in
writing, since he had never received
anything in writing from these Defendants.
36. Plaintiff asked for and spoke to Defendant Burden.
37. Defendant Burden then reiterated her demands for
payment from Plaintiff, but he refused
to agree to any payments until he had been provided with
some proof of this debt in
writing from Defendants.
38. After a while, Defendant Burden placed Plaintiff on
hold and transferred him to her
“supervisor.”
39. Plaintiff again asked Defendant Burden’s supervisor for something in writing with regard
to this debt, but Defendant Burden’s supervisor refused.
40. When Plaintiff attempted to give again his address to
the supervisor for her to send this
information, the supervisor hung up on Plaintiff.
Sixth Communication
41. On or about
Plaintiff at his workplace, but Plaintiff hung up as soon
as Defendant Burden identified
herself.
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42. This collection call from Defendant Burden was made
after Plaintiff had previously
advised Defendant Burden that he could not accept
collection calls at work, and was
therefore a communication in violation of numerous and
multiple provisions of the
FDCPA, including but not limited to 15 U.S.C. §§ 1692c(a)(1),
1692c(a)(3), 1692d,
1692e, 1692e(5), 1692e(10), and 1692f, amongst others.
Seventh Communication: Calls to Employer
43. Sometime on or about
directly supervises Plaintiff’s work, received a collection phone call from Defendant
Burden in an attempt to collect this debt.
44. Upon information and belief, Defendant Burden verified
Plaintiff’s employment with
his
company and disclosed to Plaintiff’s supervisor/owner that Defendants were collecting a
debt from Plaintiff.
45. This collection call from Defendant Burden was made
after Plaintiff had previously
advised Defendant Burden that he could not accept
collection calls at work and had never
given Defendant Burden permission to speak with his employer,
and was therefore a
communication in violation of numerous and multiple
provisions of the FDCPA
including but not limited to 15 U.S.C. §§ 1692b(2),
1692c(a)(1), 1692c(a)(3), 1692d,
1692e, 1692e(5), 1692e(10), and 1692f, amongst others.
46. Immediately after this 4-5 minute phone call, which
Plaintiff overheard from his cube
adjacent to the supervisor/owner, the owner of the business
called Plaintiff into a
conference room to speak with him.
47. The owner confronted Plaintiff and told him that he had
received a call from Defendant
Burden and that this was a matter that Plaintiff needed to
handle immediately.
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48. The owner gave Plaintiff a slip of paper with Defendant
Burden’s name on it and her
phone number.
49. Plaintiff’s supervisor appeared very upset by the receipt of this collection call
and made
his unhappiness very clear to Plaintiff.
50. Moreover, the owner then told Plaintiff that Defendant
Burden had also called the
company’s payroll person and spoken with her on several occasions previously,
unbeknownst to Plaintiff. See attached as Exhibit 1.
51. Plaintiff was extremely shocked, embarrassed,
humiliated, angry, and emotionally upset
by the revelation of Defendant Burden’s misconduct in invading Plaintiff’s privacy by
attempting to collect this debt through impermissible
contacts to other employees at his
workplace.
52. Sometime thereafter, Plaintiff received a demotion in
responsibilities at his workplace
which, upon information and belief, was a direct and
proximate result of these harassing
debt collection calls from Defendant Burden.
53. This demotion has now placed Plaintiff in position
where there is no real upward
advancement possibility for him in this job.
Eighth Communication
54. On
privately and spoke with her for approximately 30-45
minutes.
55. Defendant Burden again demanded payment of the $1,731
and wanted to have a
“conference call” with Plaintiff’s bank to ensure that the transfer would be made.
56. Plaintiff again questioned who the legal owner of these
loans was and why two different
debt collectors would be attempting to collect them from
Plaintiff.
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57. Plaintiff also questioned Defendant Burden about why
she had not attempted to process
the first electronic funds transfer.
58. Plaintiff asked Defendant Burden why she was harassing
him at work and trying to get
him fired.
59. Finally, Plaintiff told Defendant Burden that he would
not authorize any money transfers
to the Defendants from his account, unless and until he
received something in writing
from them showing who owned the loans and how much he owed.
60. The phone call ended with Defendant Burden demanding
that Plaintiff call her back to
arrange for a $1731 payment, since they had all ready
contacted his employer once, and
would do so again if he did not pay.
61. Defendant Burden then went on to state that the
garnishment was going to “hurt” Plaintiff
but would not hurt her.
62. Plaintiff did not call Defendant Burden back because he
felt that this demand for payment
was coercive and made no sense to him given the facts and
circumstances.
63. Later that night, Plaintiff contacted his bank again
and found that there still had been no
attempt to withdraw any funds from his account by
Defendants.
64. Thereafter, Plaintiff closed this debit card account
because he was concerned that he had
given his account numbers and authorization to withdraw
$1,731 to a questionable
organization for questionable purposes.
Ninth Communication
65. On
66. That same afternoon, Mr. Forsberg called Defendant
Burden, and identified himself as
Plaintiff’s lawyer.
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67. Defendant Burden refused to speak with Mr. Forsberg
with regard to this matter but
instead demanded that he send her a written letter of
representation, which Mr. Forsberg
subsequently sent the following day. See attached as
Exhibit 2.
68. Exhibit 2 is a written dispute of this debt and a
demand for verification which triggered
Defendants’ duties to verify this debt and provide such information to
Plaintiff’s attorney,
under 15 U.S.C. § 1692g(b).
69. Despite having sent this demand for verification,
neither the Plaintiff, nor Mr. Forsberg,
has ever received any verification or other proof of this
debt, as required by 15 U.S.C. §
1692g(b).
70. Rather than verify this debt as required by law,
Defendants’ instead escalated
their
attempts to collect this debt by using an administrative
wage garnishment action against
Plaintiff. See attached as Exhibit 3.
71. The collection of this debt, after a timely demand for
verification under 15 U.S.C. §
1692g, without having first verified this debt and provided
that verification to the
Plaintiff, was a violation of numerous and multiple
provisions of the FDCPA, including
but not limited to 15 U.S.C. §§ 1692c(c), 1692d, 1692e,
1692e(2), 1692e(5), 1692e(10),
1692f, and 1692g, amongst others.
72. Plaintiff has suffered actual damages because of the
Defendants’ violations of the
FDCPA in the form of attorneys fees incurred from Mr.
Forsberg in the approximate
amount of $241.
Tenth Communication
73. A few days later, Plaintiff found a letter in his
mailbox postmarked
from Defendant ACT which was a “NOTICE PRIOR TO WAGE WITHHOLDING”
and
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purporting to state Plaintiff’s rights under the National Student Loan Program, 20 U.S.C.
§ 1095(a). See attached as Exhibit 4.
74. This notice was the only written document ever sent to,
or received by, Plaintiff from
these Defendants.
75. Therefore, the failure by these Defendants to timely
send Plaintiff the debt validation
notice required by law was therefore a violation of
numerous and multiple provisions of
the FDCPA, including but not limited to 15 U.S.C. §§ 1692e,
1692e(2), 1692e(5),
1692e(10), 1692f, and 1692g, et seq., amongst others.
76. Upon information and belief, this communication was
sent to Plaintiff after and in
response to the phone call made by Plaintiff’s attorney, Mr. Forsberg, to Defendant
Burden.
77. Therefore, this was a communication made after knowing
that Plaintiff was represented
by an attorney in the matter, and was a communication made
in violation of numerous
and multiple provisions of the FDCPA, including but not
limited to 15 U.S.C. §§
1692c(a)(1), 1692c(a)(2), 1692c(c), 1692e, 1692e(5),
1692e(10), and 1692f, amongst
others.
Summary
78. Plaintiff has suffered actual damages as a result of
these illegal collection communications
in the form of anger, anxiety, emotional distress, fear,
humiliation, frustration, amongst
other negative emotions, as well as suffering from
unjustified and abusive invasions of
personal privacy at Plaintiff’s home and workplace, and unwarranted and unnecessary job
modifications by his employer.
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79. Because the above-described communications from these
Defendants to this Plaintiff violate
numerous and multiple provisions of the FDCPA, they also
violate the RFDCPA California
Civil Code § 1788.17.
TRIAL BY JURY
80. Plaintiff is entitled to and hereby respectfully
demands a trial by jury. US Const. amend.
7. Fed. R. Civ. Pro. 38.
CAUSES OF ACTION
COUNT I.
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. § 1692 et seq.
81. Plaintiff incorporates by reference all of the above
paragraphs of this Complaint as
though fully stated herein.
82. The foregoing acts and omissions of each and every
Defendant constitute numerous and
multiple violations of the FDCPA including, but not limited
to, each and every one of the
above-cited provisions of the FDCPA, 15 U.S.C. § 1692 et
seq.
83. As a result of each and every Defendant’s violations of the FDCPA, Plaintiff is therefore
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); and, reasonable
attorney’s fees and costs pursuant to 15 U.S.C. § 1692k(a)(3) from each and every
Defendant herein.
COUNT II.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION
AND BY PUBLICATION OF PRIVATE FACTS
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84. Plaintiff incorporates by reference all of the
paragraphs of this Complaint as though fully
stated herein.
85. Defendants intentionally interfered, physically or
otherwise, with the solitude, seclusion
and or private concerns or affairs of the Plaintiff, and
interfered with Plaintiff’s right to
privacy by the publication and dissemination of private
financial facts and circumstances
to his employer and other employees.
86. Defendants intentionally caused harm to Plaintiff’s emotional well being by engaging in
highly offensive conduct in the course of collecting this
debt thereby invading and
intruding upon Plaintiff’s right to privacy.
87. Plaintiff had a reasonable expectation of privacy in
Plaintiff’s solitude,
seclusion, and or
private concerns or affairs.
88. These intrusions and invasions by Defendants occurred
in a way that would be highly
offensive to a reasonable person in that position.
89. As a result of such invasions of privacy, Plaintiff is
entitled to actual damages in an
amount to be determined at trial from each and every
Defendant.
COUNT III.
VIOLATION OF THE ROSENTHAL FAIR DEBT COLLECTION PRACTICES
ACT
§§ 1788-1788.32 (RFDCPA)
90. Plaintiff incorporates by reference all of the above
paragraphs of this Complaint as
though fully stated herein.
91. The foregoing acts and omissions of these Defendants
constitute numerous and multiple
violations of the RFDCPA.
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92. As a result of these Defendants’
violations of the RFDCPA, Plaintiff is
entitled to
statutory damages for a knowing or willful violation in the
amount up to $1,000.00
pursuant to California Civil Code § 1788.30(b), and
reasonable attorney’s fees and costs
pursuant to California Civil Code § 1788.30(c) from this
Defendant.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff
prays that judgment be entered against each and every Defendant for:
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 each and
every Defendant;
for an award of statutory damages of $1,000.00 pursuant to
15 U.S.C.
§1692k(a)(2)(A) against each and every Defendant;
for an award of costs of litigation and reasonable attorney’s fees pursuant to 15 U.S.C. §
1692k(a)(3) against each and every Defendant;
COUNT II.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION
for an award of actual damages from each and every Defendant
for the emotional
distress suffered as a result of the FDCPA violations and
invasions of privacy in an
amount to be determined at trial;
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COUNT III.
VIOLATION OF THE ROSENTHAL FAIR DEBT COLLECTION PRACTICES
ACT
§§ 1788-1788.32 (RFDCPA)
for an award of actual damages pursuant to California Civil
Code § 1788.30(a) against
each Defendant in an amount to be determined at trial;
for an award of statutory damages of $1,000.00, pursuant to
California Civil Code §
1788.30(b);
for an award of costs of litigation and reasonable attorney’s fees for, pursuant to
for such other and further relief as may be just and
proper.
Dated:
[Law office name deleted] .
By: [Lawyers name deleted]
[same note].
Attorney I.D [same note]
Telephone: (651) [number deleted]
Facsimile: (651) [number deleted]
[email address deleted]
Attorney for Plaintiff
[initilals deleted]