This case was last updated from Santa Clara County Superior Courts on 10/17/2019 at 11:15:02 (UTC).

Brady v. Patenaude & Felix

Case Summary

On 12/03/2018 Brady filed an Other lawsuit against Patenaude Felix. This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judge overseeing this case is Kuhnle, Thomas. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******8737

  • Filing Date:

    12/03/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judge

Kuhnle, Thomas

 

Party Details

Plaintiff

Brady, Frederick Michele

Defendants

Patenaude & Felix, A Professional Corporation

Patenaude & Felix

Not Classified By Court

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorneys

Salmonsen, Matthew C

Schwinn, Fred W.

Roulston, Raeon Rodrigo

Defendant Attorneys

Simonson, Todd Christopher

Coleman, June Dittus

Not Classified By Court Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Declaration

Consent to Electronic Filing: Comment: Consent to Electronic Filing

Notice

Consent to E-Service: Comment: Consent to Electronic Service and Notice of Electronic Service Address

Proof of Service

Proof of Service: Comment: Proof of Electronic Service

Acknowledgement/Receipt

Acknowledgement Receipt:

Civil Lawsuit Notice

Civil Lawsuit Notice: Comment: 1st CMC set for 3/22/19 at 10am in D5; assigned to Hon. Thomas E. Kuhnle

Order: Deeming Case Complex

Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/TEK

Summons: Issued/Filed

Summons Issued Filed:

Civil Case Cover Sheet

Civil Case Cover Sheet: Comment: COMPLEX

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies): Comment: Class Action Complaint for Statutory Damages

Answer: Amended

Answer Amended: Comment: 1ST AMENDED, atty Coleman

Answer (Unlimited) (Fee Applies)

Answer Response Denial Demurrer - First Appearance: Comment: to Complaint: atty Coleman

Minute Order

Minutes Non-Criminal:

Notice

Notice CMC 6-14-19 at 10am in D5: Comment: CMC set for 6/14/19 at 10am in D5

Statement: Case Management Conference

Joint CMC Statement: Comment: Jount Case Management Conference Statement

Proof of Service: Mail

Proof of Service Mail: Comment: Proof of Service: Mail

Statement: Case Management Conference

CMC Statement by Defendant: Comment: Case Management Statement

Proof of Service

Proof of Service: Comment: Proof of Service

Notice

Notice of Appearance: Comment: Notice of Appearance

15 More Documents Available

 

Docket Entries

  • 10/11/2019
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  • Conference: Case Management - Joint CMC Statement: Judicial Officer: Kuhnle, Thomas; Hearing Time: 10:00 AM; Result: Continued: Party's Motion; Comment: (4th CMC) Proposed Class Action * Discovery and responsive pleading deadline stayed, as of 12/4/18, when the case was deemed complex; stay on discovery was partially lifted on 3/22/19 for the purpose of class certification and discovery related to the individual plaintiff. Responsive pleadings due 4/17/19. Answer to Complaint filed 4/17/19; First Amended Answer to Complaint filed 4/25/19. Stipulated Protective Order entered 9/30/19.

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  • 10/11/2019
  • Minute Order

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  • 10/07/2019
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  • Statement: Case Management Conference - Joint CMC Statement: Comment: Joint Case Management Statement

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  • 09/30/2019
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  • Stipulation and Order - Stipulation and Protective Order: Comment: Stipulated Protective Order - signed/TEK

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  • 09/03/2019
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  • Notice - Notice CMC 10-11-19 at 10am in D5: Comment: CMC set for 10/11/19 at 10am in D5

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  • 08/30/2019
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  • Conference: Case Management - Joint CMC Statement HRG 8-30-19: Minutes Non-Criminal: Judicial Officer: Kuhnle, Thomas; Hearing Time: 10:00 AM; Result: Held; Comment: (3rd CMC)

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  • 08/30/2019
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  • Minute Order - Minutes Non-Criminal:

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  • 08/27/2019
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  • Statement: Case Management Conference - Joint CMC Statement HRG 8-30-19: Comment: Joint Case Management Statement

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  • 06/14/2019
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  • Conference: Case Management - Minutes Non-Criminal: Judicial Officer: Kuhnle, Thomas; Hearing Time: 10:00 AM; Result: Held; Comment: (2nd CMC)

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  • 06/14/2019
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  • Notice - Notice CMC 8-30-19 at 10am in D5: Comment: CMC set for 8/30/19 at 10am in D5

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13 More Docket Entries
  • 12/31/2018
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  • Notice - Notice of Appearance: Comment: Notice of Appearance

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  • 12/31/2018
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  • Declaration - Consent to Electronic Filing: Comment: Consent to Electronic Filing

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  • 12/27/2018
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  • Notice - Consent to E-Service: Comment: Consent to Electronic Service and Notice of Electronic Service Address

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  • 12/27/2018
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  • Proof of Service - Proof of Service: Comment: Proof of Electronic Service

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  • 12/24/2018
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  • Acknowledgement/Receipt - Acknowledgement Receipt:

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  • 12/04/2018
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  • Order: Deeming Case Complex - Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/TEK

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  • 12/03/2018
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  • Civil Lawsuit Notice - Civil Lawsuit Notice: Comment: 1st CMC set for 3/22/19 at 10am in D5; assigned to Hon. Thomas E. Kuhnle

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  • 12/03/2018
  • View Court Documents
  • Summons: Issued/Filed - Summons Issued Filed:

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  • 12/03/2018
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  • Civil Case Cover Sheet - Civil Case Cover Sheet: Comment: COMPLEX

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  • 12/03/2018
  • View Court Documents
  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies): Comment: Class Action Complaint for Statutory Damages

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Complaint Information

E-FILED

12/3/2018 2:27 PM

Fred W. Schwinn (SBN 225575) Clerk of Court

Raeon R. Roulston (SBN 255622) Superior Court of CA, Matthew C. Salmonsen (SBN 302854) County of Santa Clara CONSUMER LAW CENTER, INC. 18CV338737

1435 Koll Circle, Suite 104 Reviewed By: R. Walker

San Jose, California 95112-4610

Telephone Number: (408) 294-6100

Facsimile Number: (408) 294-6190

Email Address: fred.schwinn@sjconsumerlaw.com

Attorneys for Plaintiff

FREDERICK MICHELE BRADY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA

FREDERICK MICHELE BRADY, Case No. 18CV338737 individually and on behalf of all others (Unlimited Civil Case)

similarly situated,

CLASS ACTION COMPLAINT

v Plamtiff, FOR STATUTORY DAMAGES PATENAUDE & FELIX. A California Civil Code §§ 1788-1788.33 PROFESSIONAL CORPbRATION, q California Civil Code §§ 1812.700-1812.702

California corporation; and DOES 1 through 10, inclusive,

Defendants.

Plaintiff, FREDERICK MICHELE BRADY, on behalf of himself and all others similarly situated, based on information and belief and investigation of counsel, except for those allegations which pertain to the named Plaintiff or his attorneys (which are alleged on personal knowledge), hereby makes the following allegations:

INTRODUCTION

1. This is a consumer class action brought pursuant to the California Rosenthal Fair Debt Collection Practices Act, California Civil Code §§ 1788-1788.33 (hereinafter “RFDCPA”) which prohibits debt collectors from engaging in abusive, deceptive, and unfair practices, and California Civil Collection Notice.”

2. The California Legislature has found that:

The banking and credit system and grantors of credit to consumers are dependent upon the collection of just and owing debts. Unfair or deceptive collection practices undermine the public confidence which is essential to the continued functioning of the banking and credit system and sound extensions of credit to consumers.'

3. Plaintiff, FREDERICK MICHELE BRADY, on behalf of himself and all persons similarly situated, secks statutory damages against Defendants arising from their routine practice of sending initial written communications, like the one sent to Plaintiff, which fail to provide the “Consumer Collection Notice” required by California Civil Code § 1812.700(a), in a type-size that is at least the same type-size as that used to inform the debtor of his or her specific debt or in at least 12- point type, in violation of California Civil Code § 1812.701(b).

4. As a result, Defendants have engaged in unlawful acts in connection with their attempt to collect defaulted consumer debts from Plaintiff and the Class.

JURISDICTION AND VENUE

5. The California Superior Court has jurisdiction over this action pursuant to California Code of Civil Procedure § 410.10 and California Constitution Article VI, § 10, which grants the Superior Court “original jurisdiction in all cases except those given by statute to other trial courts.” This Court also has jurisdiction over this action pursuant to California Civil Code § 1788.30(f), which provides for enforcement in any court of competent jurisdiction. The statutes under which this action is brought do not grant jurisdiction to any other trial court in California.

6. This Court has jurisdiction over each Defendant named herein because, based on

information and belief, cach Defendant is a corporation or association authorized to do business in

California and registered with the California Secretary of State, or does sufficient business, has

! California Civil Code § 1788.1(a)(1). sufficient minimum contacts in California, is a citizen of California, or otherwise intentionally avails itself of the California market through the promotion, sale, marketing and/or distribution of goods and services in California and thereby having such other contacts with California so as to render the exercise of jurisdiction over it by the California courts consistent with traditional notions of fair play and substantial justice.

7. Venue is proper in the Santa Clara County Superior Court, pursuant to California Code of Civil Procedure §§ 395 and 395.5, because one or more of the violations alleged in this Complaint arise in the County of Santa Clara. Venue is also proper in the Santa Clara County Superior Court, pursuant to California Code of Civil Procedure § 395(b), because this action arises from an extension of credit intended primarily for personal, family, or household use and Plaintiff (the alleged borrower) resided in the County of Santa Clara at the commencement of this action.

8. The total amount in controversy as to Plaintiff and each member of the Proposed Class does not exceed seventy-four thousand, nine hundred and ninety-nine dollars ($74,999) each, exclusive of interest and costs. Plaintiff disclaims any compensatory damages, punitive damages, declaratory, injunctive, or equitable relief greater than ($74,999) per individual Class member. Plaintiff and the Proposed Class limit their total class wide claims to less than four million, nine hundred and ninety-nine thousand, nine hundred and ninety-nine dollars ($4,999,999.00).

9. Plaintiff and the proposed Class seek only statutory damages in this action and do not allege in this Class Action Complaint for Statutory Damages that they, or any of them, have suffered a concrete injury within the meaning of Article III of the United States Constitution and the Supreme Court’s related interpretation.

PARTIES

10. Plaintiff, FREDERICK MICHELE BRADY (hereinafter “Plaintiff”), is a natural

> See, Spokeo, Inc. v. Robins, U.S. 136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016). person residing in Santa Clara County, California. Plaintiff 1s a “debtor” as that term 1s defined by California Civil Code § 1788.2(h) and a “senior citizen” as that term is defined by California Civil Code § 1761(%).

11. Defendant, PATENAUDE & FELIX, A PROFESSIONAL CORPORATION (hereinafter “P&F”’), is a California corporation engaged in the business of collecting defaulted consumer debts in this state with its principal place of business located at: 4545 Murphy Canyon Road, 3rd Floor, San Diego, California 92123-4363. P&F may be served as follows: Patenaude & Felix, APC, c/o Raymond Patenaude, Agent for Service, 4545 Murphy Canyon Road, 3rd Floor, San Diego, California 92123-4363. The principal business of P&F is the collection of defaulted consumer debts using the mails and telephone, and P&F regularly attempts to collect defaulted consumer debts alleged to be due another. P&F is a “debt collector” as that term is defined by California Civil Code § 1788.2(c). P&F is a “third-party debt collector subject to the federal Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.)”, within the meaning of California Civil Code § 1812.700(a).

12. The true names and capacities, whether individual, corporate, associate, governmental, or otherwise, of Defendants, DOES 1 through 10, are unknown to Plaintiff at this time, who therefore sues said Defendants by such fictitious names. When the true names and capacities of said Defendants have been ascertained, Plaintiff will amend this Complaint accordingly. Plaintiff is informed and believes, and thereon alleges, that each Defendant designated herein as a DOE is responsible, negligently or in some other actionable manner, for the events and happenings hereinafter referred to, and caused damages thereby to the Plaintiff, as hereinafter alleged. Defendant, DOES 1-10, are, and each of them 1s, a “debt collector” as that term is defined by California Civil Code § 1788.2(c) and a “third-party debt collector subject to the federal Fair Debt Collection Practices Act (15 U.S.C. 13. At all times herein mentioned, each of the Defendants was the agent, servant, employee and/or joint venturer of his/her/its Co-Defendants, and each of them, and at all said times, each Defendant was acting in the full course and scope of said agency, service, employment and/or joint venture. Any reference hereafter to “Defendants” without further qualification i1s meant by Plaintiff to refer to each Defendant, and all of them, named above.

14. Plaintiff 1s informed and believes, and thereon alleges that at all times herein mentioned, Defendants, DOES 1-10, inclusive, were and are individuals, corporations, partnerships, unincorporated associations, sole proprietorships and/or other business entities organized and existing under and by virtue of the laws of the State of California, or the laws of some other state or foreign jurisdiction, and that said Defendants, and each of them, have regularly conducted business in the County of Santa Clara, State of California.

FACTUAL ALLEGATIONS

15. On a date or dates unknown to Plaintiff, Plaintiff incurred a financial obligation in the form of a consumer credit account issued by TD BANK USA, N.A. (hereinafter “the debt”). The debt to TD BANK USA, N.A., was incurred primarily for personal, family, or household purposes and is therefore a “consumer debt” as that term 1s defined by California Civil Code § 1788.2(f).

16. Thereafter, Plaintiff was unable to pay the debt and defaulted on his payments to TD BANK USA, N.A.

17. Plaintiff 1s informed and believes, and thereon alleges, that sometime thereafter on a date unknown to Plaintiff, the debt was assigned, consigned, or otherwise transferred to Defendants for collection from Plaintiff.

18. Thereafter, Defendants sent a collection letter (Exhibit “1”) to Plaintiff in an

attempt to collect the debt. 19. A true and accurate copy of Defendants’ collection letter to Plaintiff 1s attached hereto, marked Exhibit “1,” and by this reference is incorporated herein.

20. The collection letter (Exhibit “1”) 1s dated July 23, 2018.

21. The collection letter (Exhibit “1”) was the first written communication from Defendants to Plaintiff in connection with the collection of the debt.

22. The collection letter (Exhibit “1”°) notifies Plaintiff of his specific debt in 11-point type.

23. The collection letter (Exhibit “1”°) provides the notice required by California Civil Code § 1812.700(a) in 10-point type.

24, The collection letter (Exhibit ““1”) fails to provide the notice required by California Civil Code § 1812.700(a) in a type-size that 1s at least the same type-size as that used to inform Plaintiff of his specific debt or in at least 12-point type.

25. Defendants knew or should have known that their conduct was directed towards a senior citizen.

26. As a senior citizen subjected to Defendants’ abusive, deceptive, and unfair collection practices, Plaintiff is entitled to recover treble damages, pursuant to California Civil Code § 3345.

DEFENDANTS’ ROUTINE PRACTICES

27. It 1s the standard practice and policy of Defendants to send initial collection communications in the form of Exhibit “1” which seek to collect defaulted consumer debts incurred for personal, family, or household purpose.

28. It 1s the standard practice and policy of Defendants to send initial collection required by California Civil Code § 1812.700(a), in a type-size that is at least the same type-size as that used to inform the debtor of his or her specific debt or in at least 12-point type, in violation of California Civil Code § 1812.701(b).

CLASS ALLEGATIONS

29. Plaintiff brings this action on behalf of a class of all other persons similarly situated.

30. Plantiff tentatively defines the class as (1) all persons with addresses in California (i1) to whom Defendants sent, or caused to be sent, an initial written communication in the form of Exhibit “1,” (ii1) in an attempt to collect a defaulted consumer debt owed to TD BANK USA, N.A., (1v) which were not returned as undeliverable by the U.S. Post Office (v) during the period one year prior to the date of filing this action through the date of class certification.

31. Excluded from the class would be any officers, directors, or legal representatives of Defendants, and any judge, justice, or judicial officer presiding over this matter and the members of their immediate families and judicial staff. Plaintiff reserves the right to modify the Class definition and Class period based on the results of discovery.

32. The class i1s so numerous that joinder of all members is impractical. On information and belief, collection notices in the form of Exhibit “1” have been sent to hundreds of California class members.

33. Defendants have acted with respect to the Class, in a manner generally applicable to Plaintiff and each Class member. There is a well-defined community of interest in the questions of law and fact involved in this action, which affects all class members. Questions of law and fact common to the class predominate over any questions peculiar to individual class members. The a. Whether Defendants are debt collectors; and

b. Whether Defendants sent Plaintiff and the class initial written communication in the form of Exhibit “1” which fail to contain the “Consumer Collection Notice” required by California Civil Code § 1812.700(a), in a type-size that is at least the same type-size as that used to inform the debtor of his or her specific debt or in at least 12-point type, in violation of California Civil Code § 1812.701(b).

34. There are no individual questions of law or fact, other than whether a class member was sent the offending collection communication, which can be determined by ministerial inspection of Defendants’ records.

35. Plaintiff will fairly and adequately represent and protect the interest of the Class members. Plaintiff 1s committed to vigorously litigating this matter. Plaintiff has retained counsel experienced in handling class claims and litigation brought pursuant to various consumer protection statutes, including the federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (“FDCPA”), the California Rosenthal Fair Debt Collection Practices Act, California Civil Code §§ 1788-1788.33 (“RFDCPA”) and the California Fair Debt Buying Practices Act, California Civil Code §§ 1788.50-1788.64 (“CFDBPA”). Neither Plaintiff nor his counsel have any interests which might cause them not to vigorously pursue this claim. Plaintiff and his counsel will vigorously pursue this matter.

36. Plamtiff’s claims are typical of the claims of the other members of the Class in that Plaintiff and other Class members were similarly harmed by the actions of Defendants and the claims alleged herein all arise from the same operative facts and are based on the same legal theories. Plaintiff is a member of the Class he seeks to represent and he has suffered harm due to the unfair, 37. Defendants have acted or refused to act, with respect to some or all issues presented in this Complaint, on grounds generally applicable to the Class, thereby making it appropriate to provide relief with respect to the Class as a whole.

38. A class action is a superior method for the fair and efficient adjudication of this controversy. Most of the class members who received written communications in the form of Exhibit “1” have no knowledge that their rights are being violated by illegal collection practices. The interest of the class members in individually controlling the prosecution of separate claims against Defendants is small because the maximum damages in an individual action are $1,000, pursuant to the RFDCPA, California Civil Code § 1788.17.> Management of this class action is likely to present significantly fewer difficulties than those presented in many other class actions.

39. A class action is the best available method of the efficient adjudication of this litigation because individual litigation of Class members’ claims would be impracticable and unduly burdensome to the courts, and have the potential to result in inconsistent or contradictory judgments. There are no unusual difficulties likely to be encountered in the management of this litigation as a class action. A class action presents fewer management problems and provides the benefits of single adjudication, economies of scale, and comprehensive supervision by a single court.

40. Certification of the Class under California Code of Civil Procedure § 382 is appropriate in that:

a. The questions of law or fact common to the members of the Class predominate over any questions affecting only individual members; and

b. A class action is superior to other available methods for the fair and efficient adjudication of the controversy.

41. Certification of a class under California Code of Civil Procedure § 382 is also

> Incorporating by reference 15 U.S.C. § 1692k(a)(2)(A). appropriate in that Defendants acted on grounds generally applicable to the Class, thereby making appropriate declaratory relief with respect to the Class as a whole.

42. Plaintiff and the Class are entitled to an award of attorney fees and costs against Defendants, pursuant to the REDCPA, California Civil Code § 1788.17.*

FIRST CAUSE OF ACTION CALIFORNIA CONSUMER COLLECTION NOTICE

43. Plaintiff brings the first cause of action against Defendants under California Civil Code §§ 1812.700-1812.702.

44, Plaintiff repeats, realleges, and incorporates by reference all preceding paragraphs as though fully set forth herein.

45. Plaintiff 1s a “debtor” as that term 1s defined by California Civil Code § 1788.2(h).

46. Defendant, P&F, is a “debt collector” as that term is defined by California Civil Code § 1788.2(¢).

47. Defendant, P&F, 1s a “third-party debt collector subject to the federal Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.)”, within the meaning of California Civil Code § 1812.700(a).

48. The financial obligation alleged to be owed by Plaintiff is a “consumer debt” as that term is defined by California Civil Code § 1788.2(%).

49. Defendants failed to include the notice required by California Civil Code § 1812.700(a) in their first written notice to Plaintiff in a type-size that was at least the same type-size as that used to inform Plaintiff of his specific debt or in at least 12-point type, in violation of California Civil Code § 1812.701(b).

50. As a result of Defendants’ violations of California Civil Code § 1812.701(b), Plaintiff is entitled to an award of statutory damages in an amount not to exceed $1,000 against each Defendant, pursuant to California Civil Code § 1812.702. 51. As aresult of Defendants’ violations of California Civil Code § 1812.701(b), the Class is entitled to an award of statutory damages in an amount not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 percent of the net worth of each Defendant, pursuant to California Civil Code § 1788.17.° 52. As a result of Defendants’ violations of California Civil Code § 1812.701(b), Plaintiff is entitled to an award of reasonable attorney’s fees and costs, pursuant to California Civil Code § 1812.702.7 53. Pursuant to California Civil Code § 1788.32, the remedies provided under California Civil Code § 1788.17 are intended to be cumulative and in addition to any other procedures, rights or remedies that Plaintiff may have under any other provision of law.

REQUEST FOR RELIEF

Plaintiff requests that this Court: a) Assume jurisdiction in this proceeding; b) Certify this case as a class action and appoint Plaintiff and Plaintiff’s counsel to represent the Class; c) Find that Defendants’ collection letter attached hereto as Exhibit “1” violates California Civil Code § 1812.701(b); d) Award Plaintiff statutory damages in an amount not to exceed $1,000 against each Defendant, pursuant to California Civil Code § 1788.17° for violation of California Civil Code § 1788.17, incorporating by reference 15 U.S.C. §§ 1692k(a)(2)(A) and (B)(1). Incorporating by reference 15 U.S.C. § 1692k(a)(2)(B)(11). California Civil Code § 1812.701(b);

e) Award the class statutory damages in an amount not to exceed the lesser of five hundred thousand dollars ($500,000) or 1 percent of the net worth of each Defendant, pursuant to California Civil Code § 1788.17,° for Defendants’

violation of California Civil Code § 1812.701(b);

N

Enter an Order enjoining Defendants from continuing the practices at issue in

this case, pursuant to California Civil Code § 3422;

g) Award Plaintiff the costs of this action and reasonable attorney’s fees, pursuant to California Civil Code § 1788.17;"°

h) Award Plaintiff treble damages pursuant to California Civil Code § 3345; and

1) Award Plaintiff such other and further relief as may be just and proper. CONSUMER LAW CENTER, INC.

Dated: December 3, 2018 By: /s/ Fred W. Schwinn

Fred W. Schwinn (SBN 225575)

[1Raeon R. Roulston (SBN 255622)

[ Matthew C. Salmonsen (SBN 302854) CONSUMER LAW CENTER, INC.

1435 Koll Circle, Suite 104

San Jose, California 95112-4610

Telephone Number: (408) 294-6100

Facsimile Number: (408) 294-6190

Email Address: fred.schwinn@sjconsumerlaw.com

Attorneys for Plaintiff

FREDERICK MICHELE BRADY

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