PLAINTIFF’S COMPLAINT

1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF FLORIDA

ANA P. GARCIA,

Plaintiff

v.

CAPITAL ONE BANK (USA), N.A.,

 Defendant

)

)

)

)

)

)

)

)

)

)

Case No.: 

COMPLAINT AND DEMAND FOR 

JURY TRIAL

COMPLAINT

ANA P. GARCIA (“Plaintiff”), by and through her attorneys, KIMMEL & 

SILVERMAN, P.C., allege the following against CAPITAL ONE BANK (USA), N.A. 

(“Defendant”):

INTRODUCTION

1. Plaintiff’s Complaint is based on the Telephone Consumer Protection Act, 47 

U.S.C. § 227 et seq (“TCPA”) and the Florida Consumer Collection Practices Act, Florida 

Statute §559.55 et seq. (“FCCPA”).

JURISDICTION AND VENUE

2. Jurisdiction of this Court arises pursuant to 28 U.S.C. § 1331. See Mims v. 

Arrow Fin. Services, LLC, 132 S. Ct. 740, 747, 181 L. Ed. 2d 881 (2012).

3. Pursuant to 28 U.S.C. §1367(a), this Court has supplemental jurisdiction over 

Plaintiff’s claims under the Florida Consumer Collection Practices Act, Fla. Stat. (“FCCPA”), § 

559.55, et seq., because those claims share a common nucleus of operative facts with Plaintiff’s 

claims under the TCPA. See LeBlanc v. Unifund CCR Partners, 601 F.3d 1185 (11th Cir. 2010).

Case 1:20-cv-21818-CMA Document 1 Entered on FLSD Docket 05/01/2020 Page 1 of 5
PLAINTIFF’S COMPLAINT

2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

4. Defendant conducts business in the State of Florida, and as such, personal 

jurisdiction is established.

5. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2).

PARTIES

6. Plaintiff is a natural person residing in Miami Beach, Florida 33141. 

7. Plaintiff is a “person” as that term is defined by 47 U.S.C. § 153(39).

8. Plaintiff is a “consumer” or “debtor” as the term is defined by Florida Consumer 

Collection Practices Act, Florida Statute §559.55(8).

9. Defendant is a corporation with its principal place of business located at 1680 

Capital One Drive, McLean, Virginia 22101. 

10. Defendant is a “person” as that term is defined by 47 U.S.C. § 153 (39).

11. Defendant is a “creditor” as the term is defined by Florida Consumer Collection 

Practices Act, Florida Statute §559.55(5).

12. At all relevant times, Defendant acted through its agents, employees, officers, 

members, directors, heirs, successors, assigns, principals, trustees, sureties, subrogees, 

representatives, and insurers.

FACTUAL ALLEGATIONS

13. Plaintiff has a cellular telephone number that he has had for at least two years.

14. Plaintiff has only used this phone as a cellular telephone. 

15. Defendant placed repeated harassing telephone calls to Plaintiff on her cellular 

telephone.

16. When contacting Plaintiff on her cellular telephone, Defendant used an automatic 

telephone dialing system and/or automatic and/or pre-recorded messages.

Case 1:20-cv-21818-CMA Document 1 Entered on FLSD Docket 05/01/2020 Page 2 of 5
PLAINTIFF’S COMPLAINT

3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

17. Plaintiff knew that Defendant’s calls were automated since she would wait during 

a pause or delay at the beginning of a call prior to being transferred or connected to one of 

Defendant’s representatives. 

18. Defendant’s telephone calls were not made for “emergency purposes.”

19. Shortly after call started, Plaintiff spoke to Defendant and told Defendant to stop 

calling. 

20. Despite Plaintiff’s revocation of consent, Defendant persisted in calling her.

21. Defendant’s incessant calls were exasperating and aggravating to Plaintiff. 

22. Upon information and belief, Defendant conducts its business in a manner that 

violates the Telephone Consumer Protection Act. 

COUNT I

DEFENDANT VIOLATED THE 

TELEPHONE CONSUMER PROTECTION ACT

23. Plaintiff incorporates the forgoing paragraphs as though the same were set forth at 

length herein.

24. Defendant initiated multiple automated telephone calls to Plaintiff’s cellular 

telephone using an automated message and/or prerecorded voice and/or automatic telephone 

dialing system.

25. Defendant’s calls to Plaintiff were not made for “emergency purposes.” 

26. Defendant’s calls to Plaintiff were not made with Plaintiff’s prior express consent, 

as any consent Defendant may have thought it had to call Plaintiff was revoked when Plaintiff 

repeatedly told Defendant to stop calling her. 

27. Defendant’s acts as described above were done with malicious, intentional, 

Case 1:20-cv-21818-CMA Document 1 Entered on FLSD Docket 05/01/2020 Page 3 of 5
PLAINTIFF’S COMPLAINT

4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

willful, reckless, wanton and negligent disregard for Plaintiff’s rights under the law and with the 

purpose of harassing Plaintiff. 

28. The acts and/or omissions of Defendant were done unfairly, unlawfully, 

intentionally, deceptively and fraudulently and absent bona fide error, lawful right, legal defense, 

legal justification or legal excuse.

29. As a result of the above violations of the TCPA, Plaintiff has suffered the losses 

and damages as set forth above entitling Plaintiff to an award of statutory, actual and trebles 

damages. 

COUNT II

DEFENDANT VIOLATED 

THE FLORIDA CONSUMER COLLECTION PRACTICES ACT

30. Plaintiff incorporates the foregoing paragraphs as though the same were set forth 

at length herein. 

31. Any person attempting to collect a consumer debt violates § 559.72(7) by 

willfully communicating with the debt with such frequency as can reasonably be expected to 

harass the debtor or willfully engaging in other conduct which can be reasonable excepted to 

abuse or harass, the debtor, such as causing a telephone to ring or engaging any person in 

telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass.

32. Defendant violated § 559.72(7) when it placed repeated and continuous telephone 

calls to Plaintiff despite knowing its calls were unwanted.

Case 1:20-cv-21818-CMA Document 1 Entered on FLSD Docket 05/01/2020 Page 4 of 5
PLAINTIFF’S COMPLAINT

5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, ANA P. GARCIA, respectfully prays for a judgment as 

follows:

a. Statutory damages of $1,000.00 pursuant to Florida Consumer Collection 

Practices Act, Fla. Stat. §559.77; and

b. Costs and reasonable attorneys’ fees pursuant to Florida Consumer Collection 

Practices Act, Fla. Stat. §559.77; and 

c. All actual damages suffered pursuant to 47 U.S.C. § 227(b)(3)(A); 

d. Statutory damages of $500.00 per violative telephone call pursuant to 47 

U.S.C. § 227(b)(3)(B);

e. Treble damages of $1,500 per violative telephone call pursuant to 47 U.S.C. 

§227(b)(3); 

f. Injunctive relief pursuant to 47 U.S.C. § 227(b)(3); and 

g. Any other relief deemed appropriate by this Honorable Court.

DEMAND FOR JURY TRIAL

PLEASE TAKE NOTICE that Plaintiff, ANA P. GARCIA, demands a jury trial in this 

case.

RESPECTFULLY SUBMITTED,

Date: 05/01/2020 By: /s/ Amy L. Bennecoff Ginsburg

Amy L. Bennecoff Ginsburg, Esq.

Kimmel & Silverman, P.C.

30 E. Butler Pike

Ambler, PA 19002

Phone: (215) 540-8888

Fax: (877) 788-2864

Email: aginsburg@creditlaw.com

Case 1:20-cv-21818-CMA Document 1 Entered on FLSD Docket 05/01/2020 Page 5 of 5