IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

CHRISTINA TORRES, on behalf )

of herself and all others similarly situated, )

)

Plaintiff, )

)

v. )

)

NATIONAL ENTERPRISE )

SYSTEMS, INC. )

)

Defendant. ) JURY DEMAND

COMPLAINT - CLASS ACTION

1 Plaintiff brings the action for damages, and other legal and equitable remedies,

resulting from the illegal actions of National Enterprise Systems, Inc. (hereinafter referred to as

"Defendant") in negligently, knowingly, and/or willfully contacting Plaintiff on Plaintiff's

cellular telephone without her prior express consent within the meaning of the Telephone

Consumer Protection Act, 47 U.S.C. § 227 et seq. (hereinafter referred to as the "TCPA") and its

practices under the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. ("FDCPA"). The

TCPA prohibits automated telephone calls to cellular telephones without prior express consent.

The FDCPA broadly prohibits conduct which harasses, oppresses or abuses any debtor.

JURISDICTION AND VENUE

2 There Court has jurisdiction under 28 U.S.C. §1331 (general federal question),

§1337, 15 U.S.C. § 1692k(d) (FDCPA), and 47 U.S.C. §227 (TCPA). Venue in the District is

proper because defendant transacts business here.

PARTIES

3 Plaintiff Christina Torres is, and at all times mentioned herein was, an individual

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citizen of the State of Illinois, who resides in the district.

4 Defendant is an Ohio corporation that maintains its headquarters at 29125 Solon

Road, Solon, OH 44139. Defendant provides collection services on millions of defaulted

accounts including from individual consumers in Illinois.

5 Defendant regularly uses the mail and telephone to attempt to collect consumer

debt and is a debt collector under the FDCPA. 

THE TELEPHONE CONSUMER PROTECTION ACT OF 1991 (TCPA), 47 U.S.C. § 227

6 In 1991, Congress enacted the Telephone Consumer Protection Act, 47 U.S.C. §

227 (TCPA), in response to a growing number of consumer complaints regarding certain

telemarketing practices.

7 The TCPA regulates, among other things, the use of automated telephone

equipment, or "auto-dialers." Specifically, the plain language of section 227(b)(1)(A)(iii)

prohibits the use of auto-dialers to make any call to a wireless number in the absence of an

emergency or the prior express consent of the called party. 

8 According to findings by the Federal Communication Commission ("FCC"), the

agency Congress vested with authority to issue regulations implementing the TCPA, such calls

are prohibited because, as Congress found, automated or prerecorded telephone calls are a

greater nuisance and invasion of privacy than live solicitation calls, and such calls can be costly

and inconvenient. The FCC also recognized that wireless customers are charged for incoming

calls whether they pay in advance or after the minutes are used.

9 On January 4, 2008, the FCC released a Declaratory Ruling wherein it confirmed

that autodialed and prerecorded message calls to a wireless number by a creditor (or on behalf of

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a creditor) are permitted only if the calls are made with the "prior express consent" of the called

party. The FCC "emphasize[d] that prior express consent is deemed to be granted only if the

wireless number was provided by the consumer to the creditor, and that such number was

provided during the transaction that resulted in the debt owed."

FACTS RELATING TO TCPA CLAIMS

10 At all times relevant, plaintiff was an individual residing in the State of Illinois.

Plaintiff is, and at all times mentioned herein was, a "person" as defined by 47 U.S.C. § 153(10).

11 "During the transaction that resulted in the debt owed," plaintiff did not provide

her wireless number to Defendant.

12 Defendant is, and at all times mentioned herein was, a corporation and a "person",

as defined by 47 U.S.C. § 153(10).

13 Defendant contacted Plaintiff on Plaintiff's cellular telephone. Plaintiff received

numerous calls from defendant on her cellular phone in or around December 2011 and January

2012.

14 Many of the calls that Defendant placed to Plaintiff’s cellular telephone used a

pre-recorded voice message.

15 Upon information and belief, the telephone contact by Defendant to Plaintiff on

her cellular telephone occurred via an "automatic telephone dialing system," as defined by 47

U.S.C. § 227(a)(1) and FCC Regulations, and all calls that are the subject of the complaint

occurred within four years of the filing of the complaint.

16 The telephone number that Defendant used to contact plaintiff, with an "automatic

telephone dialing system," was assigned to a cellular telephone service as specified in 47 U.S.C.

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§ 227(b)(1)(A)(iii).

17 The complained of telephone calls constituted calls not for emergency purposes as

defined by 47 U.S.C. § 227(b)(1)(A)(i).

18 Plaintiff did not provide "express consent" allowing Defendant to place telephone

calls to Plaintiff's cellular phone utilizing an "automatic telephone dialing system," within the

meaning of 47 U.S.C. § 227(b)(1)(A).

19 Defendant did not make telephone calls to Plaintiff's cellular phone "for

emergency purposes" placed by an "automatic telephone dialing system," as described in 47

U.S.C. § 227(b)(1)(A).

20 Defendant's telephone calls to Plaintiff's cellular phone were placed by an

"automatic telephone dialing system" for non-emergency purposes and in the absence of

plaintiff's prior express consent violated 47 U.S.C. § 227(b)(1)(A).

21 Under the TCPA and pursuant to the FCC's January 2008 Declaratory Ruling, the

burden is on Defendant to demonstrate that Plaintiff provided express consent within the

meaning of the statute, because it is the best entity to determine how numbers were attained.

FACTS RELATING TO FDCPA CLAIM

22 On or around January 13, 2012, Defendant telephoned Plaintiff at Plaintiff's place

of employment.

23 On or around January 13, 2012, Plaintiff telephoned Defendant in response to the

above referenced telephone call.

24 During this communication, Defendant notified Plaintiff that Defendant was

attempting to collect a past due amount owed for Plaintiff's husband's student loan.

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25 During this communication, Plaintiff agreed to make a one-time payment of

$400.00 on January 31, 2012.

26 On January 24, 2012, Defendant sent a letter to Plaintiff confirming that the above

referenced payment would be withdrawn on January 31, 2012.

27 In this letter Defendant further notified Plaintiff that Defendant intended to

withdraw an additional payment of $2,295.53 on February 29, 2012.

28 On or around January 24, 2012, Plaintiff telephoned Defendant in response to the

above referenced letter to notify Defendant that she did not authorize Defendant to process the

February 29, 2012 payment.

29 Despite Plaintiff explicitly notifying Defendant that she did not authorize the

February 29, 2012 payment, Defendant withdrew a payment of $2,295.53 on February 29, 2012. 

COUNT I - TCPA (CELLULAR CALLS)

30 Plaintiff incorporates the above factual allegations herein. 

31 Defendant made automated telephone calls to the wireless telephone numbers of

Plaintiff and the other members of the class using equipment that, upon information and belief,

had the capacity to store or produce telephone numbers to be called, using a random or

sequential number generator.

32 These phone calls were made without the prior express consent of Plaintiff or the

class.

33 Defendant has therefore violated the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii), which

makes it unlawful for any person within the United States . . . to make any call (other than a call

made for emergency purposes or made with the prior express consent of the called party) using

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any automatic telephone dialing system or an artificial or prerecorded voice . . ." As a result of

defendant's illegal conduct, the members of the class suffered actual damages and, under section

227(b)(3)(B), are each entitled to, inter alia, a minimum of $500.00 in damages for each such

violation of the TCPA.

34 Because Defendant's misconduct was willful and knowing, the Court should

pursuant to section 227(b)(3)(C), treble the amount of statutory damages recoverable by the

plaintiff and the class. 

35 Plaintiff and class members are also entitled to and do seek injunctive relief

prohibiting Defendant's violation of the TCPA in the future.

CLASS ALLEGATIONS

36 Plaintiff proposes the following class definition, subject to amendment as

appropriate: 

(1) all persons within the United States or its territories (2) who, on or after March 21,

2008 (3) received a non-emergency telephone call from Defendant to a cellular telephone

through the use of an automatic telephone dialing system or an artificial or prerecorded voice

and (4) where defendant's records do not show that the person provided the number to the

defendant or the original creditor (for example, where the number was obtained through skip

tracing or captured by the defendant's equipment from an inbound call). 

37 Plaintiff does not know the exact number of members in the Class, but based upon

defendant's size and national scope, plaintiff reasonably believes that class members number at

minimum in the thousands.

38 Plaintiff and all members of the class have been harmed by the acts of Defendant.

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39 The Class Action Complaint seeks money damages and injunctive relief.

40 The joinder of all class members is impracticable due to the size and relatively

modest value of each individual claim. The disposition of the claims in a class action will

provide substantial benefit the parties and the Court in avoiding a multiplicity of identical suits.

The class can be identified easily through records maintained by defendant.

41 There are questions of law and fact common to the members of the classes, which

common questions predominate over any questions that affect only individual class members.

Those common questions of law and fact include, but are not limited to, the following:

a. Whether, beginning on March 21, 2008, Defendant made nonemergency calls

to plaintiff and class members' cellular telephones using an automatic telephone dialing system

or an artificial or prerecorded voice;

b. Whether Defendant can meet its burden of showing it obtained prior express

consent (i.e., consent that is clearly and unmistakably stated), during the transaction that resulted

in the debt owed, to make such calls;

c. Whether Defendant's conduct was knowing and/or willful;

d. Whether Defendant is liable for damages, and the amount of such damages; and

e. Whether Defendant should be enjoined from engaging in such conduct in the

future.

42 As a person who received numerous and repeated telephone calls using an

automatic telephone dialing system or an artificial or prerecorded voice, without her prior

express consent within the meaning of the TCPA, plaintiff asserts claims that are typical of each

class member. Plaintiff will fairly and adequately represent and protect the interests of the class,

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and she has no interests which are antagonistic to any member of the class.

43 Plaintiff has retained counsel experienced in handling class action claims

involving violations of federal and state consumer protection statutes such as the TCPA.

44 A class action is the superior method for the fair and efficient adjudication of the

controversy. Class wide relief is essential to compel defendant to comply with the TCPA. The

interest of class members in individually controlling the prosecution of separate claims against

Defendant is small because the statutory damages in an individual action for violation of the

TCPA are small. Management of these claims is likely to present significantly fewer difficulties

than are presented in many class claims because the calls at issue are all automated and the class

members, by definition, did not provide the prior express consent required under the statute to

authorize calls to their cellular telephones.

45 Defendant has acted on grounds generally applicable to the class, thereby making

final injunctive relief and corresponding declaratory relief with respect to the class as a whole

appropriate. Moreover, on information and belief, plaintiff alleges that the TCPA violations

complained of herein are substantially likely to continue in the future if an injunction is not

entered.

WHEREFORE, Plaintiff requests that the Court enter judgment in favor of plaintiff and

the class members and against defendant for:

a. As a result of Defendant's negligent violations of 47 U.S.C. § 227(b)(1),

Plaintiff seeks for herself and each Class member $500.00 in statutory damages for each and

every call that violated the TCPA; 

b. As a result of Defendant's willful and/or knowing violations of 47 U.S.C.

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§227(b)(1), Plaintiff seeks for herself and each Class member treble damages, as provided by

statute, of up to $1,500.00 for each and every call that violated the TCPA;

c. Injunctive relief prohibiting such violations of the TCPA by Defendant in the

future;

d. An award of attorneys' fees and costs to counsel for Plaintiff and the Class;

e. An order certifying the action to be a proper class action pursuant to Federal

Rule of Civil Procedure 23, establishing an appropriate Class and any Subclasses the Court

deems appropriate, finding that Plaintiff is a proper representative of the Class, and appointing

the lawyers and law firms representing Plaintiff as counsel for the Class;

f. Such other relief as the Court deems just and proper.

COUNT II - FDCPA (INDIVIDUAL CLAIM)

46 Plaintiff incorporates the above factual allegations herein. 

47 On or around February 29 2012, Defendant took $2,295.53 from Plaintiff's bank

account without Plaintiff's authorization.

48 Defendant violated the FDCPA, 15 U.S.C. § 1692f, by processing an

unauthorized payment from Plaintiff's bank account.

49 Plaintiff was damaged by Defendant’s actions as Defendant took Plaintiff’s

money.

WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and

against Defendant for:

a. Statutory damages;

b. Attorney's fees, litigation expenses and costs of suit;

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c. Such other or further relief as the Court deems appropriate. 

 Respectfully submitted,

/s/ Keith J. Keogh

One of Plaintiff's attorneys

Keith J. Keogh

Craig Shapiro

Timothy Sostrin

Keogh Law, Ltd.

101 North Wacker Drive, Suite 605

Chicago, Illinois 60606

312.726.1092 (office)

312.726.1093 (fax)

Keith@KeoghLaw.com

JURY DEMAND

Plaintiff demands trial by jury.

/s/ Keith J. Keogh

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