UNITED STATES DISTRICT COURT

IN THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DETRUS TERRELL,

Plaintiff,

vs.

ABILITY RECOVERY, SERVICES, LLC;

WALDEN UNIVERSITY

Defendants.

_____________________________________/

COMPLAINT & JURY DEMAND

Plaintiff, Detrus Terrell through counsel, Stephen A. Thomas, PLC, by

Stephen A. Thomas states the following claims for relief:

INTRODUCTION

1. Plaintiff is suing because Defendant Ability Recovery Services, LLC, as

a debt collector, harassed the Plaintiff with collection letters and robo­calls on

behalf of the Defendant Walden University after she discharged the debt in

bankruptcy.

2. Defendants persistently utilized a robo caller to call the Plaintiff’s cellular

telephone, violating the Plaintiff’s privacy rights afforded under federal law.

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3. The United States Supreme Court has recognized a citizen’s home as

“the last citadel of the tired, the weary, and the sick," Gregory v. Chicago, 394

U.S. 111, 125 (1969), and has noted that “[p]reserving the sanctity of the home,

the one retreat to which men and women can repair to escape from the

tribulations of their daily pursuits, is surely an important value.” Carey v. Brown,

447 U.S. 455, 471(1980).

JURISDICTION

4. 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 and the TCPA claims, which are predicated upon the same facts and

circumstances that give rise to the federal causes of action. Injunctive relief is

available pursuant to the TCPA.

5. This action arises out of Defendant Ability Recovery Services, LLC’s

repeated violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et

seq. (“FDCPA”), out of both Defendants violations of the Telephone Consumer

Protection Act (“TCPA”), 47 U.S.C. § 227 et seq. and out of the invasions of

Plaintiff’s personal privacy by both Defendants and their agents in their illegal

efforts to collect a consumer debt.

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6. Venue is proper in this District because the acts and transactions

occurred here, Plaintiff resides here, and all Defendants transact business here as

part of their continuing debt collection activities.

PARTIES

7. Plaintiff Detrus Terrell is a natural person who resides in the City of Ann

Arbor, County of Washtenaw, State of Michigan, and is a “consumer” as that

term is defined by 15 U.S.C. § 1692a(3).

8. Defendant Ability Recovery Services, LLC (“Ability ”) is a Pennsylvania

corporation with minimum contacts in the State of Michigan and is a “debt

collector” as defined by 15 U.S.C. § 1692a(6).

9. Defendant Walden University (“Walden”) is a Florida for­profit

corporation which is an original creditor and an institution of higher education

with minimum contacts in Michigan.

VENUE

10. The transactions and occurrences which give rise to this action occurred in

Washtenaw County.

11. Venue is proper in the Eastern District of Michigan.

GENERAL ALLEGATIONS

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12. That Defendants attempted to collect a debt in the amount of $3,403.75, an

amount which had already been discharged in bankruptcy from a non­guaranteed

student loan from a Walden account.

13. That on February 28, 2013, Plaintiff Detrus Terrell filed a Chapter 7

Bankruptcy Case No. 13−43763−mbm and all debts listed and unlisted were

discharged as a matter of law. In Re: Michael K. MADAJ 149 F.3d 467 (6th

Cir. 1998).

14. That Plaintiff Detrus Terrell received her Chapter 7 Bankruptcy discharge

on June 18, 2013.

15. Defendant Walden hired Defendant Ability to collect debts allegedly owed

to it.

16. The acts of Defendant Ability relating to the Plaintiff were conducted on

behalf of Defendant Walden, and with the consent, approval, and/or ratification

of the Defendants Walden .

17. The Plaintiff alleges that at all times herein mentioned, Defendant Ability

was, and is now, the servant, employee, and/or other representative of Defendant

Walden, and in doing the things herein alleged, was acting in the scope, purpose,

and authority of such agency, service, employment, and/or other representative

capacity with the permission, knowledge, consent, and/or ratification of the other

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Defendants. Any reference hereinafter to “Defendant” or “Defendants” without

further qualification is meant to refer to each and all Defendants herein jointly and

severally.

16. Within one year immediately preceding the filing of this complaint,

Defendants attempted to collect from Plaintiff 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), namely, a defaulted

educational loan.

17. Within one year immediately preceding the filing of this complaint,

Defendants and the collectors employed by Defendants, and on behalf of

Defendant Walden, repeatedly and willfully sent collection dunning letters and

placed calls into Michigan to Plaintiff’s personal cellular telephone numbers in an

effort to collect this debt, which were at all relevant times “communication[s]” in

an attempt to collect a debt as that term is defined by 15 U.S.C. § 1692a(2).

18. That Defendants contacted Plaintiff Detrus Terrell through two collection

letters dated October 28, 2013 and February 25, 2014 and made numerous robo

calls to Plaintiff’s private cell phone all of which occurred after she received her

chapter 7 bankruptcy discharge.

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Telephone Consumer Protection Act (“TCPA”)

19. At all times relevant to this complaint, the Plaintiff was and is a “person” as

defined by the TCPA 47 U.S.C. § 153(39) and a subscriber to cellular telephone

services within the United States.

20. At all times relevant to this complaint, the Defendants have used,

controlled, and/or operated “automatic telephone dialing systems” as defined by

the TCPA 47 U.S.C. § 227(a)(1) and 47 C.F.R. 64.1200(f)(1).

21. The Federal Communications Commission (FCC) was given the authority

to issue orders implementing the TCPA. The FCC has issued an order that

states:

The creditors are in the best position to have records kept in the usual course of

business showing such consent, such as purchase agreements, sales slips, and

credit applications. Should a question arise as to whether express consent was

provided, the burden will be on the creditor to show it obtained the necessary

prior express consent. Similarly, a creditor on whose behalf an autodialed or

prerecorded message call is made to a wireless number bears the responsibility

for any violation of the Commission's rules. Calls placed by a third party

collector on behalf of that creditor are treated as if the creditor itself placed the

call. In re Rules Implementing the Tel. Consumer Prot. Act of 1991, 23 FCC

Rcd 559, 565 (F.C.C. 2007), paragraph 10. (Bold underline added. Footnotes

omitted)

22. The Seventh Circuit has ruled that due to the Hobbs Act, the FCC Order

cannot be challenged in the District Courts. CE Design, Ltd. v. Prism Bus.

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Media, Inc., 606 F.3d 443 (7th Cir. Ill. 2010). This Court has ruled that because

of the Seventh Circuit’s ruling in CE Design, it “borders on frivolous” to attempt

to challenge this FCC Order in a District Court. Nelson v. Santander Consumer

USA, Inc., 931 F. Supp. 2d 919, 928­929 (W.D. Wis. 2013)(vacated after

settlement).

23. Within four years immediately preceding the filing of this lawsuit,

Defendants and their agents telephoned the Plaintiff’s cellular telephones on

numerous occasions in violation of the TCPA.

24. Without Plaintiff’s prior express consent, Defendants and its collectors

and agents repeatedly used an automatic telephone dialing system to call

Plaintiff’s cellular telephones in an attempt to collect this debt.

25. All calls and messages were sent in willful violation of the TCPA and the

FDCPA because Defendants never obtained the Plaintiff’s prior express consent,

and had no basis to believe that they had the Plaintiff’s prior express consent.

26. Plaintiff has never given out either of her cellular telephone numbers to

Defendant Ability or its collectors.

27. Defendants’ repeated autodialed collection calls to Plaintiff’s cellular

telephones, within the last four years prior to filing this complaint, were illegal

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third­party attempts to collect this debt in violation of the TCPA, 47 U.S.C. §

227 et seq.

28. Defendant Ability ’s repeated autodialed collection calls to Plaintiff’s

cellular telephones, within the last one year prior to filing this complaint, were

illegal third­party attempts to collect this debt in violation of numerous and

multiple provisions of the FDCPA, including but not limited to 15 U.S.C. §§

1692c(a)(1), 1692c(b), 1692d, 1692d(5), 1692e, 1692e(5), 1692e(10), 1692b(1),

1692b(3), 1692f, and 1692f(1), amongst others.

TRIAL BY JURY

29. Plaintiff is entitled to and hereby respectfully demands a trial by jury on all

issues so triable. US Const. amend. 7. Fed.R.Civ.P. 38.

COUNT I – VIOLATION OF THE

FAIR DEBT COLLECTION PRACTICES ACT.

30. Plaintiff incorporates the preceding allegations by reference.

31. At all relevant times Defendant Ability, in the ordinary course of its

business, regularly engaged in the practice of collecting debts on behalf of other

individuals or entities.

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32. Plaintiff is a "consumer" for purposes of the FDCPA and the account at

issue in this case is a consumer debt.

33. Defendant Ability is a "debt collector" under the Fair Debt Collection

Practices Act ("FDCPA"), 15 U.S.C. § 1692a(6).

34. Defendant Ability ’s foregoing acts as described more fully herein of

illegally attempting to collect this debt violated numerous and multiple provisions

of the FDCPA, including but not limited to 15 U.S.C. §§ 1692d, 1692d(6),

1692e, 1692e(2), 1692e(4), 1692e(5), 1692e(8), 1692e(10), 1692f, and 1692f(1),

amongst others.

35. Plaintiff has also suffered actual damages, economic damages, emotional

damages, general damages and statutory damages as a result of these violations

of the FDCPA.

COUNT II ­ VIOLATION OF THE

MICHIGAN OCCUPATIONAL CODE.

36. Plaintiff incorporates the preceding allegations by reference.

37. Defendant Ability is a "collection agency" as that term is defined in the

Michigan Occupational Code ("MOC"), M.C.L. § 339.901(b).

38. Plaintiff is a “debtor” as that term is defined in M.C.L. § 339.901(f).

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39. Defendant Ability’s foregoing acts in attempting to collect this debt

violated M.C.L. § 339.915.

40. Plaintiff has suffered damages as a result of these violations of the

Michigan Occupational Code.

41. These violations of the Michigan Occupational Code by Defendant Ability

were willful.

COUNT III ­ VIOLATION OF THE

MICHIGAN COLLECTION PRACTICES ACT.

42. Plaintiff incorporates the preceding allegations by reference.

43. Defendant Ability is a "regulated person" as that term is defined in the

Michigan Collection Practices Act ("MCPA"), at M.C.L. § 445.251.

44. Plaintiff is a "consumer" as that term is defined at M.C.L. § 445.251.

45. Defendant Ability ’s foregoing acts in attempting to collect this debt

violated M.C.L. § 445.252.

46. Plaintiff has suffered damages as a result of these violations of the MCPA.

47. These violations of the MCPA by Defendant Ability were willful.

COUNT IV ­ VIOLATION OF THE

FEDERAL TELEPHONE CONSUMER PROTECTION ACT.

47 U.S.C. § 227 et seq. AGAINST BOTH DEFENDANTS

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48. Plaintiff incorporates the preceding allegations by reference.

49. Within the four year period immediately preceding this action, the

Defendants made numerous calls to the Plaintiff’s cellular telephone service using

an automatic telephone dialing system in violation of the TCPA, 47 U.S.C. §

227(b)(1)(A)(iii), and 47 C.F.R. 64.1200 (a)(1)(iii).

50. The acts and or omissions of Defendants at all times material and relevant

hereto, as described in this complaint, were done unfairly, unlawfully,

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

legal justification or legal excuse.

51. As a causally­direct and legally proximate result of the above violations of

the TCPA and the C.F.R., Defendants at all times material and relevant hereto, as

described in this Complaint, caused Plaintiff to sustain damages.

52. Defendants did not have the necessary prior express consent of Plaintiff to

use an automatic telephone dialing system to call the Plaintiff’s cellular telephone.

53. Under the 47 U.S.C. Section 227(b)(3)(B), the Plaintiff is entitled to

statutory damages under the TCPA of $500.00 per telephone call made to

Plaintiff.

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54. Defendants willfully and knowingly violated the TCPA, and as such,

the Plaintiff is entitled to $1,500.00 per telephone call made to the Plaintiff

pursuant to the 47 U.S.C. Section 227(b)(3).

55. Plaintiff is entitled to injunctive relief prohibiting Defendants from

contacting the Plaintiff on her cellular telephone using an automated dialing

system pursuant to the 47 U.S.C. Section 227(b)(3)(a).

56. Defendant Walden is responsible and liable for the Defendant

Ability’s violations of the TCPA pursuant to the FCC Rules implementing the

TCPA.

COUNT V – INVASION OF PRIVACY BY INTRUSION UPON

SECLUSION.

57. Plaintiff incorporates the preceding allegations by reference.

58. The restatement of Torts, Second, § 652(b) defines intrusion upon

seclusion, "One who intentionally intrudes upon the solitude or seclusion of

another, or his private affairs or concerns, is subject to liability to the other for

invasion of privacy, if the intrusion would be highly offensive to the reasonable

person."

59. Michigan further recognizes the Plaintiff’s right to be free from

invasions of privacy, thus Defendant violated Michigan state law.

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60. The Defendant intentionally intruded upon Plaintiff’s right to privacy

by harassing the Plaintiff with calls to her cell phone.

61. The conduct of the Defendant in engaging in the illegal collection

activities resulted in multiple invasions of privacy in such a way as would be

considered highly offensive to a reasonable person.

62. As a result of the intrusions and invasions, the Plaintiff is entitled to

actual damages in an amount to be determined at trial from Defendant.

63. All acts of Defendant and its agents were committed with malice,

intent, wantonness, and recklessness, and as such, Plaintiff is entitled to punitive

damages.

COUNT VI ­ INTENTIONAL (OR NEGLIGENT) INFLICTION OF

EMOTIONAL DISTRESS.

64. Plaintiff incorporates the preceding allegations by reference.

65. The acts, practices and conduct engaged in by the Defendant vis­a­vis

the Plaintiff were so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.

66. The foregoing conduct constitutes the tort of intentional infliction of

emotional distress under the laws of the State of Michigan.

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67. All acts of Defendant were committed with malice, intent, wantonness,

recklessness, and negligence, and as such, Defendant is subject to imposition of

punitive damages.

68. Defendant could reasonably foresee its conduct would cause mental

anguish and severe emotional distress to Plaintiffs.

69. Plaintiff did indeed suffer mental anguish and severe emotional

distress including post­traumatic stress, paranoia, and depression.

DEMAND FOR JURY TRIAL

Plaintiff demands trial by jury in this action.

DEMAND FOR JUDGMENT FOR RELIEF

Wherefore, Plaintiff requests that the Court grant her the following relief

against the Defendant:

COUNT I.

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VIOLATIONS OF THE

FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. § 1692 et seq.

AGAINST DEFENDANT ABILITY

● for an award of actual damages pursuant to 15 U.S.C. § 1692k(a)(1)

against Defendant Ability and for Plaintiff;

● for an award of statutory damages of $1,000.00 pursuant to 15 U.S.C.

§1692k(a)(2)(A) against Defendant Ability and for Plaintiff;

● for an award of costs of litigation and reasonable attorney’s fees pursuant

to 15 U.S.C. § 1692k(a)(3) against Defendant Ability and for Plaintiff;

COUNT II.

VIOLATIONS OF THE MICHIGAN OCCUPATIONAL CODE

AGAINST DEFENDANT ABILITY

● for an award of actual damages, statutory damages, punitive damages (if

the evidence at trial so warrants), actual costs, and attorney’s fees, under

Michigan Occupational Code.

COUNT III.

VIOLATIONS OF THE

MICHIGAN COLLECTION PRACTICES ACT

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AGAINST DEFENDANT ABILITY

● for an award of actual damages, statutory damages, punitive damages (if

the evidence at trial so warrants), actual costs, and attorneys’ fees, under

Michigan Collection Practices Act.

COUNT IV.

VIOLATIONS OF THE

TELEPHONE CONSUMER PROTECTION ACT

47 U.S.C. § 227 et seq.

AGAINST BOTH DEFENDANTS

● for an award of statutory damages of $500.00 per call pursuant to 47

U.S.C. Section 227(b)(3)(B) against Defendants and for Plaintiff;

● for an award of treble damages of $1,500.00 per call pursuant to 47 U.S.C.

Section 227(b)(3) against Defendants and for Plaintiff;

● for an injunction prohibiting Defendants from contacting the Plaintiff on

her cellular telephone using an automated dialing system pursuant to the 47

U.S.C. Section 227(b)(3)(a).

COUNT V.

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INVASION OF PRIVACY BY INTRUSION UPON SECLUSION

AGAINST BOTH DEFENDANTS

● for an award of actual damages from Defendants for the emotional distress

suffered as a result of the intentional and/or negligent FDCPA violations

and intentional and/or negligent invasions of privacy in an amount to be

determined at trial and for Plaintiff;

COUNT VI.

INTENTIONAL (OR NEGLIGENT) INFLICTION OF

EMOTIONAL DISTRESS

AGAINST BOTH DEFENDANTS

● for an award of actual damages from Defendants for the intentional and/or

negligent infliction of emotional distress suffered as a result of the conduct

as described herein, in an amount to be determined at trial and for Plaintiff;

and,

● for such other and further relief as may be just and proper.

Respectfully submitted,

/s/ Stephen A. Thomas

October 27, 2014 STEPHEN A. THOMAS P43260

Attorney for Plaintiff

645 Griswold St., Suite 1360

Detroit, Michigan 48226

313­965­2265

sathomasplccmecf@aol.com

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VFRTFICATION OF COMPLAINT AND CFRTTFTCATIQN

STATE OF MICHIGAN

COUNTY OF WAYNE

)

) ss

)

I, Detrus Terrell, having first been duly sworn and upon oath, depose and

say as follows:

1. I am the Plaintiffin this civil proceeding.

2. I have read the above-entitled civil Complaint prepared by my attorney, and

I believe that all ofthe facts contained in it are true, to the best ofmy knowledge,

information and beliefformed after reasonable inquiry.

3. Ibelieve that this civil Complaint is well grounded in fact and warranted by

existing law or by agood faith argument for the extension, modification, or

reversal of existing law.

4. I believe thatthis civil Complaint isnot interposed for any improper

purpose, such as to harass any Defendant(s), cause unnecessary delay to any

Defendant(s), or create a needless increase in the cost oflitigation to any

Defendant(s), named in theComplaint.

5. I have filed this civil Complaint in good faith and solely for the purposes set

forth in it.

6. Each and every exhibit I have provided to my attorney which has been

attached to this Complaint is a true and correct copy ofthe original. 7. Except for clearly indicated redactions made by my attorney where

appropriate, Ihave not altered, changed, modified, or fabricated these exhibits,

except that some ofthe attached exhibits may contain some ofmy own

handwritten notations.

£fotaryrubli

I 8t*hsn A. Thomas, Notary Putottc

£ StttaolMicWpan, County ofWaynt ' * My Commission Exp*

ActtogInthe Countyof.

at the foregoing is true and correct.

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