UNITED STATES DISTRICT COURT

IN THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Case No. 2:15­cv­11717­SJM­MKM

LAKISHA T SMITH,

Plaintiff, Hon. Stephen J. Murphy, III

Hon. Magistrate Mona K. Majzoub

v.

STELLAR RECOVERY, INC;

COMCAST CORPORATION;

COMCAST OF DETROIT, LLC,

Defendant(s).

_____________________________________/

FIRST AMENDED COMPLAINT & JURY DEMAND

Plaintiff LaKisha T Smith through counsel Stephen A. Thomas, PLC, by

Stephen A. Thomas states the following claims for relief:

INTRODUCTION

1. Plaintiff is suing because Defendant Stellar Recovery, Inc, as a debt collector,

harassed the Plaintiff with robocalls on behalf of the Defendant Comcast Corporation

after Plaintiff 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.

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

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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 Stellar Recovery, Inc’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.

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 LaKisha T Smith is a natural person who resides in the City of Detroit,

County of Wayne, State of Michigan, and is a “consumer” as that term is defined by 15

U.S.C. § 1692a(3).

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8. Defendant Stellar Recovery, Inc ("Stellar") is a Montana 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 Comcast Holdings Corporation (“Comcast”), is a Pennsylvania

business entity with an address of 1701 John F. Kennedy Boulevard Floor 32 (One

Comcast Center), Philadelphia, Pennsylvania 19103, and is a “person” as the term is

defined by 47 U.S.C. § 153(39).

10. Defendant Comcast of Detroit, LLC, is a Michigan general partnership business

entity with a registered agent and mailing address of The Corporation Company 30600

Telegraph Road, Ste 2345, Bingham Farms, MI 48025, and is a “person” as the term is

defined by 47 U.S.C. § 153(39).

VENUE

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

Wayne County.

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

GENERAL ALLEGATIONS

13. Defendant Comcast is a national corporation that regularly conducts business in

Michigan.

14. Defendant Comcast hired Defendant Stellar to collect debts allegedly due to it.

15. The acts of Defendant Stellar relating to the Plaintiff were conducted on behalf of

Defendant Comcast, and with the consent, approval, and/or ratification of the Defendant

Comcast.

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16. The Plaintiff LaKisha Smith alleges that at all times herein mentioned, Defendant

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

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

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

severally.

17. 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 cellular telephone bill.

18. Within four years immediately preceding the filing of this complaint, Defendants

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

repeatedly and willfully placed calls into Michigan to Plaintiff LaKisha T. Smith’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).

Telephone Consumer Protection Act (“TCPA”)

19. At all times relevant to this complaint, Plaintiff LaKisha T. Smith was and is a

“person”

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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. 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. That on May 6, 2014, Plaintiff LaKisha T Smith filed a Chapter 7

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Bankruptcy Case Number 14−47908−pjs and listed Defendant Stellar Recovery, Inc.,

with address of 4500 Salisbury Rd Ste 10, Jacksonville, Florida 32216. Exhibit A.

24. That Defendants attempted to collect a debt from a 2009 Comcast bill in late May

2014, a debt which had been included in Plaintiff LaKisha T Smith’s bankruptcy.

25. That Plaintiff LaKisha T Smith received her Chapter 7 Bankruptcy discharge on

August 12, 2014. See Exhibit B.

26. Defendant Comcast hired Defendant Stellar to collect debts allegedly

owed to it.

27. Defendant Stellar made numerous Robo calls to Plaintiff LaKisha T Smith after

the bankruptcy filing to her private cell phone number 313­718­XXXX.

28. Defendant Stellar Robo called Plaintiff Lakisha T. Smith numerous times using

number 313­483­8518 to collect on behalf of Defendant Comcast. Exhibit C.

29. Plaintiff Lakisha T. Smith called number 313­483­8518 and Defendant Stellar

Representative indicated the previous call was regarding a Defendant Comcast past

due bill.

30. Defendant Stellar also Robo called Plaintiff Lakisha T. Smith numerous times

using number 1­877­236­5791 to collect on behalf of Defendant Comcast. Exhibit D.

31. On Defendant Stellar website, number 1­877­236­5791 is listed as the Payment

by telephone number. Exhibit E.

32. The acts of Defendant Stellar relating to the Plaintiff were conducted on

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

of the Defendants Comcast.

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33. Plaintiff LaKisha T. Smith alleges that at all times herein mentioned, Defendant

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

Defendant Comcast, 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 Defendants. Any reference hereinafter to “Defendant”

or “Defendants” without further qualification is meant to refer to each and all

Defendants herein jointly and severally.

34. Within four years immediately preceding the filing of this lawsuit, Defendants and

their agents telephoned Plaintiff LaKisha T. Smith’s cellular telephones on numerous

occasions in violation of the TCPA.

35. Without Plaintiff LaKisha T. Smith’s prior express consent, Defendants and its

collectors and agents repeatedly used an automatic telephone dialing system to call

Plaintiff LaKisha T. Smith’s cellular telephones in an attempt to collect this debt.

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

because Defendants never obtained Plaintiff LaKisha T. Smith’s prior express consent,

and had no basis to believe that they had Plaintiff LaKisha T. Smith’s prior express

consent.

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

Defendant Stellar or its collectors.

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38. Defendants’ repeated autodialed collection calls to Plaintiff LaKisha T. Smith’s

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

third party attempts to collect this debt in violation of the TCPA, 47 U.S.C. §227 et seq.

39. Defendant Stellar’s repeated autodialed collection calls to Plaintiff LaKisha T.

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

illegal third party 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.

Summary

40. All of the above­described collection communications made to Plaintiff LaKisha

T. Smith by Defendants and other collection employees employed by Defendant Stellar,

were made in violation of numerous and multiple provisions of the FDCPA, including but

not limited to all of the above mentioned provisions, amongst others, as well as an

invasion of her privacy by the use of repeated calls.

41. The Defendants’ actions as described herein left Plaintiff LaKisha T. Smith

feeling helpless and victimized, as she was unable to stop the persistent and intrusive

telephoning by these Defendants.

42. Defendants’ persistent autodialed calls eliminated Plaintiff LaKisha T. Smith’s

right to be left alone.

43. Defendants’ persistent autodialed collection calls eliminated the peace and

solitude that Plaintiff LaKisha T. Smith would have otherwise had.

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44. Defendants’ actions constituted unauthorized use of, and interference with

Plaintiff LaKisha T. Smith’s cellular telephone service associated with her private cell

phone number for which Plaintiff LaKisha T. Smith paid money.

45. Plaintiff LaKisha T. Smith was charged money for each call that Defendant made

to Plaintiff LaKisha T. Smith’s cellular phones.

46. Plaintiff Lakisha T. Smith has had an exacerbation of her health problems

including sleepless nights, headaches, and panic attacks due to the illegal actions of

these Defendants.

TRIAL BY JURY

47. Plaintiff LaKisha T. Smith 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.

48. Plaintiff LaKisha T. Smith incorporates the preceding allegations by reference.

49. At all relevant times Defendant Stellar, in the ordinary course of its business,

regularly engaged in the practice of collecting debts on behalf of other individuals or

entities.

50. Plaintiff LaKisha T. Smith is a "consumer" for purposes of the FDCPA and the

account at issue in this case is a consumer debt.

51. Defendant Stellar is a "debt collector" under the Fair Debt Collection Practices

Act ("FDCPA"), 15 U.S.C. § 1692a(6).

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52. Defendant Stellar’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.

53. 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.

54. Plaintiff LaKisha T. Smith incorporates the preceding allegations by reference.

55. Defendant Stellar is a "collection agency" as that term is defined in the Michigan

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

56. Plaintiff LaKisha T. Smith is a “debtor” as that term is defined in M.C.L. §

339.901(f).

57. Defendant Stellar’s foregoing acts in attempting to collect this debt violated

M.C.L. § 339.915.

58. Plaintiff La Kisha T. Smith has suffered damages as a result of these violations of

the Michigan Occupational Code.

59. These violations of the Michigan Occupational Code by Defendant Stellar were

willful.

COUNT III ­ VIOLATION OF THE

MICHIGAN COLLECTION PRACTICES ACT.

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60. Plaintiff LaKisha T. Smith incorporates the preceding allegations by reference.

61. Defendant Stellar is a "regulated person" as that term is defined in the Michigan

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

62. Plaintiff LaKisha T. Smith is a "consumer" as that term is defined at M.C.L. §

445.251.

63. Defendant Stellar’s foregoing acts in attempting to collect this debt violated

M.C.L. § 445.252.

64. Plaintiff LaKisha T. Smith has suffered damages as a result of these violations of

the MCPA.

65. These violations of the MCPA by Defendant Stellar were willful.

COUNT IV ­ VIOLATION OF THE

FEDERAL TELEPHONE CONSUMER PROTECTION ACT.

47 U.S.C. § 227 et seq. against both Defendants

66. Plaintiff LaKisha T. Smith incorporates the preceding allegations by reference.

67. Within the one year period immediately preceding this action, the Defendants

made numerous calls to Plaintiff LaKisha T. Smith’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).

68. 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.

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69. 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 LaKisha T. Smith to sustain damages.

70. Defendants did not have the necessary prior express consent of Plaintiff LaKisha

T. Smith to use an automatic telephone dialing system to call Plaintiff LaKisha T.

Smith’s cellular telephone.

71. Under the 47 U.S.C. Section 227(b)(3)(B), Plaintiff LaKisha T. Smith is entitled to

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

LaKisha T. Smith.

72. Defendants willfully and knowingly violated the TCPA, and as such Plaintiff

LaKisha T. Smith is entitled to $1,500.00 per telephone call made to the Plaintiff

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

73. Plaintiff LaKisha T. Smith is entitled to injunctive relief prohibiting Defendants

from contacting Plaintiff LaKisha T. Smith on her cellular telephone using an automated

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

74. Defendant Comcast is responsible and liable for the Defendant Stellar’s

violations of the TCPA pursuant to the FCC Rules implementing the TCPA.

COUNT V – INVASION OF PRIVACY BY INTRUSION UPON SECLUSION.

75. Plaintiff LaKisha T. Smith incorporates the preceding allegations by reference.

76. 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

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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."

77. Michigan further recognizes Plaintiff Lakisha T. Smith’s right to be free from

invasions of privacy, thus Defendant violated Michigan state law.

78. The Defendant intentionally intruded upon Plaintiff LaKisha T. Smith’s right to

privacy by continually harassing Plaintiff LaKisha T. Smith with an excessive amount of

calls to her cell phone.

79. The telephone calls made by Defendants to Plaintiff LaKisha T. Smith were so

persistent and repeated with such frequency as to be considered, "hounding the

plaintiff" and, "a substantial burden to their existence" thus satisfying the Restatement of

Torts, Second, §652(b) requirement for an invasion of privacy.

80. The conduct of the Defendants 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.

81. As a result of the intrusions and invasions, Plaintiff LaKisha T. Smith is entitled to

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

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

wantonness, and recklessness, and as such, Plaintiff LaKisha T. Smith is entitled to

punitive damages.

DEMAND FOR JURY TRIAL

Plaintiff demands trial by jury in this action.

DEMAND FOR JUDGMENT FOR RELIEF

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

the Defendant:

COUNT I.

VIOLATIONS OF THE

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

AGAINST DEFENDANT STELLAR

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

Defendant Stellar and for Plaintiff LaKisha T. Smith;

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

§1692k(a)(2)(A) against Defendant Stellar and for Plaintiff LaKisha T. Smith;

● for an award of costs of litigation and reasonable attorney’s fees pursuant to 15

U.S.C. § 1692k(a)(3) against Defendant Stellar and for Plaintiff LaKisha T. Smith.

COUNT II.

VIOLATIONS OF THE MICHIGAN OCCUPATIONAL CODE

AGAINST DEFENDANT STELLAR

● 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.

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VIOLATIONS OF THE

MICHIGAN COLLECTION PRACTICES ACT

AGAINST DEFENDANT STELLAR

● 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

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 LaKisha T. Smith;

● 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 LaKisha T. Smith;

● for an injunction prohibiting Defendants from contacting Plaintiff LaKisha T. Smith

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

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

COUNT V.

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

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

trial and for Plaintiff LaKisha T. Smith.

Respectfully submitted,

/s/ Stephen A. Thomas

July 14, 2015 STEPHEN A. THOMAS P43260

Attorney for Plaintiff

645 Griswold St., Suite 1360

Detroit, Michigan 48226

313­965­2265

sthomas@313965bank.com

CERTIFICATE OF SERVICE

I, Stephen A. Thomas, declare under penalty of perjury that on July 14, 2015 the

foregoing document was filed using the Court’s ECF system and all counsel of record

will receive notice.

/s/ Stephen A. Thomas

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