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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

BREE MCCLESKEY, §

Plaintiff §

§

§

§

v. § CASE NUMBER: 1:20-cv-00166-ML

§

§

§

TOLTECA ENTERPRISES, INC. §

D/B/A THE PHOENIX RECOVERY §

GROUP, §

& SINGER MANAGEMENT, LLC, §

& GEORGETOWN PLACE, LTD. §

a/k/a GEORGETOWN PLACE §

APARTMENTS, §

& TRAVELERS CASUALTY §

AND SURETY COMPANY OF §

AMERICA, §

Defendants § DEMAND FOR JURY TRIAL

. §

PLAINTIFF’S FIRST AMENDED COMPLAINT

TO THE HONORABLE UNITED STATES DISTRICT COURT:

Plaintiff, Bree McCleskey (“Plaintiff” or “McCleskey” herein), brings this action against 

Defendants, Tolteca Enterprises, Inc. d/b/a The Phoenix Recovery Group ("Phoenix" or 

“Defendant” herein), Singer Management, LLC (“Singer Management” herein), Georgetown 

Place, LTD. a/k/a Georgetown Place Apartments (“Georgetown Place” herein), and

Travelers Casualty & Surety Company of America (“Travelers” herein) and will show as

follows:

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PRELIMINARY STATEMENT

1. This is an action under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et 

seq. ("FDCPA") as well as under the Texas Debt Collection Act, Texas Finance Code 

Chapter 392 ("TDCA"), to obtain damages, and other relief for the Defendants’ violations of the 

FDCPA and TDCA.

JURISDICTION AND VENUE

2. This Court has subject-matter jurisdiction over this matter pursuant to 

28 U.S.C. § 1331 and § 1337(a) and 15 U.S.C. § 1692 et seq..

3. Venue is proper in the United States District Court for the Western District of

Texas, Austin Division, under 28 U.S.C. § 1391(b)(2) because the acts and transactions occurred 

in this district.

STANDING

4. Plaintiff has suffered an injury in fact that is traceable to Defendants’ collective

conduct and that is likely to be redressed by a favorable decision in this matter.

5. Plaintiff further suffered a concrete injury as a result of Defendants’ violations 

contained herein.

6. Plaintiff further suffered a concrete informational injury as a result of Defendants’

failure to provide truthful information in connection with attempts to collect an alleged consumer

debt from Plaintiff.

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THE PARTIES

7. Plaintiff, Bree McCleskey, is an individual who resides in Travis County, Texas.

8. Defendant, Tolteca Enterprises, Inc. d/b/a The Phoenix Recovery Group, 

is a Texas corporation and has made an appearance in this lawsuit.

9. Defendant, Georgetown Place, LTD. a/k/a Georgetown Place Apartments, is 

a creditor and former landlord of Plaintiff and believed to be a Foreign limited partnership which 

can be served at the following address:

Michael Casias (registered agent)

500 East 4th Street, Suite 525

Austin, TX 78701-78701

10. Defendant, Singer Management, LLC, is the property management company and 

agent of Georgetown Place. Plaintiff is in the process of establishing service information.

11. Defendant, Travelers Casualty & Surety Company of America, is a foreign

corporation organized and existing under the laws of the State of Connecticut, whose

principal address is One Tower Square, Hartford, Connecticut 06183, is authorized to do

business in Texas and may be served with process by serving its registered agent,

Corporation Service Company at:

Corporation Service Company

211 E. 7th Street, Ste. 620

Austin, TX 78701-3218

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FACTUAL ALLEGATIONS

12. Plaintiff is a "consumer" as that term is defined by § 1692a(3) of the FDCPA.

13. Plaintiff incurred an alleged debt for goods and services for personal, family 

or household purposes in connection to a residential apartment lease at Georgetown 

Place Apartments (“alleged debt” herein). 

14. Defendant Georgetown Place is the former landlord of Plaintiff and the 

original creditor of the alleged debt.

15. Defendant Singer Management is the property management company and agent for 

Georgetown Place in connection to the underlying transactions that are the basis of 

this complaint.

16. The alleged debt is a “debt” as that term is defined by § 1692a(5) of the FDCPA and 

a "consumer debt" as that term is defined by § 392.001(2) of the TDCA.

17. Due to her financial circumstances, Plaintiff could not pay the alleged debt and the 

alleged debt subsequently went into default.

18. After default, Georgetown Place and Singer Management placed the alleged debt

with Phoenix for collection.

19. Phoenix is a “debt collector” as that term is defined by 15 U.S.C. § 1692a(6) 

of the FDCPA. 

20. Phoenix is a "third-party debt collector" as defined by § 392.001(7) of the TDCA.

21. Georgetown Place is a “debt collector” as defined in § 392.001(6) of the 

TDCA.

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22. Singer Management is a “debt collector” as defined in § 392.001(6) of the 

TDCA.

23. On or about November 1, 2019, Phoenix transmitted to Transunion information 

regarding the alleged debt, which listed the outstanding balance as $11,157.00.

24. On or about January 29, 2020, Phoenix also sent to the undersigned counsel an 

itemized statement (“Statement” herein) of the alleged debt (the Statement is attached 

and incorporated by reference as Exhibit A and partially redacted in accordance with FRCP 5.2). 

25. The Statement indicated a balance due of $11,157.00, whereby approximately 

$9990.00, or nearly 90% of the total balance, was for accelerated future rent related to the lease

termination. The Statement further encouraged Plaintiff to make a payment for the alleged debt.

26. Under Texas, law, a landlord in a residential lease has a statutory duty to mitigate 

damages 1. Consequently, Plaintiff was entitled to a significant credit toward the alleged debt.

27. Plaintiff now has information and belief that Georgetown Place promptly re-let

Plaintiff’s leasehold with a replacement tenant with a higher rental amount, less than 60 

days after Plaintiff vacated the premises.

28. Phoenix has now confirmed (after the filing of Plaintiff’s Original 

Complaint) that it considers the correct balance of the alleged debt to be less than $2500.00.

29. Plaintiff therefore alleges that the transmission of the credit reporting balance of 

$11,157.00 to Transunion by Phoenix was false and misleading.

 

1 Texas Property Code 91.006 

(a) A landlord has a duty to mitigate damages if a tenant abandons the leased premises in violation of the lease.

(b) A provision of a lease that purports to waive a right or to exempt a landlord from a liability or duty under 

this section is void.

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30. The transmission of credit reporting information to Transunion was a 

"communication" as that term is defined in 15 U.S.C. § 1692a(2). 

31. The transmission of credit reporting information to Transunion was a form of "debt 

collection" as that term is defined by § 392.001(5). 

32. Phoenix continued to report an incorrect balance of $11,157.00 to at least 

one credit bureau of Plaintiff, Transunion as recently as February, 2020, which has resulted in 

actual damages to Plaintiff.

33. Phoenix has on file with the Texas Secretary of State a $10,000.00 bond wherein

Travelers is the surety and Phoenix is the principal. The bond is in favor of any person who

is damaged by Phoenix’s violation of Chapter 392 of the Texas Finance Code. Tex.Fin.

Code § 392.101(b)(1). The liability of Travelers as surety may not exceed the amount of

the bond. Tex.Fin. Code § 392.102.

34. Plaintiff alleges that Georgetown Place and Singer Management jointly engaged in 

debt collection of the alleged debt, at the very least, by the assignment of the alleged debt to 

Phoenix and by their collective efforts to control and influence the collection of the alleged debt

from Plaintiff.

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COUNT I—VIOLATION OF THE TEXAS DEBT COLLECTION ACT

35. Plaintiff incorporate all facts as alleged in the foregoing paragraphs.

36. Chapter 392, Section 304 of the Texas Finance Code provides as follows:

FRAUDULENT, DECEPTIVE, OR MISLEADING REPRESENTATIONS

(a) Except as otherwise provided by this section, in debt collection or in 

obtaining information concerning a consumer, a debt collector may not use a 

fraudulent, deceptive, or misleading representation that employs the 

following practices:

(8) misrepresenting the character, extent, or amount of a consumer debt, or 

misrepresenting the consumer debt's status in a judicial or governmental 

proceeding;

37. Plaintiff alleges that the transmission of false credit information to Transunion by 

Phoenix materially overstated the balance of the alleged debt.

38. Defendant Phoenix misrepresented the amount of the alleged debt and therefore 

violated the TDCA.

39. Defendant Georgetown misrepresented the amount of the alleged debt and 

therefore violated the TDCA.

40. Defendant Singer Management misrepresented the amount of the alleged debt 

and therefore violated the TDCA.

41. Plaintiff alleges she has actual damages as a result of the foregoing violations.

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 COUNT II—VIOLATION OF THE FAIR DEBT COLLECTION 

PRACTICES ACT

42. Plaintiff re-alleges the above paragraphs as if set forth fully in this count.

43. 15 U.S.C. § 1692(e)(2)(A), (8) and (10) of the FDCPA provide as follows:

FALSE OR MISLEADING REPRESENTATIONS

A debt collector may not use any false, deceptive, or misleading 

representation or means in connection with the collection of any debt. 

Without limiting the general application of the foregoing, the following 

conduct is a violation of this section: 

(2) The false representation of—

(A) the character, amount, or legal status of any debt; 

(8) Communicating or threatening to communicate to any person credit 

information which is known or which should be known to be false, including 

the failure to communicate that a disputed debt is disputed;

(10) The use of any false representation or deceptive means to collect or 

attempt to collect any debt or to obtain information concerning a consumer.

44. Phoenix violated sections (2)(A) and (10) of 15 U.S.C. § 1692e by falsely stating an 

unpaid balance of $11,157.00 to Transunion, notwithstanding the fact that the unpaid balance 

was for a materially lower amount.

 45. Phoenix further violated section e(8) by transmitting incorrect information related to 

the amount of the alleged debt to Transunion. 

.

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LIABILITY OF TRAVELERS

46. Plaintiff alleges Travelers is liable for the extent of any judgment against Defendant 

Phoenix in this cause.

JOINT ENTERPRISE

47. Plaintiff alleges that all of the Defendants are collectively liable under the TDCA for 

the actions of one other under a theory of joint enterprise as (1) an agreement, express or

implied, among the members of the group; (2) a common purpose to be carried out

by the group; (3) a community of pecuniary interest in that purpose, among the

members; and (4) an equal right to a voice in the direction of the enterprise, which

gives an equal right of control. See Shoemaker v. Estate of Whistler, 513 S.W.2d

10, 18 (Tex.1974).

VICARIOUS LIABILITY

48. Plaintiff alleges that Georgetown Place is liable for the actions of Singer 

Management by virtue of vicarious liability and/or agency.

49. Plaintiff further alleges that Georgetown Place and Singer Management are liable for 

the actions of Phoenix by virtue of vicarious liability and/or agency.

TEMPORARY INJUNCTION AND PERMANENT INJUNCTION 

50. Plaintiff requests the Court issue a Temporary Injunction and Permanent 

Injunction that orders Phoenix to correct the improper reporting of the alleged debt on all of the 

credit bureaus of Plaintiff.

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REQUEST FOR ATTORNEY’S FEES

51. Plaintiff seeks reasonable attorneys’ fees as per the FDCPA and TDCA and 

any other statutory or common law basis.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff, Bree McCleskey, respectfully 

prays that the Defendant, Tolteca Enterprises, Inc. d/b/a The Phoenix Recovery Group,

Georgetown Place, LTD. a/k/a Georgetown Place Apartments, Singer Management, LLC, and 

Travelers Casualty & Surety Company of America, be cited to appear and answer herein, and 

that upon a final hearing of the cause, judgment be entered for the Plaintiff against Defendants,

as follows: 

a. Temporary injunction be issued, and upon final hearing a Permanent 

Injunction be issued, requiring Defendant Phoenix to correct the improper reporting of the 

Alleged Debt on all of the credit bureaus of Plaintiff;

b. The Court award Plaintiff actual and statutory damages pursuant to Texas Finance

Code § 392.403(a)(2); 

c. The Court award Plaintiff costs and attorneys’ fees pursuant to Texas Finance Code 

§ 392.403(b); 

d. The Court award Plaintiff actual and statutory damages pursuant to 15 U.S.C. 

§ 1692(k)(a)(1) and (a)(2); 

e. The Court award Plaintiff costs and reasonable attorneys’ fees pursuant to 15 U.S.C. 

§ 1692(k)(a)(3) and any other applicable statute or legal basis; 

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f. The Court award Plaintiff prejudgment and post judgment interest as allowed by law; 

g. The Court grant Plaintiff such further relief to which Plaintiff may be justly entitled. 

Respectfully submitted, 

/s/Brent A. Devere 

Brent A. Devere 

SBN#00789256 

1411 West Avenue, Suite #200 

Austin, Texas 78701 

Ph: 512-457-8080 Fax: 512-457-8060 

Email: BDevere@1411west.com

Attorney for Plaintiff

Bree McCleskey

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