UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND DIVISION 

JODY A. YBARRA, 

Plaintiff, 

v. 

21st MORTGAGE CORPORATION 

Defendant. 

Case No. 7:20-cv-00103 

COMPLAINT 

 NOW COMES JODY A. YBARRA, through undersigned counsel, complaining of 21st

MORTGAGE CORPORATION as follows: 

NATURE OF THE ACTION 

1. This action is seeking redress for invasion of privacy and Defendant’s violation(s) 

the Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227 et seq. and the Texas Debt 

Collection Act (the “TDCA”), Tex. Fin. Code Ann. § 392 et seq.

JURISDICTION AND VENUE 

2. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. 

3. This Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367. 

4. Venue in this district is proper under 28 U.S.C. § 1391(b)(2). 

PARTIES 

5. JODY A. YBARRA (“Plaintiff”) is a natural person, over 18-years-of-age, who at 

all times relevant resided in Odessa, Texas. 

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

7. Plaintiff is a “consumer” as defined by Tex. Fin. Code Ann. § 392.001(1). 

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8. 21st MORTGAGE CORPORATION (“21st Mortgage”) is a corporation organized 

and existing under the laws of the state of Delaware. 

9. 21st Mortgage has its principal place of business at 620 Market Street, Knoxville, 

Tennessee 37902. 

10. 21st Mortgage is a “person” as defined by 47 U.S.C. § 153(39). 

11. 21st Mortgage is a “debt collector” as defined by Tex. Fin. Code Ann. § 392.001(6) 

as it directly or indirectly engages in debt collection. 

FACTUAL ALLEGATIONS 

12. At all times relevant, Plaintiff was the sole operator, possessor, and subscriber of 

the cellular telephone number ending in 7881. 

13. At all times relevant, Plaintiff’s number ending in 7881 was assigned to a cellular 

telephone service as specified in 47 U.S.C. § 227(b)(1)(A)(iii). 

14. At all times relevant, Plaintiff was financially responsible for her cellular telephone 

equipment and services. 

15. 21st Mortgage financed Plaintiff’s purchase of a mobile home. 

16. 21st Mortgage retained a purchase-money security interest in the home. 

17. Last year, Plaintiff monthly payment increased. 

18. Already financially strained, Plaintiff’s payments were made late. 

19. In September, Plaintiff phoned 21st Mortgage. 

20. Plaintiff was assured she was not behind. 

21. Plaintiff confirmed payment was due 28th of every month. 

22. Following this conversation, Plaintiff made each payment. 

23. However, in December, Plaintiff started to receive phone calls from 21st Mortgage. 

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24. On no less than 10 occasions, Plaintiff answered. 

25. Each time Plaintiff answered, Plaintiff was met by noticeable clear pause, and was 

forced to say “Hello, hello, hello” prior to being connected to an agent. 

26. 21st Mortgage sought to collect Plaintiff’s allegedly late payment(s). 

27. Plaintiff detailed previous conversations with 21st Mortgage; specifically, that she 

was not late. 

28. On multiple occasions, Plaintiff told 21st Mortgage “[s]top calling.” 

29. Sadly, these phone calls continued as 21st Mortgage continues to indicate Plaintiff 

is late every month. 

30. Recently, Plaintiff explained she was disabled and was not able to work. 

31. In response, 21st Mortgage demanded full payments as well as insisted that Plaintiff 

should work in order to pay her debts. 

32. Appalled, Plaintiff told 21st Mortgage “[s]top calling” once more. 

33. All in all, Plaintiff received no less than fifty (50) phone calls from numbers leading 

back to 21st Mortgage – including, (865) 292-2120. 

34. 21st Mortgage’s phone calls have caused Plaintiff actual harm, including but not 

limited to, aggravation that accompanies persistent and unwanted phone calls, anxiety, emotional 

distress, increased risk of personal injury resulting from the distraction caused by the phone calls, 

wear and tear to Plaintiff’s cellular phone, intrusion upon and occupation of Plaintiff’s cellular 

telephone, temporary loss of use of Plaintiff’s cellular phone, invasion of privacy, loss of battery 

charge, loss of concentration, mental anguish, nuisance, the per-kilowatt electricity costs required 

to recharge Plaintiff’s cellular telephone as a result of increased usage of Plaintiff’s telephone 

services, and wasting Plaintiff’s time. 

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35. Concerned with having had her rights violated, Plaintiff sought counsel to ensure 

that 21st Mortgage’s unlawful collection practices stopped. 

36. Accordingly, Plaintiff is forced to expend energy and/or time consulting with 

attorneys to put an end to 21st Mortgage’s unlawful collection practices. 

CLAIMS FOR RELIEF 

COUNT I: 

Telephone Consumer Protection Act (47 U.S.C. § 227 et. seq.) 

37. All paragraphs of this Complaint are expressly adopted and incorporated herein as 

though fully set forth herein. 

38. 21st Mortgage placed or caused to be placed no less than 50 non-emergency calls, 

including but not limited to the aforementioned collection calls, to Plaintiff’s cellular telephone 

utilizing an automatic telephone dialing system (“ATDS”) or an artificial or prerecorded voice 

without Plaintiff’s consent in violation of 47 U.S.C. §227 (b)(1)(A)(iii). 

39. Upon information and belief, based on the “clear pause” Plaintiff noticed, 21st

Mortgage employed an ATDS to place calls to Plaintiff. 

40. Upon information and belief, the ATDS employed by 21st Mortgage transfers the 

call to a live representative once a human voice is detected, hence the clear pause. 

41. Upon information and belief, the ATDS employed by 21st Mortgage has the 

capacity – (A) to store or produce telephone numbers to be called, using a random or sequential 

number generator; and (B) to dial such numbers. 

42. Upon information and belief, 21st Mortgage acted through its agents, employees, 

and/or representatives at all times relevant. 

43. As a result of 21st Mortgage’s violations of 47 U.S.C. §227 (b)(1)(A)(iii). Plaintiff 

is entitled to receive $500.00 in damages for each violation. 

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44. As a result of 21st Mortgage’s knowing and willful violations of 47 U.S.C. §227 

(b)(1)(A)(iii), Plaintiff is entitled to receive up to $1,500.00 in treble damages for each violation. 

WHEREFORE, Plaintiff requests the following relief: 

A. a finding that 21st Mortgage violated 47 U.S.C. § 227 et seq.; 

B. an award of statutory damages of at least $500.00 for each and every violation; 

C. an award of treble damages of up to $1,500.00 for each and every violation; and 

D. an award of such other relief as this Court deems just and proper.

COUNT II 

Texas Debt Collection Act (Tex. Fin. Code Ann. § 392 et seq.) 

45. All paragraphs of this Complaint are expressly adopted and incorporated herein as 

though fully set forth herein. 

46. Subsection 392.302(4) of the Texas Finance Code provides: 

[i]n debt collection, a debt collector may not oppress, harass, or abuse a person by: 

(4) causing a telephone to ring repeatedly or continuously, or making 

repeated or continuous telephone calls, with the intent to harass a 

person at the called number. 

Tex. Fin. Code Ann. § 392.302(4). 

47. 21st Mortgage violated Tex. Fin. Code Ann. § 392.302(4) by continuing to place 

phone calls to Plaintiff in spite of Plaintiff’s request(s) that they stop. 

48. Plaintiff may enforce the provisions of Tex. Fin. Code Ann. § 392.302(4) pursuant 

to Tex. Fin. Code Ann. § 392.403 which provides: 

(a) A person may sue for: 

(1) injunctive relief to prevent or restrain a violation of this chapter; and 

(2) actual damages sustained as a result of a violation of this chapter. 

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(b) A person who successfully maintains an action under Subsection (a) is 

entitled to attorney’s fees reasonable related to the amount of work 

performed and costs. 

WHEREFORE, Plaintiff requests the following relief: 

A. a finding that 21st Mortgage violated Tex. Fin. Code Ann. § 392.302(4); 

B. an award of injunctive relief pursuant to Tex. Fin. Code Ann. § 392.403(a)(1); 

C. an award of actual damages in an amount to be determined pursuant to Tex. Fin. 

Code Ann. § 392.403(a)(2); 

D. an award of reasonable attorney’s fees and costs in an amount to be determined 

pursuant to Tex. Fin. Code Ann. § 392.403(b); and 

E. an award of such other relief as this Court deems just and proper. 

COUNT III 

Invasion of Privacy 

49. All paragraphs of this Complaint are expressly adopted and incorporated herein as 

though fully set forth herein. 

50. Under Texas law, there does exist a common-law right to privacy. Billings v. 

Atkinson, 489 S.W.2d 858, 859 (Tex. 1973); Farrington v. Sysco Food Services, Inc., 865 S.W.2d 

247, 253 (Tex. App.--Houston [1st Dist.] 1993, writ denied). 

51. There are three elements to consider: (1) an intentional intrusion; (2) upon the 

seclusion, solitude, or private affairs of another; (3) which would be highly offensive to a 

reasonable person. Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993); Farrington, 865 

S.W.2d at 253; Gill v. Snow, 644 S.W.2d 222, 223-24 (Tex. App.--Fort Worth 1982, no writ); 

RESTATEMENT (SECOND) OF TORTS, § 652B (1977). 

52. Courts have also required that the intrusion be unreasonable, unjustified, or 

unwarranted. Billings, 489 S.W.2d at 860; Farrington, 865 S.W.2d at 253. 

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53. Plaintiff asked Defendant to stop calling her on multiple occasions. 

54. The calls, however, did not stop. 

55. That Defendant continued to make phone calls after Plaintiff requested that they 

stop is an intentional intrusion of Plaintiff’s privacy. 

56. Furthermore, the nature and frequency of the calls establishes the second two 

elements of the cause of action. 

57. Receipt of phone calls after requests to stop is sufficient to constitute an intrusion 

upon Plaintiff’s seclusion, solitude, or private affairs which would be highly offensive to a 

reasonable person. 

58. No doubt exists that harassing phone calls are overt, unlawful acts. 

59. They are overt, unlawful acts for at least two reasons. 

60. First they are unwarranted invasions of the right of privacy which constitutes a legal 

injury for which a remedy exists. See Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex. 1973). 

61. They constitute an intrusion upon a person’s seclusion or solitude and, therefore, 

invade privacy. See National Bonding Agency v. Demeson, 648 S.W.2d 748, 749 (Tex.App.—

Dallas 1983, no writ). See generally W. Page Keeton, Prosser and Keeton on the Law of Torts § 

117 (5th ed.1984) (persistent and unwanted telephone calls have been held to be invasions of 

privacy). 

62. Second, they cause the telephone of another to ring repeatedly or are repeated 

anonymous telephone communications made in a manner reasonably likely to harass, annoy, 

alarm, abuse, torment, embarrass or offend another in violation of TEX. PENAL CODE ANN. § 

42.07(a)(4) (Vernon Supp.1985). 

WHEREFORE, Plaintiff requests the following relief: 

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A. a finding that Defendant violated Plaintiff’s right to privacy based on an intrusion 

upon her seclusion; 

B. an award of actual damages; 

C. an award of punitive damages; and 

D. an award of such other relief as this Court deems just and proper. 

DEMAND FOR JURY TRIAL 

Pursuant to Fed. R. Civ. P. 38(b), Plaintiff demands a trial by jury of any and all issues in 

this action so triable of right.

DATED: April 27, 2020 Respectfully submitted, 

 JODY A. YBARRA 

By: /s/ Joseph S. Davidson 

 

 Mohammed O. Badwan 

Joseph S. Davidson 

 SULAIMAN LAW GROUP, LTD. 

 2500 South Highland Avenue 

Suite 200 

 Lombard, Illinois 60148 

 +1 630-575-8181 

mbadwan@sulaimanlaw.com 

jdavidson@sulaimanlaw.com 

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