IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

TERESA HERNANDEZ, individually and 

on behalf of all others similarly situated,

 Plaintiff,

-againstCivil Case Number: 

CIVIL ACTION

CLASS ACTION COMPLAINT

MIDLAND CREDIT MANAGEMENT, 

INC.,

 Defendant.

Plaintiff, (hereinafter, “Plaintiff”), a New York resident, brings this class action complaint 

by and through the undersigned attorneys against Defendant MIDLAND CREDIT 

MANAGEMENT, INC. (hereinafter “Defendant” or “MCM”), for its violations of the Fair Debt 

Collection Practices Act 15 U.S.C. §1692 (hereinafter “FDCPA”), individually and on behalf of a 

class of all others similarly situated, pursuant to Rule 23 of the Federal Rules of Civil Procedure, 

based upon information and belief of Plaintiff’s counsel, except for allegations specifically 

pertaining to Plaintiff, which are based upon Plaintiff’s personal knowledge.

INTRODUCTION/PRELIMINARY STATEMENT

1. Congress enacted the FDCPA in 1977 in response to the “abundant evidence of the use of 

abusive, deceptive, and unfair debt collection practices by many debt collectors.” 15 U.S.C. 

§ 1692(a). At that time, Congress was concerned that “abusive debt collection practices 

contribute to the number of personal bankruptcies, to material instability, to the loss of 

jobs, and to invasions of individual privacy.” Id. Congress concluded that “existing laws . 

. . [we]re inadequate to protect consumers,” and that “the effective collection of debts” 

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does not require “misrepresentation or other abusive debt collection practices.” 15 U.S.C. 

§§ 1692(b) & (c).

2. Congress explained that the purpose of the Act was not only to eliminate abusive debt

collection practices, but also to “insure that those debt collectors who refrain from using

abusive debt collection practices are not competitively disadvantaged.” Id. § 1692(e). After

determining that the existing consumer protection laws were inadequate, id. § 1692(b),

Congress gave consumers a private cause of action against debt collectors who fail to

comply with the Act. Id. § 1692k.

NATURE OF THE ACTION

3. Plaintiff brings this action individually and on behalf of a class of Texas residents 

seeking redress for Defendant’s actions which violate the FDCPA.

4. Plaintiff is alleging that Defendant violated several sections in the FDCPA, including 15

U.S.C. §1692e.

5. Plaintiff is seeking statutory damages, attorney’s fees and costs, and declaratory and

injunctive relief for the violations of the FDCPA.

JURISDICTION AND VENUE

6. The Court has jurisdiction over this class action under 28 U.S.C. § 1331, 15 U.S.C. § 1692

et seq. and 28 U.S.C. § 2201. If applicable, the Court also has pendent jurisdiction over

the state law claims in this action pursuant to 28 U.S.C. § 1367(a).

7. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)(2).

PARTIES

8. Plaintiff is a natural person and a resident of Bexar County in the State of Texas.

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9. Plaintiff is a “consumer” as defined by 15 U.S.C. §1692a(3). 

10. Defendant is a collection agency with its principal office located at 2365 Northside Drive, 

Suite 300, San Diego, California 92108 and its registered agent, Corporation Service 

Company, located at 251 Little Falls Drive, Wilmington, Delaware 19808.

11. Defendant is a company that uses the mail, telephone, or facsimile in a business the 

principal purpose of which is the collection of debts, or that regularly collects or attempts 

to collect debts alleged to be due another.

12. Defendant is a “debt collector,” as defined under the FDCPA under 15 U.S.C. § 1692a(6).

ALLEGATIONS OF FACT

13. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs above

herein with the same force and effect as if the same were set forth at length herein.

14. Some time prior to September 16, 2019, an obligation was allegedly incurred to CAPITAL 

ONE BANK (USA) N.A..

15. The alleged CAPITAL ONE BANK (USA) N.A. obligation arose out of a transaction in 

which money, property, insurance or services, which are the subject of the transaction, are 

primarily for personal, family or household purposes.

16. The alleged CAPITAL ONE BANK (USA) N.A. obligation is a "debt" as defined by 15 

U.S.C.§ 1692a(5).

17. CAPITAL ONE BANK (USA) N.A. is a "creditor" as defined by 15 U.S.C.§ 1692a(4).

18. Defendant contends that the CAPITAL ONE BANK (USA) N.A. debt is past due.

19. Defendant is a company that uses mail, telephone or facsimile in a business the principal 

purpose of which is the collection of debts, or that regularly collects or attempts to collect 

debts incurred or alleged to have been incurred for personal, family or household purposes 

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on behalf of creditors.

20. Sometime prior to September 16, 2019, Defendant sent the Plaintiff a collection letter in 

an attempt to collect the alleged debt. See Exhibit A.

21. The letter was received and read by the Plaintiff.

22. The letter stated in part: “Current Balance $453.38”.

23. The letter further stated in part:

“Congratulations! You have been pre-approved for a discount program designed to 

save you money. Act now to maximize your savings and put this debt behind 

you...”

24. The above statement was immediately followed by three payment options as follows:

Option 1 – 10% off; Option 2 – 5% off; Option 3 – Monthly Payments as low as $50 per 

month

25. Upon reading the above statements, the Plaintiff was left to believe, as would any least 

sophisticated consumer, that had she accepted option 1, 2, or 3, that they would be receiving 

a discount on the current balance.

26. Upon information and belief, accepting option 3 would not in fact be an offer of a 

“discount”.

27. As such, Defendant’s statement was false, deceptive, and or misleading.

28. The FDCPA expressly prohibits debt collectors from making any false, deceptive, or 

misleading representations in connection with the collection of a debt. See 15 U.S.C. 

§1692e.

29. Defendant’s conduct harmed the Plaintiff.

CLASS ALLEGATIONS

35. Plaintiff brings claims, pursuant to the Federal Rules of Civil Procedure (hereinafter 

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“FRCP”) Rule 23, individually and on behalf of the following consumer class: (a) all 

individuals with addresses in the State of Texas (b) who were sent collection letters from 

Defendant attempting to collect an alleged consumer debt on behalf of CAPITAL ONE 

BANK (USA) N.A. (d) which offered the consumer three payment options, (e) and referred 

to such payment options as a “discount program” (f) which was sent on or after a date one 

year prior to the filing of this action and on or before a date 21 days after the filing of this 

action.

30. The identities of all class members are readily ascertainable from the records of 

Defendant and those companies and entities on whose behalf they attempt to collect

and/or have purchased debts.

31. Excluded from the Plaintiff Class are the Defendant and all officers, members, partners, 

managers, directors, and employees of the Defendant and their respective immediate 

families, and legal counsel for all parties to this action and all members of their 

immediate families.

32. There are questions of law and fact common to the Plaintiff Class, which common issues 

predominate over any issues involving only individual class members. The principal issue 

is whether the Defendant’s written communications to consumers, in the forms attached 

as Exhibit A, violate 15 U.S.C. § 1692e.

33. The Plaintiff’s claims are typical of the class members, as all are based upon the same 

facts and legal theories.

34. The Plaintiff will fairly and adequately protect the interests of the Plaintiff Class defined 

in this complaint. The Plaintiff has retained counsel with experience in handling 

consumer lawsuits, complex legal issues, and class actions, and neither the Plaintiff nor 

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Plaintiff’s attorneys have any interests, which might cause them not to vigorously pursue 

this action.

35. This action has been brought, and may properly be maintained, as a class action pursuant 

to the provisions of Rule 23 of the Federal Rules of Civil Procedure because there is a welldefined community interest in the litigation:

(a) Numerosity: The Plaintiff is informed and believes, and on that basis alleges, that 

the Plaintiff Class defined above is so numerous that joinder of all members would 

be impractical.

(b) Common Questions Predominate: Common questions of law and fact exist as to 

all members of the Plaintiff Class and those questions predominate over any 

questions or issues involving only individual class members. The principal issue is 

whether the Defendant’s written communications to consumers, in the forms

attached as Exhibit A, violate 15 U.S.C. § 1692e.

(c) Typicality: The Plaintiff’s claims are typical of the claims of the class members. 

The Plaintiff and all members of the Plaintiff Class have claims arising out of the 

Defendant’s common uniform course of conduct complained of herein.

(d) Adequacy: The Plaintiff will fairly and adequately protect the interests of the class 

members insofar as Plaintiff has no interests that are averse to the absent class 

members. The Plaintiff is committed to vigorously litigating this matter. Plaintiff

has also retained counsel experienced in handling consumer lawsuits, complex 

legal issues, and class actions. Neither the Plaintiff nor Plaintiff’s counsel have any 

interests which might cause them not to vigorously pursue the instant class action 

lawsuit.

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(e) Superiority: A class action is superior to the other available means for the fair and 

efficient adjudication of this controversy because individual joinder of all members 

would be impracticable. Class action treatment will permit a large number of 

similarly situated persons to prosecute their common claims in a single forum 

efficiently and without unnecessary duplication of effort and expense that 

individual actions would engender.

36. Certification of a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure is 

also appropriate in that the questions of law and fact common to members of the Plaintiff 

Class predominate over any questions affecting an individual member, and a class action 

is superior to other available methods for the fair and efficient adjudication of the 

controversy.

37. Depending on the outcome of further investigation and discovery, Plaintiff may, at the 

time of class certification motion, seek to certify a class(es) only as to particular issues 

pursuant to Fed. R. Civ. P. 23(c)(4).

COUNT I 

 

VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT

15 U.S.C. §1692e et seq.

38. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs above

herein with the same force and effect as if the same were set forth at length herein.

39. Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated 

various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692e.

40. Pursuant to 15 U.S.C. §1692e, a debt collector is prohibited from using false, deceptive, or 

misleading representation in connection with the collection of a debt.

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41. The Defendant violated said section by:

a. Falsely representing the character, amount, and legal status of the alleged debt in 

violation of 1692e(2);

b. Making false or deceptive representation in connection with the collection of a debt 

in violation of 1692e(10).

42. By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant's conduct 

violated Section 1692e et seq. of the FDCPA, actual damages, statutory damages, costs and 

attorneys’ fees.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff demands judgment against Defendant as follows:

(a) Declaring that this action is properly maintainable as a Class Action and 

certifying Plaintiff as Class representative and the undersigned as Class 

Counsel;

(b) Awarding Plaintiff and the Class statutory damages;

(c) Awarding Plaintiff costs of this Action, including reasonable attorneys’ fees 

and expenses; 

(d) Awarding pre-judgment interest and post-judgment interest; and

(e) Awarding Plaintiff and the Class such other and further relief as this Court 

may deem just and proper.

Dated: June 17, 2020

By: /s/ Yitzchak Zelman

Yitzchak Zelman, Esq.

Marcus & Zelman, LLC

Case 5:20-cv-00711 Document 1 Filed 06/17/20 Page 8 of 9
701 Cookman Avenue - Suite 300

Asbury Park, NJ 07712

Office: (732) 695-3282

Fax: (732) 298-6256

Email: yzelman@MarcusZelman.com

Attorneys for Plaintiff

Teresa Hernandez

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