PLAINTIFF’S COMPLAINT

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

TERESA TOPE,

 Plaintiff,

v.

CAPITAL ONE BANK (USA) N.A.,

 Defendant.

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Case No.: 

COMPLAINT AND DEMAND FOR 

JURY TRIAL

COMPLAINT

NOW COMES Plaintiff, TERESA TOPE (“Plaintiff”), through her attorneys, and hereby 

alleges the following against Defendant, CAPITAL ONE BANK (USA) N.A.

(“Defendant”):

INTRODUCTION

1. Plaintiff brings this action on behalf of herself individually seeking damages and any other 

available legal or equitable remedies resulting from the illegal actions of Defendant, in 

negligently, knowingly, and/or willfully contacting Plaintiff on Plaintiff’s cellular 

telephone in violation of the Telephone Consumer Protection Act (hereinafter “TCPA”), 

47 U.S.C. § 227 et seq.

JURISDICTION AND VENUE

2. Jurisdiction of this Court arises under 28 U.S.C. § 1331 and 47 U.S.C. §227(b)(3). See, 

Mims v. Arrow Financial Services, LLC, 132 S.Ct. 740 (2012), holding that federal and 

state courts have concurrent jurisdiction over private suits arising under the TCPA.

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

pursuant to 28 U.S.C § 1391(b) because Plaintiff resides within this District and a 

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PLAINTIFF’S COMPLAINT

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substantial part of the events or omissions giving rise to the herein claims occurred, or a 

substantial part of property that is the subject of the action is situated within this District.

PARTIES

4. Plaintiff is a natural person residing in Franklin County, in the city of Columbus, Ohio.

5. Defendant is a corporation doing business in the State of Ohio, and is a Virginia 

corporation with its principal place of business located in McLean, Virginia.

6. At all times relevant to this Complaint, Defendant has acted through its agents employees, 

officers, members, directors, heir, successors, assigns, principals, trustees, sureties, 

subrogees, representatives and insurers.

FACTUAL ALLEGATIONS

7. Defendant is a “person” as defined by 47 U.S.C. § 153 (10). 

8. Defendant placed collection calls to Plaintiff seeking and attempting to collect on alleged 

debts incurred through purchases made on credit issued by Defendant. 

9. Defendant placed collection calls to Plaintiff’s cellular telephone at phone number (614) 

572-31XX.

10. Defendant placed collection calls to Plaintiff from phone numbers including, but not 

limited to (800) 955-6600. 

11. Per its prior business practices, Defendant’s calls were placed with an automated telephone 

dialing system (“auto-dialer”).

12. Defendant used an “automatic telephone dialing system”, as defined by 47 U.S.C. § 227(a) 

(1) to place its telephone calls to Plaintiff seeking to collect a consumer debt allegedly 

owed by Plaintiff, TERESA TOPE.

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PLAINTIFF’S COMPLAINT

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13. Defendant’s calls constituted calls that were not for emergency purposes as defined by 47 

U.S.C. § 227(b)(1)(A).

14. Defendant’s calls were placed to a telephone number assigned to a cellular telephone 

service for which Plaintiff incurs a charge for incoming calls pursuant to 47 U.S.C. § 

227(b)(1).

15. Defendant never received Plaintiff’s “prior express consent” to receive calls using an 

automatic telephone dialing system or an artificial or prerecorded voice on her cellular 

telephone pursuant to 47 U.S.C. § 227(b)(1)(A).

16. On or about September 18, 2017, the Plaintiff called into Defendant’s company at phone 

number (800) 955-6500 and spoke with Defendant’s female representative and requested 

that Defendant cease calling Plaintiff’s cellular phone.

17. During the conversation on September 18, 2017, Plaintiff gave Defendant her full name,

date of birth and her social security number to assist Defendant in accessing her account 

before asking Defendant to stop calling her cell phone.

18. Plaintiff revoked any consent, explicit, implied, or otherwise, to call her cellular telephone 

and/or to receive Defendant’s calls using an automatic telephone dialing system in her

conversation with Defendant’s representative on September 18, 2017.

19. Despite Plaintiff’s request to cease, Defendant placed another call to Plaintiff on

September 19, 2018. 

20. Defendant continued to place collection calls to Plaintiff after September 18, 2017. 

21. Despite Plaintiff’s request that Defendant cease placing automated collection calls,

Defendant placed at least eighty-two (82) automated calls to Plaintiff’s cell phone.

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FIRST CAUSE OF ACTION

NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 

47 U.S.C. § 227

22. Plaintiff repeats and incorporates by reference into this cause of action the allegations set 

forth above at Paragraphs 1-21.

23. The foregoing acts and omissions of Defendant constitute numerous and multiple 

negligent violations of the TCPA, including but not limited to each and every one of the 

above cited provisions of 47 U.S.C. § 227 et seq.

24. As a result of Defendant’s negligent violations of 47 U.S.C. § 227 et seq., Plaintiff is 

entitled to an award of $500.00 in statutory damages, for each and every violation, 

pursuant to 47 U.S.C. §227(b)(3)(B).

25. Plaintiff is also entitled to seek injunctive relief prohibiting such conduct in the future.

SECOND CAUSE OF ACTION

KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER 

PROTECTION ACT

47 U.S.C. § 227 et. seq.

26. Plaintiff repeats and incorporates by reference into this cause of action the allegations set 

forth above at Paragraphs 1-21.

27. The foregoing acts and omissions of Defendant constitute numerous and multiple knowing 

and/or willful violations of the TCPA, including but not limited to each and every one of 

the above cited provisions of 47 U.S.C. § 227 et seq.

28. As a result of Defendant’s knowing and/or willful violations of 47 U.S.C. § 227 et seq., 

Plaintiff is entitled an award of $1,500.00 in statutory damages, for each and every 

violation, pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C).

29. Plaintiff is also entitled to seek injunctive relief prohibiting such conduct in the future. 

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PLAINTIFF’S COMPLAINT

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PRAYER FOR RELIEF

WHEREFORE, Plaintiff, TERESA TOPE, respectfully requests judgment be entered 

against Defendant, CAPITAL ONE BANK (USA) N.A., for the following: 

FIRST CAUSE OF ACTION

30. For statutory damages of $500.00 multiplied by the number of negligent violations of the 

TCPA alleged herein (82); $41,000.00; 

31. Actual damages and compensatory damages according to proof at time of trial; 

SECOND CAUSE OF ACTION

32. For statutory damages of $1,500.00 multiplied by the number of knowing and/or willful 

violations of TCPA alleged herein (82); $123,000.00; 

33. Actual damages and compensatory damages according to proof at time of trial; 

ON ALL CAUSES OF ACTION

34. Actual damages and compensatory damages according to proof at time of trial; 

35. Costs and reasonable attorneys’ fees; 

36. Any other relief that this Honorable Court deems appropriate. 

JURY TRIAL DEMAND

37. Plaintiff demands a jury trial on all issues so triable.

DATED: May 17, 2018

RESPECTFULLY SUBMITTED,

By: s/ Peter Cozmyk

Peter Cozmyk

Attorney for Plaintiff

COZMYK LAW OFFICES, LLC

6100 Oak Tree Blvd., Ste. 200

Independence, OH 44131

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P: (877) 570-4440

F: (216) 485-2125

E: Pcozmyk@cozmyklaw.com

By: s/ Alyson J. Dykes

Alyson J. Dykes

Law Offices of Jeffrey Lohman, P.C

4740 Green River Rd., Ste 206

Corona, CA 92880

T: (866) 329-9217

E: Alysond@jlohman.com

Attorney for Plaintiff

Pro hac vice application to follow

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