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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION

JAMES MCCORD,

 

 Plaintiff,

v.

RCS CAPITAL PARTNERS, INC.,

PLAZA SERVICES, LLC, and ELI 

HAZZAN

 

 Defendants.

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CIVIL COMPLAINT

CASE NO. 2:18-CV-608

JURY DEMAND

COMPLAINT

Now comes JAMES MCCORD (“Plaintiff”), complaining as to the conduct of

RCS CAPITAL PARTNERS, INC. (“RCS”), PLAZA SERVICES, LLC (“Plaza”), and ELI 

HAZZAN (“Hazzan”) (collectively, “Defendants”).

NATURE OF THE ACTION

1. Plaintiff brings this action for damages pursuant to the Fair Debt 

Collection Practices Act (“FDCPA”) under 15 U.S.C. § 1692 et seq., the Telephone 

Consumer Protection Act (“TCPA”) under 47 U.S.C. § 227 et seq., the Ohio Consumer 

Sales Practices Act (“CSPA”) under Ohio Rev. Code Ann. § 1345 et seq., and Ohio 

common law.

JURISDICTION AND VENUE

2. This action arises under and is brought pursuant to the FDCPA and 

TCPA. Subject matter jurisdiction is conferred upon this Court by 28 U.S.C. §§ 1331 and 

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1337 as the action arises under the laws of the United States. Supplemental jurisdiction 

exists for the state law claims pursuant to 28 U.S.C. § 1367.

3. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 as Defendants

conduct business in the Southern District of Ohio and substantial portion of the events 

giving rise to the claims occurred within the Southern District of Ohio.

PARTIES

4. Plaintiff is a natural person residing within the Southern District of Ohio.

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

6. RCS is a third-party debt collector. See RCS Capital Partners, Inc., Utah.gov

(last visited June 18, 2018), https://secure.utah.gov/bes/details.html?entity=

10444420-0131 (“Company Type: Collection Agency – Foreign”).

7. RCS is a New York Corporation headquartered in Amherst, NY that 

regularly collects upon consumers in Ohio.

8. Plaza is a third-party debt collector. See Plaza Services LLC, (last visited

June 18, 2018), https://plazaservicesllc.com (“This is a communication from a debt 

collector. . .”).

9. Plaza is a South Dakota limited liability company headquartered in 

Atlanta, Georgia that regularly collects upon consumers in Ohio.

10. Hazzan is listed as the CEO of RCS on the New York State Department of 

State, Division of Corporations website. RCS Capital Partners, Inc., NYS Dep’t of State 

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(last visited June 18, 2018), https://appext20.dos.ny.gov/corp_public/CORPSEARCH.

ENTITY_SEARCH_ENTRY.

11. Upon information and belief, Hazzan participates in or oversees the debt 

collection activities of RCS, making him a third-party debt collector. 

12. Hazzan is a natural person and New York resident who regularly collects 

upon consumers in Ohio. 

13. Defendants are “person[s]” as defined by 47 U.S.C. § 153(39).

14. Defendants acted through their agents, employees, officers, members, 

directors, heirs, successors, assigns, principals, trustees, sureties, subrogees, 

representatives, and insurers at all times relevant to the instant action.

FACTS SUPPORTING CAUSES OF ACTION

15. Plaza is the current holder of an alleged debt originally incurred by 

Plaintiff with Check ‘n Go, a payday lender, for personal purposes.

16. Plaza placed Plaintiff’s account with RCS for collection.

17. Upon information and belief, Hazzan oversaw RCS’s collection activities 

with regard to Plaintiff.

18. Between June 1, 2018 at the latest, and about June 13th, 2018, RCS called 

Plaintiff at least once per day, usually around noon.

19. Plaintiff recognized RCS’s phone number, and he answered each time 

RCS called. Often, when Plaintiff answered a call from RCS, he experienced several 

seconds of dead air before the call was terminated by RCS. When this happened, RCS 

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called again within a few minutes. Sometimes this process repeated three or four times 

before Plaintiff encountered a live person on the other end of the line.

20. During the calls, RCS represented that it had the authority to negotiate a 

final settlement of Plaintiff’s purported debt.

21. On or about June 8th, Plaintiff asked RCS to stop calling him until June 

29th because he would not be able to settle the purported debt until then. RCS agreed.

22. Nevertheless, RCS continued to call Plaintiff daily, sometimes multiple 

times per day, until at least June 13th. 

23. RCS called Plaintiff at least nine times after he asked RCS to stop calling 

him.

24. During most of the calls, RCS informed Plaintiff that the instant call would

be the last call before Plaza filed a lawsuit against Plaintiff.

25. Plaza has not filed a lawsuit against Plaintiff.

26. A Courtlink search conducted by Plaintiff’s counsel did not reveal any 

instances of Plaza bringing litigation against other purported debtors.

27. Neither RCS nor Plaza has sent Plaintiff any documentation by mail.

28. Plaintiff has suffered concrete harm as a result of Defendants’ actions, 

including but not limited to invasion of privacy, aggravation that accompanies 

collection telephone calls, emotional distress, and increased usage of his telephone 

services.

COUNT I—VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT

29. Plaintiff realleges the paragraphs above as though fully set forth herein.

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30. Plaintiff is a “consumer” as defined by 15 U.S.C. § 1692a(3) of the FDCPA.

31. Defendants are “debt collector[s]” as defined by § 1692a(6) of the FDCPA

because the principal purposes of their businesses are the collection of debts, and 

because they use the instrumentalities of interstate commerce to do so. In the 

alternative, Defendants are “debt collector[s]” under § 1692(a)(6) because they regularly 

collect or attempt to collect, directly or indirectly, debts owed or due or asserted to be 

owed or due another.

32. RCS and Plaza identify themselves as debt collectors and are engaged in 

the business of collecting or attempting to collect, directly or indirectly, defaulted debts 

owed, due, or asserted to be owed or due to others.

33. Because Plaza is a debt collector, Plaza is vicariously liable for debt 

collection actions taken by RCS while acting on Plaza’s behalf. “[A]n entity that is itself 

a ‘debt collector’—and hence subject to the FDCPA—should bear the burden of 

monitoring the activities of those it enlists to collect debts on its behalf.” Pollice v. 

National Tax Funding, L.P., 225 F.3d 379, 405 (3d Cir. 2000).

34. Employees and officers of debt collection agencies are themselves liable as 

debt collectors where they “regularly engage[], directly or indirectly, in the collection of 

debts,” including through “oversee[ing] compliance.” Kistner v. Law Offices of Michael P. 

Margelefsky, LLC, 518 F.3d 433, 438 (6th Cir. 2008). 

35. Hazzan is therefore liable for RCS’s violations of the FDCPA committed

under his supervision, including, on information and belief, the violations described in 

this Count.

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36. The subject debt is a “debt” as defined by FDCPA § 1692a(5) because the 

debt owed or due or asserted to be owed or due to another arises out of a transaction for

personal, family, or household purposes, being in this case a payday loan used for 

personal purposes.

a. Violations of FDCPA § 1692e(5).

37. The FDCPA, pursuant to 15 U.S.C. § 1692e(5), prohibits a debt collector 

from threatening “to take any action that cannot legally be taken or that is not intended 

to be taken.”

38. A debt collector’s threat to bring a lawsuit that it does not intend to bring 

violates § 1692e(5). See Baker v. G.C. Services Corp., 677 F.2d 775, 778–79 (9th Cir. 1982).

39. RCS informed Plaintiff several times that a particular call would be its 

final call before Plaza brought litigation against Plaintiff. The obvious implication of 

this statement was that Plaza would bring litigation against Plaintiff shortly after the 

call if Plaintiff did not pay to settle the purported debt. 

40. Plaza has not brought such litigation against Plaintiff, and a Courtlink

search conducted by Plaintiff’s counsel did not reveal any instances of Plaza bringing 

similar litigation against other purported debtors.

41. Defendants violated § 1692e(5) when RCS stated several times that a 

particular call to Plaintiff was the final call before Plaza would bring litigation, where

Plaza did not intend to bring litigation, let alone to do so immediately. The natural 

consequence of these improper threats was to confuse and worry plaintiff.

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b. Violations of FDCPA § 1692f.

42. The FDCPA, pursuant to 15 U.S.C. § 1692f, prohibits a debt collector from 

using “unfair or unconscionable means to collect or attempt to collect any debt.”

43. Defendants violated § 1692f when RCS unfairly and unconscionably 

attempted to collect on a debt by continuously calling Plaintiff after being notified to 

stop. Attempting to coerce Plaintiff into payment by placing voluminous phone calls 

without his permission is unfair and unconscionable behavior. These means employed 

by RCS only served to worry and confuse Plaintiff.

44. As pled above, Plaintiff has been harmed and suffered damages as a result 

of Defendants’ illegal actions through RCS.

c. Violation of FDCPA § 1692g.

45. The FDCPA, pursuant to 15 U.S.C. § 1692g, requires each new debt 

collector to send written notice explaining certain of the consumer’s rights under the 

FCDPA with, or within five days of, their initial communication with a consumer. 

Wright v. Ocwen Loan Servicing, L.L.C., 2013 WL 5532687, at *__ (E.D. Mich. Oct. 7, 2013); 

Turner v. Shenandoah Legal Group, P.C., 2006 WL 1685698, at *11 (E.D.Va. June 12, 2006).

46. Plaintiff has not received any mailings from RCS.

47. Defendants violated § 1692g when, following its initial telephone 

conversation with Plaintiff on or before June 1, 2018, RCS failed to send the required 

§ 1692g notice by mail within five days. RCS’s failure to comply with the requirements 

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of § 1692g prevented Plaintiff from learning of his rights and thereby magnified the 

confusing and worrying effect of RCS’s collection calls.

COUNT II— VIOLATIONS OF THE TCPA

48. Plaintiff realleges the above paragraphs as though fully set forth herein.

49. The TCPA, pursuant to 47 U.S.C. § 227(b)(1)(A), prohibits calling persons 

on their cellular phones using an ATDS without their consent. The TCPA, under 47 

U.S.C. § 227(b)(1), defines an ATDS as “equipment which has the capacity ... to store or 

produce telephone numbers to be called, using a random or sequential number 

generator; and to dial such numbers.”

50. The phenomenon of abandoned calls such as those repeatedly experienced 

by Plaintiff is a well-known sign of the use of an ATDS. See De Los Santos v. Millward 

Brown, Inc., 2014 U.S. Dist. LEXIS 88711 at *9–10 (S.D.Fla. Jun 29, 2014) (citing FCC, 

Consumer Guide: Unwanted Telephone Marketing Calls 2 (2013), http://www.fcc.gov

/cgb/consumerfacts/tcpa.pdf).

51. Upon information and belief, RCS used an ATDS in connection with its 

communications directed towards Plaintiff’s cellular phone.

52. At no time did Plaintiff give prior express consent to RCS permitting it to 

contact him via an ATDS. 

53. Any purported consent that the Plaintiff may have given to the original 

creditor was revoked by Plaintiff’s demand that RCS cease contacting him.

54. RCS violated the TCPA by placing at least nine phone calls to Plaintiff’s 

cellular phone using an ATDS without his consent. 

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55. Plaza is also liable for violations of the TCPA committed by its agent, RCS, 

under the federal common law of agency because Plaza hired RCS to collect upon 

Plaintiff on its behalf and under its control, and specifically because RCS represented 

that it had authority to settle the debt on behalf of Plaza. See Keating v. Peterson’s Nelnet, 

LLC, 615 Fed.Appx. 365, 371–72 (6th Cir. 2015) (stating that the common law of agency 

applied and holding that a collection agency was not an agent in large part because it 

did not have the authority to settle the debt on behalf of the debt holder). 

COUNT III—VIOLATIONS OF THE OHIO CONSUMER SALES PRACTICES ACT

56. Plaintiff realleges the above paragraphs as though fully set forth herein.

57. The CSPA, pursuant to R.C. 1345.02(A), states that “[n]o supplier shall 

commit an unfair or deceptive practice in connection with a consumer transaction.”

58. Plaintiff is a “person” as defined by R.C. 1345.01(B).

59. Defendants are “supplier[s]” as defined by R.C. 1345.01(C). Taylor v. First 

Resolution Invest. Corp., 72 N.E.3d 573, 600 (Ohio 2016), cert. denied sub nom. First 

Resolution Inv. Corp. v. Taylor-Jarvis, 137 S. Ct. 398 (2016).

60. Debt collection is a “consumer transaction” as defined by R.C. 1345.01(A).

61. R.C. §1345.09(B) thus grants Plaintiff a private right of action against 

Defendants for $200 per violation of the CSPA, plus noneconomic damages of up to 

$5,000 per violation in an amount to be determined at trial, plus attorney fees.

62. Under the CSPA, the Court may award a multiplier for attorney fees for 

contingency fee cases, such as this one. Davis v. Mut. Life Ins. Co. of New York, 6 F.3d 367, 

383 (6th Cir. 1993) (citing Bittner v. Tri-Cty. Toyota, Inc., 569 N.E.2d 464 (Ohio 1991)).

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a. Violations of the Fair Debt Collection Practices Act.

63. Defendants committed unfair or deceptive acts or practices in violation of 

the CSPA, R.C. 1345.02(A), when RCS engaged in acts and practices in violation of the 

FDCPA as set forth above.

64. Such acts and practices have been previously determined by Ohio courts 

to violate the CSPA, R.C. 1345.01 et seq. See, e.g., Kelly v. Montgomery Lynch & Assocs., 

Inc., No. 1:07-CV-919, 2008 WL 1775251, at *11 (N.D. Ohio Apr. 15, 2008) (“[A]ny 

violation of any one of the enumerated sections of the FDCPA is necessarily an unfair 

and deceptive act or practice in violation of R.C. § 1345.02 and/or § 1345.03”).

65. Defendants, through RCS, committed such actions after such decisions 

were available for public inspection pursuant to R.C. 1345.05(A)(3).

66. Defendants further committed unfair, deceptive, and unconscionable acts 

or practices in violation of the CSPA, R.C. 1345.02(A) and 1345.03(A), when RCS 

engaged in or used unfair means to collect a debt.

67. Defendants committed unfair, deceptive, and unconscionable acts or 

practices in violation of the CSPA when RCS communicated with Plaintiff after being 

told to stop and placed an oppressive number of telephone calls to Plaintiff.

68. Such acts and practices have been previously determined by Ohio courts 

to violate the CSPA. See, e.g., State ex rel. Celebrezze v. Scandinavian Health Spa, Inc., No. 

CV863-1158, 1986 WL 363150, at *2 (Ohio Com. Pl. Mar. 31, 1986) (“A supplier who, in 

its collection of consumer debts, engages in acts, the natural consequence of which is to 

harass consumers violates O.R.C. § 1345.02(A)”); State ex rel. Fisher v. Lasson, No. CV 92 

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10 0193, 1994 WL 912252, at *5 (Ohio Com. Pl. Oct. 14, 1994) (repetitive calls can be 

unconscionable).

69. Defendant’s actions, through RCS, therefore violated the CSPA, and 

Plaintiff is entitled to compensation.

b. Violations of the Telephone Consumer Protection Act.

70. Violations of the TCPA (at least to the extent that they are unfair, 

deceptive, or unconscionable) are violations of the CSPA. See, e.g., Ambrose v. Prime 

Time Enterprises, No. CV 04 547298, 2005 WL 646147, at *1 (Ohio Com. Pl. Feb. 23, 2005); 

Tower City Title Agency, Inc. v. Phillips, 2008-Ohio-957, ¶ 5 (“Ohio courts have found that 

a violation of the TCPA also results in a violation of R.C. 1345.02 of the Ohio CSPA.”).

71. RCS, and through it Plaza, violated the CSPA by using an ATDS in 

violation of the TCPA, as set forth above.

72. Such acts and practices have been previously determined by Ohio courts 

to violate the CSPA. RCS, and through it Plaza, committed such actions after such 

decisions were available for public inspection pursuant to R.C. 1345.05(A)(3).

73. RCS’s actions on behalf of Plaza were unfair, deceptive, and 

unconscionable under the CSPA because they were intended to harass Plaintiff and 

intimidate him into making payments.

74. RCS’s actions on behalf of Plaza therefore violated the CSPA, and Plaintiff 

is entitled to compensation for each and every violation.

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c. Violations of R.C. 1345.02(A) and R.C. 1345.03(A).

75. RCS, and through it Plaza, committed unfair, deceptive, and 

unconscionable acts or practices in violation of the CSPA, R.C. 1345.02(A) and

1345.03(A), by engaging in or using unfair means to collect a debt.

76. RCS, and through it Plaza, committed unfair, deceptive, and 

unconscionable acts or practices in violation of the CSPA, R.C. 1345.02(A) and 

1345.03(A), by communicating with Plaintiff after being told to stop and by placing 

repeated phone calls to Plaintiff.

77. Such acts and practices have been previously determined by Ohio courts 

to violate the CSPA, R.C. 1345.01 et seq. See, e.g., State ex rel. Celebrezze v. Scandinavian 

Health Spa, Inc., No. CV863-1158, 1986 WL 363150, at *2 (Ohio Com. Pl. Mar. 31, 1986) 

(“A supplier who, in its collection of consumer debts, engages in acts, the natural 

consequence of which is to harass consumer’s violates O.R.C. § 1345.02(A)”); State ex rel. 

Fisher v. Lasson, No. CV 92 10 0193, 1994 WL 912252, at *5 (Ohio Com. Pl. Oct. 14, 1994) 

(repetitive calls can be unconscionable).

78. RCS, and through it Plaza, committed such actions after such decisions 

were available for public inspection pursuant to R.C. 1345.05(A)(3).

COUNT V—INVASION OF PRIVACY

79. Plaintiff restates and realleges the paragraphs above as though fully set 

forth herein.

80. Ohio recognizes a cause of action for invasion of privacy based on 

“wrongful intrusion into one’s private activities in such a manner as to outrage or cause 

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mental suffering, shame or humiliation to a person of ordinary sensibilities.” Sustin v. 

Fee, 69 Ohio St.2d 143, 145, 431 N.E.2d 992, 993 (Ohio 1982) (quoting Housh v. Peth, 165 

Ohio St. 35, 133 N.E.2d 340 (Ohio 1956)).

81. RCS, and through it Plaza, invaded Plaintiff’s privacy and intruded on his

solitude and seclusion by intentionally and persistently causing his cellular phone to 

ring and by attempting to contact him when he desired to be left alone.

82. Defendant’s pattern of repeatedly calling Plaintiff in his home was so 

outrageous that it would cause shame or humiliation to a person of ordinary 

sensibilities, and Plaintiff was injured by this conduct.

WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter 

judgment as follows:

a. Declaring that the practices complained of herein are unlawful and violate 

the aforementioned bodies of law;

b. Awarding Plaintiff statutory damages of $1,000.00 as provided under 

15 U.S.C. § 1692k(a)(2)(A); 

c. Awarding Plaintiff actual damages, in an amount to be determined at 

trial, as provided under 15 U.S.C. § 1692k(a)(1);

d. Awarding Plaintiff costs and reasonable attorney fees as provided under 

15 U.S.C. § 1692k(a)(3); 

e. Awarding Plaintiff damages in the amount of $500 for each call made in

violation of the TCPA;

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f. Awarding Plaintiff treble damages for willful or knowing violations by 

Defendant of the TCPA;

g. Awarding Plaintiff $200 per violation of the CSPA, plus noneconomic 

damages up to $5,000 per violation in an amount to be determined at trial, plus 

reasonable attorney fees;

h. Awarding Plaintiff’s counsel an enhancement or multiplier of attorney 

fees pursuant to the CSPA; 

i. Awarding Plaintiff the costs of this action; and

j. Awarding any other relief as this Honorable Court deems just and 

appropriate.

A TRIAL BY JURY IS DEMANDED.

Dated: June 20, 2018

By: s/ Jonathan Hilton

Jonathan Hilton (0095742)

HILTON PARKER LLC

10400 Blacklick-Eastern Rd NW, Suite 110

Pickerington, OH 43147

Tel: (614) 992-2277

Fax: (614) 427-5557

jhilton@hiltonparker.com

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