1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

SCOTT J. SAGARIA (BAR # 217981)

ELLIOT W. GALE (BAR #263326)

JOE B. ANGELO (BAR #268542)

SCOTT M. JOHNSON (BAR #287182)

SAGARIA LAW, P.C.

2033 Gateway Place, 5

th Floor 

San Jose, CA 95110

408-279-2288 ph

408-279-2299 fax

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA – SAN JOSE DIVISION

 CASE NO. 

PLAINTIFF’S COMPLAINT FOR DAMAGES:

1. Violation of the Rosenthal Fair Debt 

Collection Practices Act

2. Violation of the Telephone Consumer 

Protection Act

Tara Amado,

Plaintiff,

v.

Mid America Bank & Trust; Total Visa and 

DOES 1 through 100 inclusive,

Defendants.

COMES NOW Plaintiff Tara Amado, an individual, based on information and belief, to 

allege as follows: 

INTRODUCTION

1. This is an action for damages brought by an individual consumer for Defendant’s 

violations of the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §1788, et seq. 

(hereinafter “Rosenthal Act”), which prohibits debt collectors from engaging in abusive, 

deceptive, and unfair practices and violation of the Telephone Consumer Protection Act 47

U.S.C. §227, et seq. (hereinafter “TCPA”), which prohibits the use of automated dialing 

equipment when making calls to consumers. 

Case 5:17-cv-00300-NC Document 1 Filed 01/20/17 Page 1 of 6
2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2. Plaintiff brings this action against Defendant Mid America Bank and Trust (hereinafter

“Defendant”) and Total Vista (“Total Vista”) for its abusive and outrageous conduct in 

connection with debt collection activity. 

3. In Calif. Civil Code § 1788.1(a)-(b), the California Legislature made the following 

findings and purpose in creating the Rosenthal Act:

(a)(1) The banking and credit system and grantors of credit to consumers are dependent 

upon the collection of just and owing debts. Unfair or deceptive collection practices

undermine the public confidence which is essential to the continued functioning of the 

banking and credit system and sound extensions of credit to consumers. 

(2) There is need to ensure that debt collectors and debtors exercise their 

responsibilities to another with fairness and honesty and due regard or the rights of the 

other. 

(b) It is the purpose of this title to prohibit debt collectors from engaging in unfair or 

deceptive acts of practices in the collection of consumer debts and to require debtors to 

act fairly in entering into and honoring such debts, as specified in this title. 

4. While may violations are described below with specificity, this Complaint alleges 

violations of the statutes cited in their entirety. 

5. The TCPA was designed to prevent calls like the ones described herein, and to protect 

the privacy of citizens like Plaintiff, and by enacting the TCPA, Congress intended to give 

consumers a choice as to how corporate entities may contact them and to prevent the nuisance 

associated with automated or prerecorded calls. 

JURISDICTION & VENUE

6. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1337, and 1367, and 47 U.S.C. § 

227.

7. This venue is proper pursuant to 28 U.S.C. §1391(b). 

GENERAL ALLEGATIONS

8. Plaintiff Tara Amado (hereinafter “Plaintiff”) is an individual residing in the state of 

California, and is a “debtor” as defined by Cal. Civ. Code §1788.2(g). 

9. At all relevant times herein, Defendant First Premier was a company engaged, by the 

use of mail, email, and telephone, in the business of collecting a debt from Plaintiff, and a 

“consumer debt,” as defined by Cal. Civ. Code §1788.2(f). 

Case 5:17-cv-00300-NC Document 1 Filed 01/20/17 Page 2 of 6
3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10. At all relevant times, Defendant acted as a “debt collector” within the meaning of Cal. 

Civ. Code §1788.2(c) 

11. Plaintiff had taken out an unsecured loan with Defendant on or about November of 

2015. 

12. The loan Plaintiff took from Defendant was extended primarily for personal, family or 

household purposes and is therefore a “debt” as that terms is defined by the Calif. Civil Code § 

1788.2(d) of the Rosenthal Act. 

13. Defendant has been attempting to collect on a debt that originated from monetary 

credit that was extended primarily for personal, family, or household purposes, and was 

therefore a “consumer credit transaction” within the meaning of Calif. Civil Code § 1788.2(3) 

of the Rosenthal Act. 

14. Because Plaintiff, a natural person allegedly obligated to pay money to Defendant 

rising from what Plaintiff is informed and believes was a consumer credit transaction, the 

money allegedly owed was a “consumer debt” within the meaning of California Civil Code § 

1788.2(f) of the Rosenthal Act. 

15. Plaintiff is informed and believes that Defendant is one who regularly collects or 

attempts to collect debts on behalf of themselves, and is therefore a “debt collector” within the 

meaning of the Calif. Civil Code § 1788.2(c) of the Rosenthal Act, and thereby engages in 

“debt collection” within the meaning of the California Civil Code § 1788.2(b) of the Rosenthal 

Act, and is also therefore a “person” within the meaning of California Civil Code § 1788.2(g) 

of the Rosenthal Act. 

16. Plaintiff’s account was an unsecured loan and Plaintiff began making payments on the 

accounts. 

17. Plaintiff began making payments on the loan before she became financially unable to 

keep up with the monthly payments.

18. Defendant began contacting Plaintiff in September of 2016 to inquire about the status 

of the loan and to collect on the payments that were no longer being made. 

19. Plaintiff retained counsel to assist in dealing with Defendant’s debt and to seek some 

type of financial relief. 

Case 5:17-cv-00300-NC Document 1 Filed 01/20/17 Page 3 of 6
4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

20. Counsel for Plaintiff sent Defendant a letter confirming representation of Plaintiff and 

that Defendant was to no longer contact Plaintiff directly and that all calls/letters/collection 

efforts were to no longer be directed at Plaintiff.

21. Counsel for Plaintiff sent the letter of representation to Defendant on or about August 

9, 2016. 

22. Plaintiff informed Defendant that she was revoking her consent to be called on her

telephone in August of 2016.

23. Defendant continued to contact Plaintiff between approximately September 2, 2016 –

present; the type of contact was through nearly daily phone calls to Plaintiff.

24. Defendant would sometimes call Plaintiff two – three times each day demanding 

payment on the account.

25. Plaintiff was contacted daily nearly every day regarding non-payment of the debt 

owed to Defendant despite Defendant being notified that Plaintiff had retained counsel to deal 

specifically with the debt owed to Defendant. 

26. Defendant’s calls were frequent in nature and continued despite receiving written 

confirmation that Plaintiff was represented by an attorney. 

FIRST CAUSE OF ACTION

(Violation of the Rosenthal Act)

(Cal. Civ. Code §§ 1788-1788.32)

(Against Defendants and Does 1-100)

27. Plaintiff realleges and incorporates herein the allegation in each and every paragraph 

above as though fully set forth herein.

28. Plaintiff provided written notice that she was represented by sending Defendant a letter 

with the name, address, and contact information of her attorney and informed Defendant that she 

was represented. 

29. Defendant continued to call and attempt to make contact with Plaintiff despite receiving 

notice of representation and being informed that Plaintiff had retained counsel in an effort to deal 

with the debt that was owed to Defendant. 

30. The calls and communications made by Defendant to Plaintiff were not related to 

statements of Plaintiff’s account and were attempts to collect a debt. 

31. Plaintiff received daily calls from Defendant from at least September 2, 2016 – present.

Case 5:17-cv-00300-NC Document 1 Filed 01/20/17 Page 4 of 6
5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

32. Defendant violated Cal. Civ. Code §1788.14 by contacting Plaintiff after receiving 

noticed that Plaintiff had retained an attorney. 

SECOND CAUSE OF ACTION 

(Violation of the TCPA) 

(47 USC § 227)

(Against Defendants and Does 1-100)

33. Plaintiff realleges and incorporates herein the allegation in each and every paragraph 

above as though fully set forth herein.

34. Since at least about September 2, 2016 Defendant started calling Plaintiff’s cellular 

telephone requesting that payment be made on the accounts Plaintiff held with Defendant. 

35. Plaintiff informed Defendant that she was revoking consent to be contacted by 

Defendant on August 9, 2016. 

36. Defendant called Plaintiff at least daily since Plaintiff withdrew her consent to be 

contacted by an automatic dialing machine. 

37. Defendant would contact Plaintiff daily regarding payment on the accounts. 

38. Defendant placed the above cited calls using an artificial or prerecorded voice to deliver 

the collection messages without Plaintiff’s prior express consent. 

39. All calls placed by Defendant to Plaintiff utilized an “automatic telephone dialing 

system” as defined by 47 U.S.C. §227(a)(1). 

40. These calls were made to Plaintiff’s cellular telephone and were not calls for an 

emergency purposed as defined by 47 U.S.C. §227(b)(1)(B). 

41. These telephone calls by Defendant, or its agent, violated 47 U.S.C. §227(b)(1)(B). 

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment as follows:

a. An award of actual damages pursuant to California Civil Code §1788.30(a), as 

will be proven at trial, which are cumulative and in addition to all other 

remedies provided for in any other cause of action pursuant to California Civil 

Code §1788.32.

b. An award of statutory damages of $1,000.00 pursuant to Cal. Civ. Code 

§1788.30(b), which are cumulative and in addition to all other remedies 

provided for in California Civil Code §1788.32; and

c. An award of costs of litigation and reasonable attorney’s fees pursuant to Cal. 

Case 5:17-cv-00300-NC Document 1 Filed 01/20/17 Page 5 of 6
6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Civ. Code §1788.30(c).

d. An award of statutory damages of $1,500.00 pursuant to 47 U.S.C. 

§227(b)(3)(C) for each and every violation. 

e. Pursuant to 47 U.S.C. §227(b)(3)(A), injunctive relief prohibiting such conduct 

in the future. 

SAGARIA LAW, P.C.

Dated: January 20, 2017 By: /s/ Scott Johnson

Scott Sagaria, Esq.

Scott Johnson, Esq.

Attorneys for Plaintiff

DEMAND FOR JURY TRIAL

Plaintiff hereby demands trial of this matter by jury.

SAGARIA LAW, P.C.

Dated: January 20, 2017 /s/ Scott Johnson

Scott Sagaria, Esq.

Scott Johnson, Esq.

Attorneys for Plaintiff

Case 5:17-cv-00300-NC Document 1 Filed 01/20/17 Page 6 of 6