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Fred W. Schwinn (SBN 225575)

Raeon R. Roulston (SBN 255622)

Matthew C. Salmonsen (SBN 302854)

CONSUMER LAW CENTER, INC.

12 South First Street, Suite 1014

San Jose, California 95113-2418

Telephone Number: (408) 294-6100

Facsimile Number: (408) 294-6190

Email Address: fred.schwinn@sjconsumerlaw.com

Attorneys for Plaintiff

ORLANDO PAUL BARGAS

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

ORLANDO PAUL BARGAS,

Plaintiff,

v.

ABC LEGAL SERVICES, INC., a Washington 

corporation, and KAYED ASFOUR, 

individually and in his official capacity,

 Defendants.

Case No. __________________________

COMPLAINT

DEMAND FOR JURY TRIAL

15 United States Code § 1692 et seq.

California Civil Code § 1788 et seq.

Plaintiff, ORLANDO PAUL BARGAS, based on information and belief and investigation of

counsel, except for those allegations which pertain to the named Plaintiff or his attorneys (which are

alleged on personal knowledge), hereby makes the following allegations:

INTRODUCTION

1. The Defendants in this case are process servers who have engaged in the

ignominious1 and shoddy2 practice of “sewer service” – i.e., failing to serve a debtor and filing a

1

 Velazquez v. Thompson, 451 F.2d 202, 204 (2d Cir. 1971) (“‘Sewer service’ is an ignominious practice

which is not limited to summary proceedings for the eviction of tenants but is also employed in suits on

installment payment contracts for personal property permitting repossession and garnishment, providing

a fertile field for the fleecing of the poor and the disadvantaged.”).

2

 Kovalesky v. A.M.C. Associated Merchandising Corp., 551 F. Supp. 544, 546 (S.D.N.Y. 1982)

(“‘[S]ewer service’ constitutes shoddy practice. It delays the process of justice and must be

discouraged. This court has discretion to do just that.”).

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COMPLAINT

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fraudulent affidavit attesting to service so that when the debtor later fails to appear in court, a default

judgment can be entered against him.3

In jurisdictions where process need not be served by a public official, the bulk of the

business of serving process gravitates into the hands of professional process servers.

Some of these process servers once followed a practice of disposing of process given

them to serve (e.g., by throwing it down a sewer) and then falsely returning that they had

duly served it.4

2. This is an action under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-

1692p (hereinafter “FDCPA”) and the Rosenthal Fair Debt Collection Practices Act, California Civil

Code §§ 1788-1788.33 (hereinafter “RFDCPA”) for actual damages, statutory damages, attorney fees

and costs brought by an individual consumer against process servers who engage in “sewer service.”

3. While faithful process servers are exempted from the definition of “debt collector”

under the FDCPA when they are in fact “serving or attempting to serve legal process,”5 “a process

server who goes ‘beyond being merely being a messenger . . . and engages in prohibited abusive or

harassing activities to force an individual to repay a debt’ cannot claim the exemption’s protections.”6

4. Therefore, the Defendants in this case – process servers that failed to serve court

process entrusted to them and instead provide a perjured Proof of Service of Summons – are removed

from the FDCPA’s process server exemption.7

3

 Spiegel v. Judicial Atty. Servs., 2011 U.S. Dist. LEXIS 9350 at *2 (N.D. Ill. Feb. 1, 2011).

4

 Richardson v. Alliance Tire & Rubber Co., 158 F.R.D. 475, 480, fn. 5 (D. Kan. 1994), quoting, 1

Robert C. Casad, Jurisdiction in Civil Actions § 3.017d (2nd ed. 1991).

5

 15 U.S.C. § 1692a(6)(d); See generally, Sykes v. Mel Harris & Assocs., LLC, 757 F. Supp. 2d 413,

423 (S.D.N.Y. 2010), citing Romea v. Heiberger & Assocs., 163 F.3d 111, 117 (2d Cir. 1998) (“Thus,

process servers whose involvement is merely ‘limited to serving the [debt collection] communication

on the consumer – in effect, to being messengers’ – are exempt.”).

6

 Sykes v. Mel Harris & Assocs., LLC, 757 F. Supp. 2d 413, 423 (S.D.N.Y. 2010), citing Flamm v.

Sarner & Assoc., P.C., 2002 U.S. Dist. LEXIS 22255, 2002 WL 31618443 at *5 (E.D. Pa. Nov. 6,

2002).

7

 Freeman v. ABC Legal Services, Inc., 827 F. Supp. 2d 1065, 1074 (N.D. Cal. 2011) (“if process

servers falsely claimed they had effected personal service and executed a false proof of service

document, then their actions would take them beyond their role as process servers and render them

ineligible for the [FDCPA] exception.”); Sykes v. Mel Harris & Assocs., LLC, 757 F. Supp. 2d 413

(S.D.N.Y. 2010); McNall v. Credit Bureau, 689 F. Supp. 2d 1265, 1278 (D. Or. 2010).

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COMPLAINT

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JURISDICTION

5. Jurisdiction is conferred upon this Court pursuant to 15 U.S.C. § 1692k(d) and 28

U.S.C. §§ 1331 and 1337 in that the claims alleged herein arise under the laws of the United States.

This Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367 to hear and determine Plaintiff’s

state law claims because those claims are related to Plaintiff’s federal claims and arise out of a common

nucleus of related facts and form part of the same case or controversy under Article III of the United

States Constitution.

6. This action arises out of Defendants’ violations of the Fair Debt Collection

Practices Act, 15 U.S.C. §§ 1692-1692p (“FDCPA”).

VENUE

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

substantial part of the events or omissions giving rise to the claim occurred in this judicial district.

Venue is also proper in this judicial district pursuant to 15 U.S.C. § 1692k(d), in that Defendants

transact business in this judicial district and the violations of the FDCPA complained of occurred in this

judicial district.

INTRADISTRICT ASSIGNMENT

8. This lawsuit should be assigned to the San Jose Division of this Court because a

substantial part of the events or omissions which gave rise to this lawsuit occurred in Santa Clara

County, California.

PARTIES

9. Plaintiff, ORLANDO PAUL BARGAS (hereinafter “Plaintiff”), is a natural person

residing in Santa Clara County, California. Plaintiff is a “consumer” within the meaning of 15 U.S.C. §

1692a(3) and a “debtor” within the meaning of Cal. Civil Code § 1788.2(h).

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COMPLAINT

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10. Defendant, ABC LEGAL SERVICES, INC. (hereinafter “ABC LEGAL”), is a

Washington corporation engaged in the business of composing and selling forms, documents and other

collection media used or intended to be used for debt collection. ABC LEGAL’s principal place of

business is located at: 633 Yesler Way, Seattle, Washington 98104. ABC LEGAL may be served at the

address of its Agent for Service of Process at: ABC Legal Services, Inc., c/o National Registered

Agents, Inc., 818 West Seventh Street, Suite 930, Los Angeles, California 90017. ABC LEGAL is a

corporation subject to the registration and other provisions found in Cal. Bus. & Prof. Code §§ 22350-

22360. ABC LEGAL is regularly engaged in the business of indirectly collecting defaulted consumer

debts and assisting other debt collectors to file and maintain civil debt collection lawsuits and to obtain

default judgments in those cases by utilizing the U.S. Mail, telephone, and internet. ABC LEGAL

regularly collects, directly or indirectly, defaulted consumer debts alleged to be due to another via U.S.

Mail, telephone, internet, and civil debt collection lawsuits. ABC LEGAL is a “debt collector” within

the meaning of 15 U.S.C. § 1692a(6) and Cal. Civil Code § 1788.2(c). ABC LEGAL is not subject to

the exception of 15 U.S.C. § 1692a(6)(D). ABC LEGAL is vicariously liable to Plaintiff for the acts of

Defendant, KAYED ASFOUR.

8

11. Defendant, KAYED ASFOUR (hereinafter “ASFOUR”), is a natural person and is

or was an employee and/or authorized agent of ABC LEGAL at all relevant times. ASFOUR is in the

business of composing and selling of forms, documents and other collection media used or intended to

be used for debt collection. ASFOUR is an individual subject to the registration and other provisions

found in Cal. Bus. & Prof. Code §§ 22350-22360. ASFOUR may be served at his current residence

8

 Cal. Bus. & Prof. Code § 22356. (“A registrant shall be responsible at all times for the good conduct

of his or her employees acting within the course or scope of their employment, and any person acting as

an independent contractor within the course or scope of the agency relationship with the registrant.”),

Freeman v. ABC Legal Servs., Inc., 827 F. Supp. 2d 1065, 1076 (N.D. Cal. 2011) (“if an entity is a debt

collector and hence subject to the FDCPA, it should bear the burden of monitoring the activities of

those it enlists to collect debts on its behalf.”); Fox v. Citicorp Credit Servs., 15 F.3d 1507, 1516 (9th

Cir. 1994).

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COMPLAINT

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address at: Kayed Asfour, 8517 Emerson Court, Gilroy, California 95020. ASFOUR is regularly

engaged in the business of indirectly collecting defaulted consumer debts by assisting other debt

collectors to file and maintain civil debt collection lawsuits and to obtain default judgments in those

cases by utilizing the U.S. Mail, telephone and internet. ASFOUR regularly collects, directly or

indirectly, defaulted consumer debts alleged to be due to another via U.S. Mail, telephone, internet, and

civil debt collection lawsuits. ASFOUR is a “debt collector” within the meaning of 15 U.S.C. §

1692a(6) and Cal. Civil Code § 1788.2(c). ASFOUR is not subject to the exemption provided by 15

U.S.C. § 1692a(6)(D).

12. At all relevant times alleged in this Complaint, Defendants, and each of them,

were regularly engaged in the business of collecting defaulted consumer debts throughout the state of

California, including Santa Clara County, by assisting other debt collectors to file and maintain civil

debt collection lawsuits and to obtain default judgments in those cases by utilizing the U.S. Mail,

telephone and internet.

13. Plaintiff is informed, believes and thereon alleges, that each and all of the

aforementioned Defendants are responsible in some manner, either by act or omission, strict liability,

fraud, deceit, fraudulent concealment, negligence, respondeat superior, breach of contract or otherwise,

for the occurrences herein alleged, and that Plaintiff’s injuries, as herein alleged, were proximately

caused by the conduct of Defendants.

14. Plaintiff is informed, believes and thereon alleges, that at all relevant times alleged

in this Complaint, each of the Defendants sued herein were the agent, servant, employer, joint venturer,

partner, division, owner, subsidiary, alias, assignee and/or alter-ego of each of the remaining Defendants

and were at all times acting within the purpose and scope of such agency, servitude, joint venture,

division, ownership, subsidiary, alias, alter-ego, partnership or employment and with the authority,

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COMPLAINT

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consent, approval and ratification of each remaining Defendant.

15. Plaintiff is informed, believes and thereon alleges, that at all relevant times alleged

in this Complaint, Defendants, and each of them, combined their property, skill or knowledge to carry

out a single business undertaking and agreed to share the control, profits and losses.

16. Plaintiff is informed, believes and thereon alleges, that at all relevant times alleged

in this Complaint, each Defendant was the co-conspirator, agent, servant, employee, assignee and/or

joint venturer of each of the other Defendants and was acting within the course and scope of said

conspiracy, agency, employment, assignment and/or joint venture and with the permission and consent

of each of the other Defendants.

17. Whenever reference is made in this Complaint to any act of any corporate or other

business Defendant, that reference shall mean that the corporation or other business did the acts alleged

in this Complaint through its officers, directors, employees, agents and/or representatives while they

were acting within the actual or ostensible scope of their authority.

18. At all relevant times alleged in this Complaint, each Defendant has committed the

acts, caused others to commit the acts, ratified the commission of the acts, or permitted others to

commit the acts alleged in this Complaint and has made, caused, ratified, or permitted others to make,

the untrue or misleading statements alleged in this Complaint. Whenever reference is made in this

Complaint to any act of Defendants, such allegation shall mean that each Defendant acted individually

and jointly with the other Defendants. The term “Defendants” wherever used in this Complaint shall

mean all named defendants.

JOINT VENTURE

19. Plaintiff is informed, believes and thereon alleges, that at all relevant times alleged

in this Complaint, Defendants, and each of them, combined their property, skill or knowledge to carry

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COMPLAINT

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out a single business undertaking and agreed to share the control, profits and losses.

20. Specifically, Plaintiff is informed, believes and thereon alleges, that:

a. ABC LEGAL is engaged in the business of manufacturing and selling

process server returns and other debt collection related activities in the State of California.

Through the use of the U.S. Mail, telephone, and the internet, ABC LEGAL advertises and

markets process service and other legal support services to attorneys, law firms, debt collectors,

government agencies, and the general public. ABC LEGAL provides the telephones, facsimile

machines, computers, software and other equipment, support staff, and facilities used by

ASFOUR and the enterprise for their process server return manufacturing activities. ABC

LEGAL composes the process server returns sold by the enterprise using their computer systems

and the data which is input into the computer systems via a website (www.abclegal.com and

www.processservice.com) by their customers, like Hunt & Henriques and its process server

agents, like ASFOUR. ABC LEGAL also acts as the public face for the enterprise through its

advertising, marketing, customer support, and customer billing for the enterprise’s services.

ABC LEGAL provides ASFOUR and the enterprise with a physical address and the marketing,

customer billing, computers, and other support infrastructure that was needed to manufacture

and sell Proof of Service of Summons documents to Hunt & Henriques for use in the state court

the lawsuit against Plaintiff. ABC LEGAL provides advertising, marketing, a physical address

and their support staff, equipment, and facilities to the enterprise, and in return receives a share

of the profits realized by the enterprise from their process server return manufacturing activities.

Notwithstanding their use of ABC LEGAL’s mailing address and telephone number on the

process server returns manufactured and sold by the enterprise, Plaintiff is informed, believes

and thereon alleges, that ABC LEGAL will not accept service of process for ASFOUR or any of

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COMPLAINT

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its other process server agents, thereby acting as a litigation shield should one of their process

server agents be sued for their unlawful activities.

b. ASFOUR is an individual and is, or was at all relevant times, a registered

process server in Santa Clara County, California. ASFOUR lent his name, signature, and the

legitimacy of his process server registration number to the enterprise for use on the Proof of

Service of Summons that was manufactured and sold to Hunt & Henriques and used in the state

court lawsuit against Plaintiff. ASFOUR and other registered process servers provide the facial

legitimacy of their process server registrations to the enterprise, and in return receive a share of

the profits realized by the enterprise from their process server return manufacturing activities.

Without ASFOUR and other registered process servers, and the facial legitimacy of their

registration numbers, ABC LEGAL could not market and sell process server returns like the

Proof of Service of Summons document that was manufactured and sold to Hunt & Henriques

for use in the state court lawsuit against Plaintiff.

21. Plaintiff is informed, believes and thereon alleges, that process server services are

an integral part of ABC LEGAL’s business and that ABC LEGAL could not offer such services without

its process server agents, like ASFOUR.

AIDING AND ABETTING

22. Plaintiff is informed, believes and thereon alleges, that at all relevant times alleged

in this Complaint, ABC LEGAL aided and abetted the fraud, perjury, breach of official duty, and other

wrongful acts committed by ASFOUR.

23. Plaintiff is informed, believes and thereon alleges, that ABC LEGAL marketed its

Proof of Service of Summons product to law firms, debt collectors, government agencies, and the

general public, including Hunt & Henriques as a legitimate and lawful service. Plaintiff is informed,

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COMPLAINT

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believes and thereon alleges, that ABC LEGAL represented or implied in their advertising, marketing,

and other materials that ABC LEGAL would ensure that the official court process entrusted to them

would be duly, faithfully, and lawfully served and delivered to lawsuit defendants, including the

Plaintiff.

24. Plaintiff is informed, believes and thereon alleges, that instead of duly, faithfully

and lawfully delivering and serving the official court process entrusted to it, ABC LEGAL enlisted

ASFOUR and other registered process servers to manufacture process server returns – like the Proof of

Service of Summons document that was sold to Hunt & Henriques and used in the state court lawsuit

against the Plaintiff in this case.

25. Plaintiff is informed, believes and thereon alleges, that ABC LEGAL willingly,

knowingly, and intentionally provides its registered agent process servers, like ASFOUR, with a

business mailing address and telephone number for use on the process server returns that the enterprise

manufactures and sells, like the Proof of Service of Summons document that was sold to Hunt &

Henriques and used in the state court lawsuit against the Plaintiff in this case, and by intentionally

withholding ASFOUR’s true address and telephone number, ABC LEGAL aided and abetted the fraud,

perjury, breach of official duty, and other wrongful acts committed by ASFOUR against Plaintiff.

26. Plaintiff is informed, believes and thereon alleges, that ABC LEGAL authorized,

used, and ratified the use of its mailing address and telephone number on process server returns

manufactured and sold by the enterprise with the intent to shield its process server agents, like

ASFOUR, from service of process should they be sued for their unlawful activities. Notwithstanding

their use of ABC LEGAL’s mailing address and telephone number on the process server returns

manufactured and sold by the enterprise, Plaintiff is informed, believes and thereon alleges, that ABC

LEGAL will not accept service of process for ASFOUR or any of its other process server agents when

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COMPLAINT

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service of process is attempted at the address provided on its Proof of Service of Summons documents.

27. Plaintiff is informed, believes and thereon alleges, that at all relevant times alleged

in this Complaint, ABC LEGAL knew that fraud, perjury, breach of official duty, and other wrongful

acts were being committed by ASFOUR against the Plaintiff and others. In fact, ABC LEGAL gave

substantial assistance and encouragement to ASFOUR by producing fully completed Proof of Service

of Summons documents which contain ASFOUR’s name and process server registration number and

ABC LEGAL’s mailing address and telephone number instead of ASFOUR’s address and telephone

number.

28. Plaintiff is informed, believes and thereon alleges, that at all relevant times alleged

in this Complaint, ABC LEGAL effectively controlled its process server agents, including ASFOUR,

by inter alia:

a. choosing which assignments each process server agent will receive (i.e.,

controlling what work must be performed by a specific individual);

b. requiring personal performance of the tasks assigned to its process server

agents (i.e., controlling what work must be performed by a specific individual);

c. forbidding or severely restricting its process server agents’ ability to

substitute or assign their performance of the assigned tasks (i.e., controlling what work must be

performed by a specific individual);

d. requiring detailed reporting to ABC LEGAL of all service attempts made by

their process server agents (i.e., controlling the manner in which the assigned tasks are

performed and requiring regular written reports);

e. requiring the use of ABC LEGAL’s computer systems and software for the

performance of their process server agents’ assigned duties (i.e., controlling what tools and

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COMPLAINT

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equipment must be used to perform the assigned tasks and the manner in which the assigned

tasks are performed), and

f. requiring its process server agents maintain specified minimum automobile

liability insurance and $1,000,000 in professional liability insurance coverage, that ABC

LEGAL be named as as additional insured in all such insurance policies, and requiring

immediate notification from its process server agents should said insurance policies be canceled

or not renewed (i.e., controlling business practices and decisions).

29. Through the use of the GPS tracking devices all ABC LEGAL process server

agents are required to carry, and the real-time reporting and tracking data that these devices provide,

ABC LEGAL is able to track in real-time the movements of all its process server agents.

30. Plaintiff is informed, believes and thereon alleges, that ABC LEGAL’s conduct

was a substantial factor in causing the harm to Plaintiff. ABC LEGAL should be held responsible as an

aider and abettor for the fraud, breach of official duty, and other wrongful acts committed by ASFOUR

against the Plaintiff.

RATIFICATION

31. Plaintiff is informed, believes and thereon alleges, that ABC LEGAL is

responsible for the harm caused by ASFOUR’s unlawful conduct because ABC LEGAL approved

ASFOUR’s unlawful conduct after it occurred.

32. Plaintiff is informed, believes and thereon alleges, that ASFOUR intended to act

on behalf of ABC LEGAL when he accepted the assignments from ABC LEGAL to serve state court

process on Plaintiff.

33. Plaintiff is informed, believes and thereon alleges, that ASFOUR intended to act

on behalf of ABC LEGAL when he subsequently failed to serve the state court process on Plaintiff that

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COMPLAINT

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had been entrusted to him and instead provided false and fraudulent information to ABC LEGAL

regarding the completion of his assignment.

34. Plaintiff is informed, believes and thereon alleges, that ABC LEGAL learned of

ASFOUR’s failure to faithfully serve the state court process that ABC LEGAL had entrusted to him

after it occurred.

35. Plaintiff is informed, believes and thereon alleges, that ABC LEGAL approved

ASFOUR’s unlawful conduct by voluntarily keeping the benefits of ASFOUR’s unlawful conduct after

learning of the conduct.

36. Plaintiff is informed, believes and thereon alleges, that ABC LEGAL approved

ASFOUR’s unlawful conduct as alleged in this case by continuing to employ ASFOUR and continuing

to assign process server assignments to ASFOUR after learning that ASFOUR had engaged in sewer

service.

37. As a result of ABC LEGAL’s ratification of ASFOUR’s unlawful conduct, ABC

LEGAL is liable to Plaintiff for all damages alleged in this case.

NONDELEGABLE DUTY

38. California Business and Professions Code § 22356 provides as follows:

A registrant shall be responsible at all times for the good conduct of his or her employees

acting within the course or scope of their employment, and any person acting as an

independent contractor within the course or scope of the agency relationship with the

registrant.

39. By enacting this statute, the California legislature sought to implement specific

safeguards for the general public to insure that process server agencies like, ABC LEGAL faithfully

and honestly carry out their responsibilities to the courts of California and to the general public.

40. Plaintiff is informed, believes and thereon alleges, that ASFOUR was acting

within the course and scope of his employment/agency relationship with ABC LEGAL at all times

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COMPLAINT

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alleged in this Complaint.

41. ABC LEGAL had a nondelegable duty to Plaintiff to ensure that the state court

process entrusted to it was faithfully served on Plaintiff, and that its employees and agents did not

engage in sewer service.

42. Because ABC LEGAL could not delegate to ASFOUR its duty to faithfully and

honestly serve Plaintiff with the state court process entrusted to it, ABC LEGAL is liable to Plaintiff for

all damages alleged in this case.

FACTUAL ALLEGATIONS

43. On a date or dates unknown to Plaintiff, Plaintiff is alleged to have incurred a

financial obligation, namely a consumer credit account issued by General Electric Capital (hereinafter

the “debt”). The debt was incurred primarily for personal, family or household purposes and is

therefore a “debt” as that term is defined by 15 U.S.C. § 1692a(5) and a “consumer debt” as that term is

defined by Cal. Civil Code § 1788.2(f).

44. Sometime thereafter, on a date unknown to Plaintiff, Plaintiff was no longer able

to make the payments on the debt and defaulted.

45. Plaintiff is informed and believes, and thereon alleges, that sometime thereafter on

a date unknown to Plaintiff, the debt was consigned, placed, or otherwise assigned to Hunt & Henriques

for collection from Plaintiff.

46. Thereafter, on or about January 13, 2016, Hunt & Henriques filed a lawsuit against

Plaintiff in the Superior Court of Santa Clara County, captioned Portfolio Recovery Associates, LLC v.

Orlando Bargas, et al., and assigned Case No. 2016-1-CV-290617 (hereinafter “the state court action”),

in an attempt to collect the defaulted consumer debt.

47. Plaintiff is informed and believes, and thereon alleges, that Hunt & Henriques

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COMPLAINT

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thereafter engaged Defendants to duly and faithfully serve legal process in the state court action upon

Plaintiff by delivering a copy of the state court Summons and Complaint.

48. Plaintiff is informed and believes, and thereon alleges that on or about February 6,

2016, Defendants composed a document titled Proof of Service of Summons in which Defendants

represented, under penalty of perjury, that ASFOUR had personally served Plaintiff with a copy of the

Summons, Complaint, and related documents in the state court action on February 1, 2016, at 3:56 p.m.

49. Thereafter, Defendants caused the Proof of Service of Summons to be filed with

the Clerk of the Superior Court in the state court action on February 9, 2016. A true and correct copy of

the Proof of Service of Summons filed in the state court action is attached hereto, marked as Exhibit

“1,” and by this reference is incorporated herein.

50. Despite the representations made by Defendants in their Proof of Service of

Summons (Exhibit “1”), Plaintiff was not served with a copy of the Summons and Complaint in the

state court action, by personal service or otherwise. The Proof of Service of Summons document

composed by Defendants appears facially valid – indeed, Defendants’ very purpose is to pass facial

review – hoping the fraud goes undetected until the debtor discovers the fraudulent proof of service

after a default judgment has been entered.

51. Plaintiff is informed and believes, and thereon alleges that the address used on the

Proof of Service of Summons (Exhibit “1”), (i.e., 201 South Figueroa Street, Suite 100, Los Angeles,

CA 90012) was, at all relevant times alleged herein, the business address of ABC LEGAL and not the

address of ASFOUR as represented in the document.

52. Plaintiff is informed and believes, and thereon alleges that the telephone number

used on the Proof of Service of Summons (Exhibit “1”), (i.e., 213-621-9999) was, at all relevant times

alleged herein, the business telephone number of ABC LEGAL and not the telephone number of

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ASFOUR as represented in the document.

53. Plaintiff is informed and believes, and thereon alleges that Defendants knowingly

and willfully composed and sold to Hunt & Henriques the Proof of Service of Summons (Exhibit “1”)

containing false statements regarding their service of court process in the state court action.

54. According to the Proof of Service of Summons (Exhibit “1”), Defendants, acting

together, sold the process server return to Hunt & Henriques for $59.00.

ABC LEGAL’s Business Practices

55. Plaintiff is informed and believes, and thereon alleges that ABC LEGAL

composes and sells process server returns, like the Proof of Service Summons (Exhibit “1”) in this case,

on a flat rate or fixed fee basis. Plaintiff is informed and believes, and thereon alleges that ABC

LEGAL pays its process servers using a similar flat rate or fixed fee compensation system. Plaintiff is

informed and believes, and thereon alleges that ABC LEGAL will pay ASFOUR and other process

servers only for successful service attempts (i.e. service attempts which result in a completed serve

being reported) and will pay substantially less or nothing at all for failed service attempts (i.e. service

attempts that do not result in a successful completed serve being reported). Because ABC LEGAL’s

process servers are not paid for unsuccessful service attempts, process servers like ASFOUR have a

strong financial incentive to falsify process server returns. Plaintiff is informed and believes, and

thereon alleges that ABC LEGAL knowingly promotes the false reporting of actual service by its

process server agents through its flat rate or fixed fee compensation system.

56. Plaintiff is informed and believes, and thereon alleges that ABC LEGAL charges a

flat fee that is substantially less than the true costs of proper service in many cases. Plaintiff is

informed and believes, and thereon alleges that ABC LEGAL’s lower rates can only be achieved by use

of a flat rate or fixed fee compensation system for its process servers. Such business practices create a

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rush to the bottom by forcing competitors to lower the fees paid to their more scrupulous process

servers or go out of business. More false process server returns from all process server agencies is the

inevitable result of such anti-competitive business practices. Plaintiff is informed and believes, and

thereon alleges that ABC LEGAL effectively sells sewer service, by underbidding the true costs of

proper service.

57. Debt collection law firms and debt buyers plainly benefit from the sewer service

provided by unscrupulous process servers like Defendants in this case. By not serving consumer debt

defendants, debt collection firms like Hunt & Henriques and debt buyers like Portfolio Recovery

Associates, LLC, are able to generate thousands of judgments by default. Once default judgments are

fraudulently obtained, they are used to levy consumers’ bank accounts, garnish their wages, seize their

property, damage their credit reports, and/or pressure them into unaffordable payment plans.

58. Plaintiff is informed and believes, and thereon alleges that Defendants’

composition and sale of perjured Proof of Service of Summons (Exhibit “1”) document violates

California Code of Civil Procedure § 417.10.

59. Under California law, the return of a registered process server “establishes a

presumption, affecting the burden of producing evidence, of the facts stated in the return.” 9 “The effect

of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the

existence of the presumed fact unless and until evidence is introduced which would support a finding of

its nonexistence. . .”10 Defendants’ composition and sale of perjured process server returns, like the

Proof of Service of Summons (Exhibit “1”) document in this case, is facilitated and aided by the

evidentiary presumption California law provides to faithful process servers. In fact, Defendants in this

case are perversely protected by, and rely on, the extreme procedural and evidentiary burdens that are

9

 Cal. Evidence Code § 647.

10 Cal. Evidence Code § 604.

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imposed on litigants who are the victims of sewer service. Such litigants are faced with the nearly

impossible “burden of providing strong and convincing evidence of non-service.”11 Because “a mere

allegation that process was not served, without some additional showing of evidence is insufficient to

refute the validity of an affidavit of service,”12 victims of sewer service, like Plaintiff in this case, are

ultimately required to prove a negative;13 they must prove that an event never occurred; and their own

sworn testimony of non-service is not enough to meet their evidentiary burden under California law.

Because of this procedural and evidentiary imbalance, the unlawful conduct alleged in this Complaint is

particularly reprehensible.

60. Plaintiff is informed and believes, and thereon alleges, that Defendants have

composed and sold false and misleading Proof of Service of Summons documents in the form of

Exhibit “1” more than 40 times in California in the one year preceding the filing of this Complaint.

Therefore, Plaintiff may seek leave to amend this Complaint to add class allegations at a later date.

CLAIMS

FAIR DEBT COLLECTION PRACTICES ACT

61. Plaintiff brings the first claim for relief against Defendants under the Fair Debt

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

62. Plaintiff incorporates all paragraphs in this Complaint as though fully set forth

herein.

63. Plaintiff is a “consumer” as that term is defined by the FDCPA, 15 U.S.C. §

1692a(3).

64. Defendant, ABC LEGAL, is a “debt collector” as that term is defined by the

11

 Collagen Nutraceuticaks, Inc. v. Neocell Corp., 2010 U.S. Dist. LEXIS 98229 at *3-4.

12

 Id.

13

 Elkins v. United States, 364 U.S. 206, 218 (1960) (“as a practical matter it is never easy to prove a

negative”).

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FDCPA, 15 U.S.C. § 1692a(6).

65. Defendant, ABC LEGAL, is not subject to, and cannot claim, the exemption

provided by 15 U.S.C. § 1692a(6)(D).

66. Defendant, ASFOUR, is a “debt collector” as that term is defined by the FDCPA,

15 U.S.C. § 1692a(6).

67. Defendant, ASFOUR, is not subject to, and cannot claim, the exemption provided

by 15 U.S.C. § 1692a(6)(D).

68. The financial obligation sought to be collected from Plaintiff in the state court

action is a “debt” as that term is defined by the FDCPA, 15 U.S.C. § 1692a(5).

69. Defendants violated the FDCPA, 15 U.S.C. §§ 1692d, 1692e, 1692e(2), 1692e(10)

and 1692f by making false and misleading representations, and engaging in unfair and abusive

practices. Defendants’ violations include, but are not limited to:

a. Manufacturing and selling a fraudulent Proof of Service Summons that

falsely stated that Plaintiff was served with the state court Summons and Complaint when in fact

he was not;

b. Manufacturing and selling fraudulent, deceptive, and misleading statements

and documents which are used in the collection of defaulted consumer debts; and

c. Aiding, abetting and ratifying the fraud, perjury, breach of official duty, and

other wrongful acts committed by the other Defendants in this case.

70. Defendants’ acts as described above were done intentionally with the purpose of

coercing Plaintiff to pay the debt.

71. As a result of Defendants’ violations of the FDCPA, Plaintiff is entitled to an

award of actual damages, statutory damages, costs and reasonable attorneys fees, pursuant to 15 U.S.C.

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§ 1692k.

ROSENTHAL FAIR DEBT COLLECTION PRACTICES ACT

72. Plaintiff brings the second claim for relief against Defendants under the Rosenthal

Fair Debt Collection Practices Act (“RFDCPA”), California Civil Code §§ 1788-1788.33.

73. Plaintiff incorporates all paragraphs in this Complaint as though fully set forth

herein.

74. Plaintiff is a “debtor” as that term is defined by the RFDCPA, Cal. Civil Code §

1788.2(h).

75. Defendant, ABC LEGAL, is a “debt collector” as that term is defined by the

RFDCPA, Cal. Civil Code § 1788.2(c).

76. Defendant, ASFOUR, is a “debt collector” as that term is defined by the RFDCPA,

Cal. Civil Code § 1788.2(c).

77. The financial obligation sought to be collected from Plaintiff in the state court

action is a “consumer debt” as that term is defined by the RFDCPA, Cal. Civil Code § 1788.2(f).

78. Defendants violated the RFDCPA, Cal. Civil Code §§ 1788.13(i), 1788.14(b),

1788.15(a), and 1788.17 by making false and misleading representations, and engaging in unfair and

abusive practices. Defendants’ violations include, but are not limited to:

a. Manufacturing and selling a fraudulent Proof of Service of Summons that

falsely stated that Plaintiff was served with the state court Summons and Complaint when in fact

he was not;

b. Manufacturing and selling fraudulent, deceptive, and misleading statements

and documents which are used in the collection of defaulted consumer debts; and

c. Aiding, abetting and ratifying the fraud, perjury, breach of official duty and

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other wrongful acts committed by the other Defendants in this case.

79. Defendants’ acts as described above were done willfully and knowingly, with the

purpose of coercing Plaintiff to pay the debt, within the meaning of Cal. Civil Code § 1788.30(b).

80. As a result of Defendants’ violations of the RFDCPA, Plaintiff is entitled to an

award of actual damages in an amount to be determined at trial, pursuant to Cal. Civil Code §§

1788.1714 and 1788.30(a).

81. As a result of Defendants’ willful and knowing violations of the RFDCPA,

Plaintiff is entitled to an award of a statutory penalty in an amount not less than one hundred dollars

($100) nor greater than one thousand dollars ($1,000) against each Defendant, pursuant to Cal. Civil

Code § 1788.30(b).

82. As a result of Defendants’ violations of the RFDCPA, Plaintiff is entitled to an

award of statutory damages in an amount not to exceed one thousand dollars ($1,000) against each

Defendant, pursuant to Cal. Civil Code § 1788.17.15

83. As a result of Defendants’ violations of the RFDCPA, Plaintiff is entitled to an

award of reasonable attorney’s fees and costs, pursuant to Cal. Civil Code §§ 1788.30(c) and 1788.17.16

84. Pursuant to Cal. Civil Code § 1788.32, the remedies provided under the RFDCPA

are intended to be cumulative and in addition to any other procedures, rights or remedies that Plaintiff

may have under any other provision of law.

REQUEST FOR RELIEF

Plaintiff request that this Court:

a) Assume jurisdiction in this proceeding;

b) Declare that Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. §§

14 15 U.S.C.§ 1692k(a)(1).

15 15 U.S.C.§ 1692k(a)(2)(A).

16 15 U.S.C.§ 1692k(a)(3).

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1692d, 1692e, 1692e(2), 1692e(10) and 1692f;

c) Declare that Defendants violated the Rosenthal Fair Debt Collection Practices Act, Cal.

Civil Code §§ 1788.13(i), 1788.14(b), 1788.15(a) and 1788.17;

d) Award Plaintiff actual damages in an amount to be determined at trial, pursuant to 15

U.S.C. § 1692k(a)(1) and Cal. Civil Code §§ 1788.17 and 1788.30(a);

e) Award Plaintiff statutory damages in an amount not to exceed $1,000, pursuant to 15

U.S.C. § 1692k(a)(2)(A);

f) Award Plaintiff a statutory penalty in an amount not less than $100 nor greater than

$1,000 against each Defendant, pursuant to Cal. Civil Code § 1788.30(b);

g) Award Plaintiff statutory damages in an amount not to exceed $1,000 against each

Defendant, pursuant to Cal. Civil Code § 1788.17;17

h) Award Plaintiff the costs of this action and reasonable attorneys fees pursuant to 15

U.S.C. § 1692k(a)(3) and Cal. Civil Code §§ 1021.5, 1788.1718 and 1788.30(c); and

i) Award Plaintiff such other and further relief as may be just and proper.

CONSUMER LAW CENTER, INC.

By: /s/ Fred W. Schwinn 

Fred W. Schwinn (SBN 225575)

Raeon R. Roulston (SBN 255622)

Matthew C. Salmonsen (SBN 302854)

CONSUMER LAW CENTER, INC.

12 South First Street, Suite 1014

San Jose, California 95113-2418

Telephone Number: (408) 294-6100

Facsimile Number: (408) 294-6190

Email Address: fred.schwinn@sjconsumerlaw.com

Attorneys for Plaintiff

ORLANDO PAUL BARGAS

17 15 U.S.C. § 1692k(a)(2)(A).

18 15 U.S.C. § 1692k(a)(3).

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DEMAND FOR JURY TRIAL

PLEASE TAKE NOTICE that Plaintiff, ORLANDO PAUL BARGAS, hereby demands a trial

by jury of all triable issues of fact in the above-captioned case.

 /s/ Fred W. Schwinn 

Fred W. Schwinn, Esq.

CERTIFICATION PURSUANT TO CIVIL L.R. 3-16

Pursuant to Civil L.R. 3-16, the undersigned certifies that as of this date, other than the named

parties, there is no such interest to report.

 /s/ Fred W. Schwinn 

Fred W. Schwinn, Esq.

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