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Floyd W. Bybee, SB 012651

BYBEE LAW CENTER, PLC

90 S. Kyrene Rd., Ste. 5

Chandler, AZ 85226-4687

Office: (480) 756-8822

Fax: (480) 302-4186

floyd@bybeelaw.com

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

 

)

Paul Jarosik; )

)

)

)

Plaintiff, )

)

v. )

)

U.S. Bank National Association; )

)

)

)

Defendant. )

)

 )

No. 

COMPLAINT

(Jury Trial Demanded)

Preliminary Statement

1. Plaintiff alleges that two credit card accounts and one checking or

savings account with overdraft protection were opened in his name

with Defendant US Bank National Association by an imposter. The

imposter made purchases or charges to the accounts for which

Plaintiff was billed. Even though Plaintiff contested all three

accounts, US Bank continued to seek payment from Plaintiff for

one of these fraudulent accounts. 

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2. Plaintiff seeks actual damages, statutory damages, and attorney’s

fees for US Bank’s violation of the Fair Credit Billing Act (FCBA)

(part of the Truth in Lending Act), 15 U.S.C. § 1666 and Regulation

Z, for violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C.

§ 1681 et seq., and for negligence. 

Jurisdiction and Venue

3. Jurisdiction over this action is premised upon 15 U.S.C. § 1640(e),

15 U.S.C. § 1681p, and 28 U.S.C. §§ 1331 and 1367.

4. Venue is proper in this District under 28 U.S.C. § 1391(b), in that

Defendant’s conduct complained of occurred within the District.

Parties

5. Defendant US Bank is a nationally chartered bank regulated by

the Office of the Comptroller of Currency.

6. US Bank regularly conducts business within the state of Arizona. 

7. US Bank is a “person” as defined by the FCRA, 15 U.S.C. §

1681a(b).

8. At all times relevant hereto, US Bank, in the ordinary course of

business, regularly extended open-end consumer credit on which it

assessed finance charges. 

9. Plaintiff Paul Jarosik is an individual residing in Maricopa County,

Arizona. 

10. Plaintiff is a “consumer” as defined by the FCRA, 15 U.S.C. §

1681a(c).

11. Plaintiff is alleged to have entered into three open-end credit

transactions, namely two credit cards and an overdraft protection

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account, with US Bank for personal, family or household purposes. 

Facts

12. In the summer of 2017, Plaintiff learned that he was a victim of

identity theft.

13. In July 2017, Plaintiff received a copy of his consumer report from

Credit Karma which showed an inquiry made by US Bank.

14. Shortly thereafter, Plaintiff received a phone call from US Bank

wanting him to make payments on a US Bank credit card.

15. During the call, Plaintiff explained that he had no US Bank credit

cards or other accounts, and that the account the bank was calling

about must have been fraudulently opened.

16. During that call, Plaintiff learned that an unidentified imposter

had opened the US Bank accounts using an address in Missouri, a

state in which Plaintiff has never lived. 

17. Plaintiff explained during this call that he had never received

anything from US Bank concerning the account(s), including the

credit card(s), any billing statements, or any other written communication. 

18. On July 27, 2017, Plaintiff followed up with US Bank’s fraud and

identity theft office and spoke to a person named “Lance.”

19. During his call with Lance, Plaintiff again disputed the fraudulently opened accounts.

20. In response to Plaintiff’s call, US Bank sent Plaintiff a letter dated

July 28, 2017 asking that certain documents be provided in order

for it to complete its investigation.

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21. After receiving the July 28, 2017 letter, Plaintiff mailed to US

Bank the completed the ID Theft Affidavit, together with a copy of

his driver’s license, a copy of a utility bill, a copy of his Social

Security Card, and a copy of the Chandler Police Report.

22. Shortly thereafter, US Bank notified Plaintiff by letter dated

August 4, 2017, that the overdraft protection account and the

credit card account ending with the last four digits of 3117, had

both been determined to be fraudulently opened and used, and that

the bank was closing these accounts without any liability to Plaintiff.

23. US Bank also notified Plaintiff by letter dated August 11, 2017

that the overdraft protection account opened in his name has been

closed as fraudulent, and that he would not be responsible for any

balances related to the account.

24. However, on August 8, 2017, Plaintiff received a call from an

individual named “Brian” from US Bank who had been assigned to

investigate his fraud case.

25. During this call, Plaintiff informed Brian that any and all accounts

with US Bank opened in his name were fraudulent and the result

of identity theft. 

26. Plaintiff explained that the address in Missouri was not his, and

that in fact he had never resided in the state of Missouri.

27. He also explained that the charges, which were all or mostly made

within the state of Missouri, were not his, and that he had no

knowledge of them.

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28. Plaintiff also stated that he had mailed US Bank the completed ID

Theft Affidavit and supporting documents on August 7, 2017,

which Brian claimed had not been received.

29. Beginning on August 22, 2017, Plaintiff began receiving calls from

an individual by the name of “Pam” who was with the US Bank

card member services office.

30. During these calls, Pam repeatedly asked Plaintiff about making

the payments on the remaining credit card account. 

31. Again, Plaintiff reiterated to Pam that there were three accounts

opened, and that two had been determined to be fraudulent, and

that the remaining account was also fraudulently opened by the

same imposter using Plaintiff’s name and personal identification

information.

32. On August 24, 2017, Plaintiff received another call from Brian with

US Bank.

33. During this call, Brian told Plaintiff that he had not received his

ID Theft Affidavit and supporting documents. 

34. During this call, Brian also told Plaintiff that he had denied Plaintiff’s fraud claim and that he would be liable for the $19,000

balance.

35. Brian told Plaintiff during this call that he believed Plaintiff had

gone into an anonymous chat room and provided his personal

information to someone in Springfield, Missouri, leading to the

fraudulent accounts and purchases. 

36. Brian did not explain how he had come to such a conclusion.

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37. Immediately after the call with Brian, Plaintiff, who was out of

town, called his wife and asked her to fax US Bank the ID Theft

Affidavit and supporting documents, which she did.

38. Nevertheless, US Bank notified Plaintiff by letter dated August 22,

2017 that it had determined that the credit card account ending

with the last four digits of 1835 “[did] not qualify as unauthorized

third party fraud.”

39. The August 22, 2017 letter also stated that Plaintiff “will be responsible for payment of your fraud claim totaling $19,523.27 on

the due date of the next billing statement.” 

40. The August 22, 2017 letter was signed by Brian P, Fraud Investigator. 

41. Upon information and belief, this was the same Brian to whom

Plaintiff had previously spoken.

42. US Bank sent Plaintiff a second letter dated August 22, 2107,

which stated that the credit card account ending in 1835 has been

cancelled due to “Fraud claim proved to be an intentionally false

claim.” 

43. This August 22, 2017 letter was also signed by Brian P., Fraud

Investigator.

44. Plaintiff also hired legal counsel to assist him in challenging US

Bank on its determination that the credit card account ending in

1835 “[did] not qualify as unauthorized third party fraud,” that the

“Fraud claim proved to be an intentionally false claim,” and that

Plaintiff “will be responsible for payment of your fraud claim

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totaling $19,523.27 on the due date of the next billing statement.” 

45. On August 28, 2107, Plaintiff obtained a copy of his Equifax consumer report.

46. The Equifax report showed that US Bank was reporting two accounts: a credit card with a balance of $19,249; and a line of credit

with a balance of $2,518.

47. The Equifax report also showed that US Bank had obtained a

consumer report on Plaintiff on June 19, 2017.

48. The inquiry on June 19, 2017 was made without Plaintiff’s permission, and for a purpose outside the scope of permissible purposes

under the FCRA.

49. Plaintiff also obtained a copy of his Experian consumer report on

August 28, 2107. 

50. The Experian report showed that US Bank was reporting two

accounts: a credit card with a balance of $19,249; and a reserve line

of credit with a balance of $2,518.

51. The Experian report also showed two Springfield, Missouri addresses which did not belong to Plaintiff. 

52. Upon information and belief, US Bank reported the two Springfield, Missouri addresses to Experian as belonging to Plaintiff.

53. On August 28, 2107, Plaintiff obtained a copy of his Trans Union

consumer report.

54. The Trans Union report showed that US Bank was reporting two

accounts: a credit card with a balance of $19,249; and a line of

credit with a balance of $2,518.

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55. The Trans Union report showed that US Bank had obtained a

consumer report on Plaintiff on April 30, 2017.

56. The Trans Union report states that this inquiry was a “consumer

initiated transaction,” which is false.

57. The inquiry on April 30, 2017 was made without Plaintiff’s permission, and for a purpose outside the scope of permissible purposes

under the FCRA.

58. The Trans Union report also showed that US Bank had obtained a

consumer report on Plaintiff on July 28, 2017.

59. The inquiry on July 28, 2107 was made by US Bank after Plaintiff

had notified the bank that the accounts it had opened in his name

were fraudulent, and made by an imposter. 

60. The inquiry on July 28, 2017 was willfully made without Plaintiff’s

permission, and for a purpose outside the scope of permissible

purposes under the FCRA.

61. The Trans Union report also showed two Springfield, Missouri

addresses which did not belong to Plaintiff. 

62. Upon information and belief, US Bank had reported the two

Springfield, Missouri addresses to Trans Union as belonging to

Plaintiff.

63. Plaintiff mailed his written dispute to US Bank within 60 days of

any billing statement generated by US Bank concerning the credit

card account(s). 

64. Despite receipt of Plaintiff’s dispute of the fraudulent credit card

account(s), and before meeting the requirements of 15 U.S.C. §

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1666 to either correct the error or investigate and send an explanation of the charges, US Bank took action to collect the disputed

credit card balance(s) by demanding payment.

65. US Bank’s actions as set forth above were negligent resulting in

damages suffered by Plaintiff.

66. As a result of US Bank’s action as set forth above, Plaintiff has

suffered actual damages, including, but not limited to, out of pocket

expenditures, invasion of privacy, damage to credit reputation,

damage to personal reputation, extreme frustration, hurt, anxiety,

worry, loss of appetite, loss of sleep, upset stomach, and other

emotional distress. 

Count I. Violation of FCBA

67. Plaintiff incorporates the preceding paragraphs.

68. US Bank actions did not comport with the requirements under the

FCBA.

69. As a result of US Bank’s violations of the FCBA, Plaintiff has

suffered actual damages, including, but not limited to, out of pocket

expenditures, invasion of privacy, damage to credit reputation,

damage to personal reputation, extreme frustration, hurt, anxiety,

worry, loss of appetite, loss of sleep, upset stomach, and other

emotional distress. 

Count II. Violation of FCRA

Negligently Obtaining Consumer Report

Without Permissible Purpose

70. Plaintiff incorporates the preceding paragraphs.

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71. US Bank acted negligently in requesting and obtaining Plaintiff’s

consumer reports without a permissible purpose.

72. US Bank’s conduct in requesting and obtaining Plaintiff’s consumer reports without a permissible purpose violated 15 U.S.C.

§1681b(f).

73. As a result of US Bank’s violations of the FCRA, Plaintiff has

suffered actual damages, including, but not limited to, out of pocket

expenditures, invasion of privacy, damage to credit reputation,

damage to personal reputation, extreme frustration, hurt, anxiety,

worry, loss of appetite, loss of sleep, upset stomach, and other

emotional distress. 

Count III. Violation of FCRA

Willfully Obtaining Consumer Report

Without Permissible Purpose

74. Plaintiff incorporates the preceding paragraphs.

75. US Bank acted willfully in requesting and obtaining Plaintiff’s

consumer reports without a permissible purpose.

76. US Bank’s conduct in requesting and obtaining Plaintiff’s consumer reports without a permissible purpose violated 15 U.S.C.

§1681b(f).

77. As a result of US Bank’s violations of the FCRA, Plaintiff has

suffered actual damages, including, but not limited to, out of pocket

expenditures, invasion of privacy, damage to credit reputation,

damage to personal reputation, extreme frustration, hurt, anxiety,

worry, loss of appetite, loss of sleep, upset stomach, and other

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emotional distress. 

IV. Negligence.

78. Plaintiff incorporates the preceding paragraphs.

79. US Bank acted negligently when it opened three credit accounts in

Plaintiff’s name without verifying that the imposter using Plaintiff’s personal identification information was actually Plaintiff. 

80. US Bank acted negligently when it investigated Plaintiff’s disputes

of the three credit accounts, determining that the credit card

account ending in 1835 “[did] not qualify as unauthorized third

party fraud,” that the “Fraud claim proved to be an intentionally

false claim,” and that Plaintiff “will be responsible for payment of

your fraud claim totaling $19,523.27 on the due date of the next

billing statement.” 

81. As a result of US Bank’s negligence, Plaintiff has suffered actual

damages, including, but not limited to, out of pocket expenditures,

invasion of privacy, damage to credit reputation, damage to personal reputation, extreme frustration, hurt, anxiety, worry, loss of

appetite, loss of sleep, upset stomach, and other emotional distress.

WHEREFORE, Plaintiff requests that this Court enter judgment

in his favor and against defendant US Bank as follows:

A. actual damages;

B. statutory damages under the FCBA in the amount of double

the finance charge, with a minimum of $500 and maximum

of $5,000, pursuant to 15 U.S.C. 1640(a)(2); 

C. pursuant to the FCRA, 15 U.S.C. § 1681n(a)(1)(A), award

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Plaintiff his actual damages, or in the alternative, statutory

damages of not less than $100 and not more than $1,000 for

each impermissible access of his credit report, whichever is

greater;

D. pursuant to the FCRA, 15 U.S.C. § 1681n(a)(2), award such

punitive damages as the Court deems appropriate;

E. pursuant to the FCRA, 15 U.S.C. § 1681n(a)(3), award costs

of the action and reasonable attorney fees; and

F. grant such other and further relief as the court deems just

and proper.

Demand for Jury Trial

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

RESPECTFULLY SUBMITTED: December 21, 2017 .

 s/ Floyd W. Bybee 

Floyd W. Bybee, #012651

BYBEE LAW CENTER, PLC

90 S. Kyrene Rd., Ste. 5

Chandler, AZ 85226-4687

Office: (480) 756-8822

Fax: (480) 302-4186

floyd@bybeelaw.com

Attorney for Plaintiff 

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