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Russell S. Thompson IV (029098)

Joseph Panvini (028359)

Thompson Consumer Law Group, PLLC

5235 E. Southern Ave., D106-618

Mesa, AZ 85206

Telephone: (602) 388-8898

Facsimile: (866) 317-2674

rthompson@consumerlawinfo.com

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Kathleen Whittaker,

Plaintiff,

vs.

Midland Credit Management, Inc. and 

Midland Funding, LLC,

Defendants.

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Case No. 

COMPLAINT AND TRIAL BY JURY 

DEMAND

NATURE OF ACTION

1. Plaintiff Kathleen Whittaker (“Plaintiff”) brings this action against 

Defendants Midland Credit Management, Inc. (“MCM”) and Midland Funding, LLC 

(“Midland Funding”) (collectively, “Defendants”) pursuant to the Fair Debt Collection 

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

JURISDICTION, VENUE, AND STANDING

2. This Court has jurisdiction pursuant to 15 U.S.C. § 1692k(d) and 28 U.S.C. 

§ 1331. 

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3. Venue is proper before this Court pursuant to 28 U.S.C. § 1391(b), where 

the acts and transactions giving rise to Plaintiff’s action occurred in this district, where 

Plaintiff resides in this district, and where Defendants transact business in this district. 

4. “In determining whether an intangible harm constitutes injury in fact, both 

history and the judgment of Congress play important roles.” Spokeo, Inc. v. Robins, 136 

S. Ct. 1540, 1549, 194 L. Ed. 2d 635 (2016), as revised (May 24, 2016). Congress is 

“well positioned to identify intangible harms that meet minimum Article III 

requirements,” thus “Congress may ‘elevat[e] to the status of legally cognizable injuries 

concrete, de facto injuries that were previously inadequate in law.’” Id. (quoting Lujan v. 

Defs of Wildlife, 504 U.S. 555, 578 (1992)).

5. “Without the protections of the FDCPA, Congress determined, the 

‘[e]xisting laws and procedures for redressing these injuries are inadequate to protect 

consumers.’” Lane v. Bayview Loan Servicing, LLC, No. 15 C 10446, 2016 WL 

3671467, at *3 (N.D. Ill. July 11, 2016) (quoting 15 U.S.C. § 1692(b)). Thus, a failure to 

honor a consumer’s right under the FDCPA constitutes an injury in fact for Article III 

standing. See id. at *3 (holding that a consumer “has alleged a sufficiently concrete 

injury because he alleges that [Defendant] denied him the right to information due to him 

under the FDCPA”); see also Church v. Accretive Health, Inc., No. 15-15708, 2016 WL 

3611543, at *3 (11th Cir. July 6, 2016) (holding that consumer’s § 1692g claim was 

sufficiently concrete to satisfy injury-in-fact requirement). 

6. “The FDCPA does create an informational right which did not exist prior to 

its enactment, and that right is tied to the harm which a consumer may suffer if not 

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provided with that information. Consequently, the deprivation of that information is, in 

most cases, sufficient to confer Article III standing. That was the law before Spokeo, and 

that law was not based on an erroneous understanding of Article III like the one corrected 

by Spokeo, but by application of well-settled principles of standing jurisprudence 

which Spokeo did not change (and, in fact, upon which Spokeo relied).” Hagy v. Demers 

& Adams, LLC, No. 2:11-CV-530, 2017 WL 1134408, at *4 (S.D. Ohio Mar. 27, 2017).

7. “[N]umerous other courts, including courts in this circuit and from around 

the country, have rejected Spokeo-based standing challenges in the context of FDCPA 

violations.” Neeley v. Portfolio Recovery Assocs., LLC, No. 115CV01283RLYMJD, 

2017 WL 3311045, at *2 (S.D. Ind. Aug. 2, 2017) (citing Pogorzelski v. Patenaude & 

Felix APC, No. 16-C-1330, 2017 WL 2539782, at *4, 2017 U.S. Dist. LEXIS 89678, at 

*11 (E.D. Wis. June 12, 2017)) (collecting cases).

8. “[E]ven though actual monetary harm is a sufficient condition to show 

concrete harm, it is not a necessary condition.” Lane, 2016 WL 3671467 at *4 (emphasis 

in original). 

THE FAIR DEBT COLLECTION PRACTICES ACT

9. Congress enacted the FDCPA in order to eliminate “abusive debt collection 

practices by debt collectors [and] to insure that those debt collectors who refrain from 

using abusive debt collection practices are not competitively disadvantaged.” Clark v. 

Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1179-80 (9th Cir. 2006) (citing 

15 U.S.C. § 1692(e)). 

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10. To protect consumers and ensure compliance by debt collectors, “the 

FDCPA is a strict liability statute.” McCollough v. Johnson, Rodenburg & Lauinger,

LLC, 637 F.3d 939, 948 (9th Cir. 2011).

11. Strict liability enhances “the remedial nature of the statute,” and courts are 

“to interpret it liberally” to protect consumers. Clark, 460 F.3d at 1176.

12. In addition, by making available to prevailing consumers both statutory 

damages and attorneys’ fees, Congress “clearly intended that private enforcement actions 

would be the primary enforcement tool of the Act.” Baker v. G.C. Servs. Corp., 677 F.2d 

775, 780-81 (9th Cir. 1982); see also Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d 

1109, 1118 (9th Cir. 2014). 

13. Violations of the FDCPA are assessed under the least sophisticated 

consumer standard which is “‘designed to protect consumers of below average 

sophistication or intelligence,’ or those who are ‘uninformed or naïve,’ particularly when 

those individuals are targeted by debt collectors.” Gonzales v. Arrow Fin. Servs., LLC, 

660 F.3d 1055, 1061 (9th Cir. 2011) (quoting Duffy v. Landberg, 215 F.3d 871, 874-75 

(8th Cir. 2000)). 

14. “An FDCPA Plaintiff need not even have actually been misled or deceived 

by the debt collector’s representation; instead, liability depends on whether the 

hypothetical ‘least sophisticated debtor’ likely would be misled.” Tourgeman, 755 F.3d 

at 1117-18 (emphasis in original). 

15. “[B]ecause the FDCPA is a remedial statute aimed at curbing what 

Congress considered to be an industry-wide pattern of and propensity towards abusing 

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debtors, it is logical for debt collectors—repeat players likely to be acquainted with the 

legal standards governing their industry—to bear the brunt of the risk.” Clark, 460 F.3d at 

1171-72; see also FTC v. Colgate–Palmolive Co., 380 U.S. 374, 393 (1965) (“[I]t does 

not seem unfair to require that one who deliberately goes perilously close to an area of 

proscribed conduct shall take the risk that he may cross the line.”) (internal quotations 

omitted).

PARTIES

16. Plaintiff is a natural person who at all relevant times resided in the State of 

County of Maricopa, and City of Chandler Heights. 

17. Plaintiff is a “consumer” as defined by 15 U.S.C. § 1692a(3). 

18. MCM is an entity who at all relevant times was engaged, by use of the 

mails and telephone, in the business of attempting to collect a “debt” from Plaintiff, as 

defined by 15 U.S.C. § 1692a(5).

19. MCM is a “debt collector” as defined by 15 U.S.C. § 1692a(6).

20. Midland Funding is an entity who acquires debt in default merely for 

collection purposes, and who at all relevant times was engaged in the business of directly 

or indirectly attempting to collect a “debt” from Plaintiff, as defined by 15 U.S.C. § 

1692a(5).

21. Midland Funding is a “debt collector” as defined by 15 U.S.C. § 1692a(6). 

FACTUAL ALLEGATIONS

22. Plaintiff is a natural person allegedly obligated to pay a debt.

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23. Plaintiff’s alleged obligation arises from a transaction in which the money, 

property, insurance, or services that are the subject of the transaction were incurred 

primarily for personal, family, or household purposes—namely, a Wells Fargo account 

(the “Debt”).

24. MCM uses instrumentalities of interstate commerce or the mails in a 

business the principal purpose of which is the collection of debt.

25. MCM regularly collects or attempts to collect, directly or indirectly, debts 

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

26. Midland Funding directly or indirectly uses instrumentalities of interstate 

commerce or the mails in a business the principal purpose of which is the collection of 

debt.

27. Midland Funding acquired Plaintiff’s Debt after it was in default.

28. On February 20, 2014, Midland Funding filed a lawsuit in the San Tan 

Justice Court in the Court of Maricopa, and the State of Arizona. 

29. Plaintiff and Midland Funding made an agreement to a stipulated judgment 

and a conditional agreement not to execute the judgment.

30. A true and correct copy of the agreement to stipulated judgment and 

conditional agreement not to execute is attached as Exhibit A. 

31. Plaintiff and Midland Funding agreed that:

The account balance is to be paid as follows: monthly payments of $150.00 

will be due beginning September 25, 2014 and continuing on the 25th day of 

each consecutive month thereafter, until the settlement amount of $5000.00, 

is paid in full.

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Exhibit A. 

32. On October 5, 2014, the judgment was entered. 

33. A true and correct copy of the judgment is attached as Exhibit B. 

34. The judgment stated:

IT IS HEREBY ORDERED granting judgment in favor of the Plaintiff and 

against Defendant for the principal amount of $9252.90 plus courts costs in 

the amount of $191.00 for a total judgment amount of $9,443.90. 

Defendant shall pay this judgment pursuant to the terms contained in the 

parties’ Agreement to Stipulated and Conditional Agreement Not to 

Execute. 

Exhibit B.

35. In accordance with the agreement to stipulated judgment and conditional 

agreement not to execute, Plaintiff made timely payments to Midland Funding starting in 

September 2014.

36. On January 16, 2017, MCM, itself and on behalf of Midland Funding, sent 

Plaintiff a letter in connection with the collection of the Debt.

37. A true and correct copy of MCM’s January 16, 2017 letter is attached to 

this complaint as Exhibit C.

38. At the time MCM sent its January 16, 2017 letter, Plaintiff had made 26 

payments of $150.00 to Midland Funding, totaling $3,900.00.

39. At the time MCM sent its January 16, 2017 letter, Plaintiff had $1,100.00 

remaining on the agreed payment amount for the Debt.

40. MCM’s January 16, 2017 letter states that Plaintiff had only paid $3,123.84 

on the Debt.

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41. MCM’s January 16, 2017 letter states that the current balance of the Debt is 

$8,457.92.

42. Plaintiff continued making timely payments until July 2017 in accordance 

with the agreement to stipulated judgment and conditional agreement not to execute.

43. As of July 2017, Plaintiff made 35 payments of $150.00 to Midland 

Funding, totaling $5,250.00.

44. As of July 2017, Plaintiff had overpaid Midland Funding by $250.00 than 

called for in the agreement to stipulated judgment and conditional agreement not to 

execute.

45. On September 13, 2017, Plaintiff contacted Defendants and spoke with a 

representative of MCM or Midland Funding.

46. Defendants’ representative assured Plaintiff that she would receive a refund 

for her overpaid amount of $250.00.

47. During the September 13, 2017 conversation, Defendants’ representative 

told Plaintiff that the refund may take ten to fourteen days.

48. After fourteen days had passed, Plaintiff did not receive her refund of 

$250.00 from MCM or Midland Funding. 

49. Plaintiff subsequently called MCM or Midland Funding four additional 

times in effort to discuss and receive her refund of $250.00.

50. During these four additional calls, MCM or Midland Funding did not 

answer.

51. During these four additional calls, Plaintiff left a voicemail message.

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52. Neither MCM nor Midland Funding have returned Plaintiff’s calls. 

53. To date, Plaintiff has not received her refund of $250.00 from MCM or 

Midland Funding.

COUNT I

VIOLATION OF 15 U.S.C. § 1692e(2)(A)

MCM

54. Plaintiff repeats and re-alleges each factual allegation above.

55. The FDCPA creates a broad, flexible prohibition against the use of 

misleading, deceptive, or false representations in the collection of debts. See 15 U.S.C. §

1692e. See Hamilton v. United Healthcare of Louisiana, Inc., 310 F.3d 385, 392 (5th 

Cir. 2002) (citing legislative history reference to the FDCPA’s general prohibitions which 

“will enable the courts, where appropriate, to proscribe other improper conduct which is 

not specifically addressed”).

56. Included as an example of conduct that violates section 1692e is the false 

representation of the character, amount, or legal status of a debt. 15 U.S.C. § 

1692e(2)(A).

57. Thus, the plain-language of the FDCPA makes it clear that under the strict 

liability framework, any false representation as to the amount of the debt is sufficient to 

show a violation of the FDCPA. See Randolph v. IMBS, Inc., 368 F.3d 726, 730 (7th Cir. 

2004) (“§ 1692e(2)(A) creates a strict-liability rule. Debt collectors may not make false 

claims, period.”); see also Turner v. J.V.D.B. & Associates, Inc., 330 F.3d 991, 995 (7th 

Cir. 2003) (“under § 1692e ignorance is no excuse”).

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58. MCM violated 15 U.S.C. § 1692e(2)(A) by falsely representing the 

character, amount, or legal status of Plaintiff’s alleged debt, including in its January 16, 

2017 letter and by collecting and retaining more payments from Plaintiff than agreed.

WHEREFORE, Plaintiff prays for relief and judgment, as follows: 

a) Adjudging that MCM violated 15 U.S.C. § 1692e(2)(A);

b) Awarding Plaintiff statutory damages, pursuant to 15 U.S.C. § 

1692k(a)(2)(A), in the amount of $1,000.00;

c) Awarding Plaintiff actual damages, pursuant to 15 U.S.C. § 1692k(a)(1);

d) Awarding Plaintiff reasonable attorneys’ fees and costs incurred in this 

action pursuant to 15 U.S.C. § 1692k(a)(3); 

e) Awarding Plaintiff pre-judgment and post-judgment interest as permissible 

by law; and

f) Awarding such other and further relief as the Court may deem proper.

COUNT II

VIOLATION OF 15 U.S.C. § 1692e(2)(B)

MCM

59. Plaintiff repeats and re-alleges each factual allegation above.

60. Within this broad prohibition, the FDCPA specifically forbids the “false 

representation of—any services rendered or compensation which may be lawfully 

received by any debt collector for the collection of a debt.” 15 U.S.C. § 1692e(2)(B); see 

West v. Costen, 558 F. Supp. 564 (W.D. Va. 1983) (holding that defendants violated § 

1692e(2)(B) because “there was no legal basis for imposing the service charges. 

Therefore the service charges were compensation which cannot be ‘legally received’”).

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61. MCM violated 15 U.S.C. § 1692e(2)(B) by falsely representing 

compensation which may be lawfully received by Defendant for collection of Plaintiff’s 

Debt, including by collecting and failing to return more money than agreed in a binding 

agreement before a court of competent jurisdiction.

WHEREFORE, Plaintiff prays for relief and judgment, as follows: 

a) Adjudging that MCM violated 15 U.S.C. § 1692e(2)(B);

b) Awarding Plaintiff statutory damages, pursuant to 15 U.S.C. § 

1692k(a)(2)(A), in the amount of $1,000.00;

c) Awarding Plaintiff actual damages, pursuant to 15 U.S.C. § 1692k(a)(1);

d) Awarding Plaintiff reasonable attorneys’ fees and costs incurred in this 

action pursuant to 15 U.S.C. § 1692k(a)(3); 

e) Awarding Plaintiff pre-judgment and post-judgment interest as permissible 

by law; and

f) Awarding such other and further relief as the Court may deem proper.

COUNT III

VIOLATION OF 15 U.S.C. § 1692e(10)

MCM

62. Plaintiff repeats and re-alleges each factual allegation above.

63. Congress, recognizing that it would be impossible to foresee every type of 

deceptive collection misbehavior, expressly included in the FDCPA a catchall provision, 

prohibiting “[t]he use of any false representation or deceptive means to collect or attempt 

to collect any debt or to obtain information concerning a consumer.” 15 U.S.C. § 

1692e(10). 

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64. MCM violated 15 U.S.C. § 1692e(10) by using false, deceptive, or 

misleading representations or means in connection with the collection of any debt.

WHEREFORE, Plaintiff prays for relief and judgment, as follows: 

a) Adjudging that MCM violated 15 U.S.C. § 1692e(10);

b) Awarding Plaintiff statutory damages, pursuant to 15 U.S.C. § 

1692k(a)(2)(A), in the amount of $1,000.00;

c) Awarding Plaintiff actual damages, pursuant to 15 U.S.C. § 1692k(a)(1);

d) Awarding Plaintiff reasonable attorneys’ fees and costs incurred in this 

action pursuant to 15 U.S.C. § 1692k(a)(3); 

e) Awarding Plaintiff pre-judgment and post-judgment interest as permissible 

by law; and

f) Awarding such other and further relief as the Court may deem proper.

COUNT IV

VIOLATION OF 15 U.S.C. § 1692f

MCM

65. Plaintiff repeats and re-alleges each factual allegation above.

66. The FDCPA also prohibits the use of unfair or unconscionable means to 

collect debts. See 15 U.S.C. § 1692f.

67. In addition to the non-exhaustive list of conduct that violates the FDCPA, § 

1692f “allows a court to sanction improper conduct the FDCPA fails to address 

specifically.” Turner v. Professional Recovery Services, Inc., 956 F. Supp. 2d 573, 580 

(D.N.J. 2013) (quoting Adams v. Law Offices of Stuckert & Yates, 926 F. Supp. 521, 528 

(E.D. Pa. 1996)).

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68. As an example of unfair and unconscionable conduct, the FDCPA also 

specifically prohibits the collection of any amount from a consumer, unless such 

collection is expressly authorized by agreement or law. 15 U.S.C. § 1692f(1).

69. MCM violated 15 U.S.C. §§ 1692f and 1692f(1) by using unfair or 

unconscionable means against Plaintiff in connection with an attempt to collect an 

alleged debt, including taking more money from Plaintiff than agreed under the stipulated 

judgment and by failing to promptly return the overpayment, thus depriving Plaintiff of 

the rightful use of those funds for months.

WHEREFORE, Plaintiff prays for relief and judgment, as follows: 

a) Adjudging that MCM violated 15 U.S.C. § 1692f;

b) Awarding Plaintiff statutory damages, pursuant to 15 U.S.C. § 

1692k(a)(2)(A), in the amount of $1,000.00;

c) Awarding Plaintiff actual damages, pursuant to 15 U.S.C. § 1692k(a)(1);

d) Awarding Plaintiff reasonable attorneys’ fees and costs incurred in this 

action pursuant to 15 U.S.C. § 1692k(a)(3); 

e) Awarding Plaintiff pre-judgment and post-judgment interest as permissible 

by law; and

f) Awarding such other and further relief as the Court may deem proper.

COUNT V

VIOLATION OF 15 U.S.C. § 1692e(2)(A)

Midland Funding

70. Plaintiff repeats and re-alleges each factual allegation above.

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71. MCM violated 15 U.S.C. § 1692e(2)(A) by falsely representing the 

character, amount, or legal status of Plaintiff’s alleged debt.

72. Midland Funding, by virtue of its status as a “debt collector” under the 

FDCPA, is liable for the conduct of MCM — the debt collector it retained to collect on 

its behalf.

WHEREFORE, Plaintiff prays for relief and judgment, as follows: 

a) Adjudging that Midland Funding violated 15 U.S.C. § 1692e(2)(A);

b) Awarding Plaintiff statutory damages, pursuant to 15 U.S.C. § 

1692k(a)(2)(A), in the amount of $1,000.00;

c) Awarding Plaintiff actual damages, pursuant to 15 U.S.C. § 1692k(a)(1);

d) Awarding Plaintiff reasonable attorneys’ fees and costs incurred in this 

action pursuant to 15 U.S.C. § 1692k(a)(3); 

e) Awarding Plaintiff pre-judgment and post-judgment interest as permissible 

by law; and

f) Awarding such other and further relief as the Court may deem proper.

COUNT VI

VIOLATION OF 15 U.S.C. § 1692e(2)(B)

Midland Funding

73. Plaintiff repeats and re-alleges each factual allegation above.

74. MCM violated 15 U.S.C. § 1692e(2)(B) by falsely representing 

compensation which may be lawfully received by Defendant for collection of Plaintiff’s 

alleged debt.

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75. Midland Funding, by virtue of its status as a “debt collector” under the 

FDCPA, is liable for the conduct of MCM — the debt collector it retained to collect on 

its behalf.

WHEREFORE, Plaintiff prays for relief and judgment, as follows: 

a) Adjudging that Midland Funding violated 15 U.S.C. § 1692e(2)(B);

b) Awarding Plaintiff statutory damages, pursuant to 15 U.S.C. § 

1692k(a)(2)(A), in the amount of $1,000.00;

c) Awarding Plaintiff actual damages, pursuant to 15 U.S.C. § 1692k(a)(1);

d) Awarding Plaintiff reasonable attorneys’ fees and costs incurred in this 

action pursuant to 15 U.S.C. § 1692k(a)(3); 

e) Awarding Plaintiff pre-judgment and post-judgment interest as permissible 

by law; and

f) Awarding such other and further relief as the Court may deem proper.

COUNT VII

VIOLATION OF 15 U.S.C. § 1692e(10)

Midland Funding

76. Plaintiff repeats and re-alleges each factual allegation above.

77. MCM violated 15 U.S.C. § 1692e(10) by using false, deceptive, or 

misleading representations or means in connection with the collection of any debt.

78. Midland Funding, by virtue of its status as a “debt collector” under the 

FDCPA, is liable for the conduct of MCM — the debt collector it retained to collect on 

its behalf.

WHEREFORE, Plaintiff prays for relief and judgment, as follows: 

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a) Adjudging that Midland Funding violated 15 U.S.C. § 1692e(10);

b) Awarding Plaintiff statutory damages, pursuant to 15 U.S.C. § 

1692k(a)(2)(A), in the amount of $1,000.00;

c) Awarding Plaintiff actual damages, pursuant to 15 U.S.C. § 1692k(a)(1);

d) Awarding Plaintiff reasonable attorneys’ fees and costs incurred in this 

action pursuant to 15 U.S.C. § 1692k(a)(3); 

e) Awarding Plaintiff pre-judgment and post-judgment interest as permissible 

by law; and

f) Awarding such other and further relief as the Court may deem proper.

COUNT VIII

VIOLATION OF 15 U.S.C. § 1692f

Midland Funding

79. Plaintiff repeats and re-alleges each factual allegation contained above.

80. MCM violated 15 U.S.C. § 1692f by using unfair or unconscionable means 

against Plaintiff in connection with an attempt to collect an alleged debt.

81. Midland Funding, by virtue of its status as a “debt collector” under the 

FDCPA, is liable for the conduct of MCM — the debt collector it retained to collect on 

its behalf.

WHEREFORE, Plaintiff prays for relief and judgment, as follows: 

a) Adjudging that Midland Funding violated 15 U.S.C. § 1692f;

b) Awarding Plaintiff statutory damages, pursuant to 15 U.S.C. § 

1692k(a)(2)(A), in the amount of $1,000.00;

c) Awarding Plaintiff actual damages, pursuant to 15 U.S.C. § 1692k(a)(1);

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d) Awarding Plaintiff reasonable attorneys’ fees and costs incurred in this 

action pursuant to 15 U.S.C. § 1692k(a)(3); 

e) Awarding Plaintiff pre-judgment and post-judgment interest as permissible 

by law; and

f) Awarding such other and further relief as the Court may deem proper.

TRIAL BY JURY

82. Plaintiff is entitled to and hereby demands a trial by jury.

Dated: January 16, 2018

Respectfully submitted,

s/ Russell S. Thompson IV

Russell S. Thompson IV (029098)

Thompson Consumer Law Group, PLLC

5235 E. Southern Ave., D106-618

Mesa, AZ 85206

Telephone: (602) 388-8898

Facsimile: (866) 317-2674

rthompson@consumerlawinfo.com

s/ Joseph Panvini

Joseph Panvini (028359)

Thompson Consumer Law Group, PLLC

5235 E. Southern Ave., D106-618

Mesa, AZ 85206 

Telephone: (602) 388-8875

Facsimile: (866) 317-2674

jpanvini@consumerlawinfo.com

Attorneys for Plaintiff

Case 2:18-cv-00149-GMS Document 1 Filed 01/16/18 Page 17 of 17