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

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

Matthew Jones, #029679

LARSON & SIMPSON, PLC

90 S. Kyrene Rd., Ste. 5

Chandler, AZ 85226-4687

Office: (480) 426-0920

Fax: (800) 794-7044

Matt@LarsonandSimpson.co

Attorney for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

 

)

Robert W. Jones and Belinda I. )

Jones; )

)

)

Plaintiffs, )

)

v. )

)

Wilmington Savings Fund Society,)

FSB; Les Zieve d/b/a Law )

Office of Les Zieve; and )

Eric L. Cook; )

)

)

Defendants. )

)

 )

No. 

COMPLAINT

(Jury Trial Demanded)

I. Preliminary Statement

1. Plaintiffs bring this action for damages based upon Defendants’ violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.

Case 2:15-cv-02219-SPL Document 1 Filed 11/04/15 Page 1 of 8
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

§§ 1692 et seq. In the course of attempting to collect a debt allegedly

owed by Plaintiffs, Defendants engaged in deceptive, unfair and abusive debt collection practices in violation of the FDCPA. Plaintiffs seek

to recover actual damages and statutory damages, as well as reasonable

attorney’s fees and costs. 

II. JURISDICTION

2. Jurisdiction of this Court, over this action and the parties herein, arises

under 15 U.S.C. § 1692k(d) (FDCPA), and 28 U.S.C. § 1331. Venue

lies in the Phoenix Division of the District of Arizona as Plaintiffs’

claims arose from acts of the Defendants perpetrated therein.

III. PARTIES

3. Plaintiffs are residents of Maricopa County, Arizona.

4. Plaintiffs are natural persons who are allegedly obligated to pay a debt

which was incurred for personal, family, or household purposes.

5. Plaintiffs are “consumers” as that term is defined by FDCPA §

1692a(3).

6. Defendant Wilmington Savings Fund Society, FSB (“Wilmington”) is a

Delaware Corporation.

7. Wilmington collects or attempts to collect debts which it claims to have

purchased or to have been assigned after default.

8. Wilmington uses courts in Arizona to collect consumer debts.

9. Wilmington is a “debt collector” as that term is defined by FDCPA §

1692a(6).

10. Defendant Les Zieve d/b/a Law Office of Les Zieve (“Les Zieve”)

operates a law firm in Arizona under the trade name Law Office of Les

- 2 -

Case 2:15-cv-02219-SPL Document 1 Filed 11/04/15 Page 2 of 8
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

Zieve and employs Arizona attorneys.

11. Les Zieve is a consumer debt collection law firm that regularly collects

or attempts to collect debts owed or asserted to be owed or due another

from residents within the State of Arizona.

12. Les Zieve is a “debt collector” as that term is defined by FDCPA §

1692a(6).

13. Defendant Eric L. Cook (“Cook”) is a licensed Arizona attorney employed by Les Zieve.

14. Cook regularly collects or attempts to collect debts owed or asserted to

be owed or due another from residents within the State of Arizona.

15. Eric Cook is a “debt collector” as the term is defined by FDCPA §

1692(a)(6).

16. At all times relevant herein, Les Zieve employed individual attorneys

to act on its behalf, and Les Zieve is liable for actions of these attorneys, including Cook.

17. Les Zieve’s collection actions taken against Plaintiffs were taken on

behalf of, and as agent for, Wilmington.

18. Wilmington is liable for the actions of its agent, Les Zieve.

IV. Factual Allegations

19. On behalf of Wilmington, Les Zieve and Cook filed a complaint in

Pinal County Superior Court cause number CV2015-01476 on August

7, 2015 (hereinafter “Suit”). 

20. Defendants alleged in the Suit that Plaintiffs executed and delivered a

Deed of Trust securing Plaintiffs’ obligations under a promissory note

to M&I Marshall and Ilsley Bank.

- 3 -

Case 2:15-cv-02219-SPL Document 1 Filed 11/04/15 Page 3 of 8
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

21. Defendants alleged in the Suit that BMO Harris Bank National Association, successor-in-interest to M&I Marshall & Ilsely Bank, assigned

the Deed of Trust to Wilmington.

22. Upon information and belief, BMO Harris Bank National Association

assigned the Deed of Trust after default.

23. Defendants alleged in the Suit that Wilmington appointed Carrie

Thompson Jones - an attorney employed by Les Zieve - as Successor

Trustee.

24. Defendants alleged in the Suit that Plaintiffs were delinquent under the

terms of a promissory note secured by the Deed of Trust.

25. Defendants alleged in the Suit that a Trustee Sale was held on May 8,

2015.

26. Defendants alleged in the Suit that Wilmington was the successful

bidder at the Trustee Sale held on May 8, 2015. 

27. Upon information and belief, Les Zieve was retained to bring an action

against Plaintiffs to reclaim the deficiency between the amount secured

by the Deed of Trust and the amount paid at the Trustee Sale.

28. Upon information and belief, Les Zieve assigned the case to Cook, an

attorney employed by Les Zieve. 

29. Cook filed the Suit more than ninety (90) days after the date of the

Trustee’s sale held on May 8, 2015.

30. Arizona Revised Statute § 33-814 (“A.R.S.”) imposes a ninety (90) day

statute of limitation on actions to recover the deficient balance between

what is owed under a Deed of Trust and what was paid at the Trustee’s

sale.

- 4 -

Case 2:15-cv-02219-SPL Document 1 Filed 11/04/15 Page 4 of 8
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

31. If an action for deficiency is not brought within ninety (90) days,

A.R.S. § 33-814(D) provides that the proceeds received at the Trustee

Sale, regardless of the amount, are deemed to be in full satisfaction of

the obligation and “no right of recovery shall exist.”

32. Defendants served Plaintiffs with the summons and Complaint on or

about August 13, 2015.

33. Defendants attached to the Complaint the Trustee Deed Upon Sale

indicating the Trustee’s Sale occurred on May 8, 2015.

34. Defendants attached to the Complaint a Deed of Trust identifying

Maricopa County as the location where the Deed of Trust was executed

along with the promissory note.

35. At the time Defendants filed the Suit, they misrepresented to Plaintiffs

that the alleged debt was not stale, and that the Suit was filed within the

applicable statute of limitations. 

36. However, at the time Defendants filed the Suit, the debt in fact was

stale and past the statute of limitations.

37. At the time Defendants filed the Suit, there was no right to recover any

alleged deficiency balance.

38. At the time Defendants filed the Suit against Plaintiffs, they knew that

the debt was stale and past the statute of limitations.

39. At the time Defendants filed the Suit, they knew venue was not proper

in Pinal County, Arizona.

40. At the time Defendants filed the Suit, they misrepresented to Plaintiffs

and the Pinal County Superior Court that venue was proper in Pinal

County, Arizona.

- 5 -

Case 2:15-cv-02219-SPL Document 1 Filed 11/04/15 Page 5 of 8
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

41. Upon being served, Plaintiffs sought out and hired counsel to defend

them in the lawsuit. 

42. During the course of defending the Suit, Plaintiffs advised Defendants

that the time for collection of any deficiency is beyond the statute of

limitations.

43. During the course of defending the Suit, Plaintiffs advised Defendants

that the Suit was brought in the wrong venue.

44. Despite Defendants’ knowledge that the action to collect a deficiency is

beyond the statute of limitations, Defendants have continued to prosecute the collection suit against Plaintiffs.

45. Despite Defendant’s knowledge that the action to collect on any deficiency was filed in the improper venue, Defendants have continued to

prosecute the collection suit against Plaintiffs in the incorrect venue.

46. Despite Defendant Eric Cook agreeing to dismiss the state court action,

as of the time of filing this Complaint, upon information and belief,

Defendants have yet to file a motion to dismiss the suit.

47. As a result of Defendants’ actions as outlined above, Plaintiffs have

suffered actual damages including, but not limited to, legal fees, court

costs, anxiety, worry, embarrassment, sleeplessness, stress, invasion of

privacy, loss of opportunity, damage to credit and reputation, and other

extreme emotional distress.

48. Defendants’ actions as outlined above were intentional, willful, and in

gross or reckless disregard of Plaintiffs’ rights, and part of Defendants’

persistent and routine practice of debt collection. 

49. In the alternative, Defendants’ actions were negligent.

- 6 -

Case 2:15-cv-02219-SPL Document 1 Filed 11/04/15 Page 6 of 8
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

V. Causes of Action

Fair Debt Collection Practices Act

50. Plaintiffs repeat, reallege, and incorporate by reference the foregoing

paragraphs.

51. Defendants’ violations of the FDCPA include, but are not necessarily

limited to, 15 U.S.C. §§ 1692e, 1692e(2)(A), 1692e(5), 1692e(8),

1692e(10), 1692f, 1692f(1), and 1692i.

52. As a direct result and proximate cause of Defendants’ actions in violation of the FDCPA, Plaintiffs have suffered actual damages.

VI. DEMAND FOR JURY TRIAL

Plaintiffs hereby demand a jury trial on all issues so triable.

VII. PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request that judgment be entered against

Defendants for:

a) Actual damages under the FDCPA;

b) Statutory damages under the FDCPA;

c) Costs and reasonable attorney’s fees; and

d) Such other relief as may be just and proper.

/ / /

/ / /

- 7 -

Case 2:15-cv-02219-SPL Document 1 Filed 11/04/15 Page 7 of 8
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

DATED .

 

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

Matthew Jones, #029679

LARSON & SIMPSON, PLC

90 S. Kyrene Rd., Ste. 5

Chandler, AZ 85226-4687

Office: (480) 426-0920

Fax: (800) 794-7044

Matt@LarsonandSimpson.co

Attorney for Plaintiffs

- 8 -

Case 2:15-cv-02219-SPL Document 1 Filed 11/04/15 Page 8 of 8