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Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 1 of 22
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`
`Jared M. Scarbrough
`O’CONNOR & DYET, P.C.
`7955 South Priest Drive
`Tempe, AZ 85284
`jared.scarbrough@occlaw.com
`Tel: (602) 241-7000
`Fax: (602) 241-7039
`Attorneys for Plaintiffs, Margaret R. Holm
`and Justin D. Holm
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF ARIZONA
`
`Margaret R. Holm and Justin D. Holm,
` Case No.:
`and wife and husband,
`
`
`
`
`
`AT&T Corp., a New York Corporation;
`and DirecTV, LLC, a California
`Limited-liability Company,
`
`
`
`
`Plaintiffs,
`
`vs.
`
`Defendants.
`
`
`
`
`COMPLAINT (Violation of FCRA;
`FDCPA; AzFDCPA; Negligence;
`Emotional Distress; Permanent
`Injunction Against Harassment; Loss
`of Consortium; Jury Demand)
`
`
`
`
`
`
`
`
`
`Plaintiffs Margaret R. Holm and Justin D. Holm (collectively the “Holms”), by
`
`and through their attorneys, O’Connor & Dyet, P.C., bring this action against AT&T,
`Corp. and DirecTV, LLC (collectively “Defendants”) in accordance with the Fair
`Credit Reporting Act (“FCRA”)1, the Fair Debt Collection Practices Act (“FDCPA”)2,
`and Arizona’s Fair Debt Collection Practices Act (“AzFDCPA”)3. The Holms ask
`
`
`
`1 15 USC § 1681, et seq.
`2 15 USC § 1692, et seq.
`3 Ariz. Rev. Stat. § 32-1001, et seq.
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`Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 2 of 22
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`the Court for a finding that Defendants’ actions violated federal and state law, for
`damages, and for other legal and equitable relief alleged as follows.
`JURISDICTION AND VENUE
`This Court has jurisdiction pursuant to 28 U.S.C. §1331 (federal
`1.
`question), 28 U.S.C. §1337 (commerce and antitrust regulations), 28 U.S.C. §1367
`(supplemental jurisdiction regarding state-law claims), and 15 U.S.C. §1681 of
`FCRA.
`Venue is proper in this District because: (1) the acts and transactions
`2.
`occurred here; and (2) Defendants transact business here.
`PARTIES
`Plaintiffs Margaret R. Holm and Justin D. Holm are a wife and
`3.
`husband who are former residents of Arizona. During the relevant time period the
`Holms had been residents of Arizona, but were in the process of moving to Oregon.
`4.
`Plaintiff Margaret R. Holm has the following aliases: (1) Margaret
`Rachel Jungwirth (her full maiden name); (2) Margaret R. Jungwirth; (3) M. Rachel
`Jungwirth; (4) Rachel Jungwirth; (5) Margaret Rachel Holm (her full married name);
`(6) Margaret R. Holm; (7) M. Rachel Holm; (8) Rachel Holm.
`5. Mrs. Holm has never gone by, or used the name “Maggie.”
`6.
`Plaintiff Justin D. Holm has the following aliases: (1) Justin Dean Holm
`(his full legal name); (2) Justin D. Holm; (3) J.D. Holm; and (4) Justin Holm.
`7. Mrs. Holm is a “consumer” as defined by FCRA.4
`8. Mr. Holm is a “consumer” as defined by FCRA.5
`9. Mrs. Holm is a “consumer” as defined by FDCPA.6
`
`
`
`4 See 15 U.S.C. § 1681a(c).
`5 Id.
`6 See 15 U.S.C. § 1692a(3).
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`Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 3 of 22
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`10. Mr. Holm is a “consumer” as defined by FDCPA.7
`11. Mrs. Holm is a “person” as defined by AzFDCPA.8
`12. Mr. Holm is a “person” as defined by AzFDCPA.9
`13. AT&T Corp. is a New York corporation (“AT&T”), with its principle
`place of business in New York.
`14. AT&T is authorized to conduct business in Arizona.
`15. AT&T maintains a registered agent in Arizona.
`16. AT&T conducts business in Arizona.
`17. AT&T is a “person” as defined by FCRA.10
`18. AT&T is a “creditor” as defined by FCRA.11
`19. AT&T uses the instruments of interstate commerce for its business,
`which includes, in part, the collection of debts.
`20. AT&T is a “debt collector” as defined by FDCPA.12
`21. AT&T is a “collection agency” as defined by AzFDCPA.13
`22. DirecTV, LLC is a California corporation (“DirecTV”), with its principle
`place of business in California.
`23. DirecTV is authorized to conduct business in Arizona.
`24. DirecTV maintains a registered agent in Arizona.
`25. DirecTV conducts business in Arizona.
`26. DirecTV is a “person” as defined by FCRA.14
`
`
`
`7 Id.
`8 ARIZ. REV. STAT. § 32-1001(5).
`9 Id.
`10 15 U.S.C. § 1681a(b).
`11 15 U.S.C. § 1681m(e)(4).
`12 See 15 U.S.C. § 1692a(6).
`13 ARIZ. REV. STAT. § 32-1001(2).
`14 15 U.S.C. § 1681a(b).
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`Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 4 of 22
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`27. DirecTV is a “creditor” as defined by FCRA.15
`28. DirecTV uses the instruments of interstate commerce for its business,
`which includes, in part, the collection of debts.
`29. DirecTV is a “debt collector” as defined by FDCPA.16
`30. DirecTV is a “collection agency” as defined by AzFDCPA.17
`FACTUAL ALLEGATIONS
`31. The Holms recently moved to Oregon from Arizona.
`32. Their Arizona home closed escrow on May 21, 2019.
`33. The fraudulent DirecTV account, Account No. 295225870 that is the
`basis of this lawsuit, was opened using Mrs. Holm’s name, address, and Social
`Security Number on May 22, 2019, the day after the Holms left Arizona for Oregon.
`34. On June 6, 2019, the Holms received a Welcome Packet for
`AT&T/DirecTV Service forwarded from their old Arizona address.
`35. The Holms immediately knew something was wrong and ordered
`credit reports from all three credit bureaus.
`36. While reviewing these reports, Mrs. Holm discovered a “hard inquiry”
`on her Equifax Credit Report from AT&T.
`37. Upon information and belief, this type of “hard” inquiry can only be
`submitted using the individual’s name and Social Security Number.
`38. The Holms have never had DirecTV service and did not ask AT&T to
`perform this credit inquiry.
`39. The Holms immediately contacted AT&T and discovered a criminal
`had opened a DirecTV account in Mrs. Holm’s name.
`
`
`
`15 15 U.S.C. § 1681m(e)(4).
`16 See 15 U.S.C. § 1692a(6).
`17 ARIZ. REV. STAT. § 32-1001(2).
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`Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 5 of 22
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`40. The criminal used the Holms’ Arizona address (4534 E. Rock Wren
`Rd. Phoenix, AZ 85044), and upon information and belief, Mrs. Holm’s Social
`Security Number to fraudulently set-up Account No. 295225870.
`41. On June 7, 2019, after speaking to several AT&T employees and
`being transferred between departments several times, Mrs. Holm was finally able
`to file a fraudulent credit inquiry with “Princess” from AT&T’s Global Fraud
`Management Department.
`42. Princess assured Mrs. Holm she would: (1) close out the fraudulent
`account and (2) submit a request to have the inquiry removed.
`43. These phone calls and promises establish an important pattern in
`AT&T’s behavior.
`44. AT&T representatives consistently adopt, and engage in, a pattern of
`“blame the victim.”
`45. Through this pattern AT&T and DirecTV personnel made knowingly
`false and/or misleading statements to the Holms.
`fraud
`46. During
`these phone calls AT&T customer-service and
`representatives falsely misrepresented: (1) identity theft had not occurred; (2) they
`would need to “verify” the account by contacting the presumed criminal who
`opened the account; and (3) written verification the account had been properly
`closed could not be provided for “internal policy” reasons.
`47. The Holms trusted Princess’s representations and promises that she
`would fully close the account and ensure the fraudulent inquiry was removed from
`Mrs. Holm’s credit file.
`In partial fulfillment of these promises, on June 14, 2019, the Holms
`48.
`received a letter from AT&T regarding the hard credit inquiry.
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`Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 6 of 22
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`49. The letter acknowledged the fraudulent nature of the hard inquiry and
`advised that it would be removed from Mrs. Holm’s credit file.
`50. The letter failed to acknowledge Princess’s second promise which
`was to close the fraudulent account and ensure the Holms that they would not be
`responsible for service, early termination, or equipment charges.
`51. After June 14, the Holms received two additional letters and engaged
`in further telephone communication with AT&T.
`52. The first letter was dated June 10, 2019 (the Holms did not receive
`this letter until June 18) Equipment-return Notice.
`53. On June 19, 2019, the day after receiving the notice, Mrs. Holm spoke
`with Nina from Global Fraud Management.
`54. Nina assured Mrs. Holm that the Equipment-return Notice was simply
`an auto-generated notice and could be ignored.
`55. Nina also represented to Mrs. Holm that the account had been closed
`and marked as fraudulent, so the Holms would not be responsible for any
`equipment costs/charges.
`56.
`Importantly, Nina refused to confirm these representations in writing
`indicating it was “not possible” to do so despite the fact the Holms had already
`received partial written confirmation regarding the account from AT&T.
`57. Again, the Holms trusted Nina’s false misrepresentations and
`promises.
`58. On July 3, 2019, the Holms received an Early-termination Statement
`from AT&T.
`59. The statement indicated that the Holms “owed” a total of $277.90 to
`AT&T/DirecTV.
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`Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 7 of 22
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`60. These charges include the fraudulent account’s first month’s service
`charges of $75.80—charges Princess indicated would be reversed.
`61. The remaining $202.10 was an early-termination fee – again, charges
`Princess indicated would not be assessed.
`62. Nina had also falsely “confirmed” to the Holms that these charges
`would not be assessed.
`63. After a second round of fruitless phone calls and attempts to engage
`AT&T representatives at a local AT&T/DirecTV store in in which AT&T personnel
`continued their now-established pattern of blanket denials and victim blaming, the
`Holms filed a Not My Account Incident Report through AT&T’s online fraud portal.
`64. This report included a detailed cover letter, selected pages from Mrs.
`Holm’s credit report, the police report the Holms filed with Phoenix Police
`Department, the fraudulent-inquiry confirmation letter they received from Global
`Fraud Management, the equipment return and early-termination notices received
`from AT&T, and the Holms’ identity-theft report filed with the Federal Trade
`Commission.
`65. When filed, AT&T’s online portal promised the Holms would be
`contacted by email.
`66. On July 12, 2019, after more than a week and having not received
`the promised email confirmation of the report’s receipt on the online portal, the
`Holms again contacted AT&T’s Global Fraud Management Department this time
`speaking with Frankie Bea.
`67. After asking Mrs. Holm to repeat all the details of her prior interactions,
`Ms. Bea placed Mrs. Holm on hold for approximately 15 minutes while consulting
`with her “supervisor.”
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`Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 8 of 22
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`68. When Ms. Bea returned to the line, she told Mrs. Holm the account
`had “now” been routed to the “correct department” so the charges could be
`removed—something Princess had promised to do more than a month earlier.
`69.
`Incredibly, when Mrs. Holm asked for written confirmation that the
`charges would be removed, Ms. Bea doubled-down on victim blaming by refusing
`to provide written confirmation.
`70. She also falsely told Mrs. Holm the criminal who had opened the
`account had not stolen Mrs. Holm’s identity because allegedly Mrs. Holm’s Social
`Security Number was not used to open the account.
`71. This statement was untrue.
`72. Upon information and belief, AT&T only submits hard credit inquiries
`if the individual’s Social Security Number has been used.
`73. When Mrs. Holm asked Ms. Bea to confirm what information was used
`to open the fraudulent account, Ms. Bea implicitly admitted her misrepresentation
`by confirming she could not actually see what information was used, so she did
`not actually know what information was used to open the account.
`74. When Mrs. Holm insisted on receiving written confirmation of the
`account’s closure, and asked to speak with Ms. Bea’s supervisor, Ms. Bea
`misrepresented to Mrs. Holm that her a supervisor was “unavailable” (she had just
`had Mrs. Holm on hold for 15 minutes while consulting with a “supervisor”) and
`instead inexplicably transferred Mrs. Holm to AT&T’s Orders department.
`75. The transfer to the Orders department would allegedly confirm what
`information was used to open the fraudulent account.
`76. The representative in the Orders department again put Mrs. Holm
`through the hassle of repeating her story, only to be told she could not be
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`Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 9 of 22
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`authenticated because she did not have the PIN number the criminal used to set
`up the fraudulent account.
`77. When Mrs. Holm asked to speak with a supervisor the Orders
`department representative hung up.
`78. On July 22, 2019, the Holms, through undersigned counsel, sent a
`letter to Defendants demanding written confirmation of the fraudulent account’s
`closure and waiver of all potential fees and costs associated with it.
`79. The Holms also demanded Defendants take all necessary steps to
`ensure Mrs. Holms’ credit would not be adversely affected by the fraudulent
`account.
`80. Upon information and belief, Defendants ignored this demand.
`81. On August 2, 2019, the Holms received a second “late notice”
`regarding the service fees and equipment charges associated with the fraudulent
`account.
`82. Upon information and belief, this last notice demonstrates Defendants
`have done nothing to properly close the fraudulent account or ensure Mrs. Holm’s
`credit file will not be adversely affected by it despite the Holms’ repeated,
`reasonable requests for action by Defendants.
`83.
`In the nearly four months since this ordeal began Defendants’
`representatives have consistently refused to fully and properly resolve this
`fraudulent account.
`84. These representatives have failed to listen and/or make notes to the
`
`file.
`
`85. They have consistently forced Mrs. Holm to repeat her grievances
`while being transferred between multiple departments none of whom seemingly
`have the skill, ability, or authority to properly handle a fraudulent-account claim.
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`Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 10 of 22
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`In addition Defendants’ representatives falsely misrepresented that
`86.
`Mrs. Holm’s identity had not been stolen.
`87. Defendants negligently and/or willfully refused to authenticate Mrs.
`Holm’s actual identity so the fraudulent account could be properly closed.
`88. Upon information and belief, Defendants negligently and/or willfully
`exposed Mrs. Holm to further credit risk by contacting, or attempting to contact, the
`criminal who opened the fraudulent account in order to “verify” the account’s
`authenticity.
`89. Defendants negligently and/or willfully refused to timely resolve the
`fraudulent service, early-termination, and equipment charges.
`90. Defendants negligently and/or willfully refused to provide written
`confirmation of the fraudulent account’s closure.
`91. Defendants negligently and/or willfully refused to provide written
`acknowledgment that the Holms will not be responsible for the charges associated
`with the fraudulent account.
`92. Defendants and/or its representatives have continued to contact the
`Holms despite being put on notice of their representation by undersigned counsel.
`COUNT I
`VIOLATION OF THE FCRA
`Prohibition on Transfer of Debt Caused by Identity Theft
`93. Plaintiffs incorporate and allege ¶¶ 1-92 as though fully set forth here.
`94. The Fair Credit Reporting Act insures the accuracy and fairness of
`credit reporting because “inaccurate credit reports directly impair the efficiency of
`the banking system, and unfair credit reporting methods undermine the public
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`Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 11 of 22
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`confidence which is essential to the continued functioning of the banking
`system.”18
`95. Under the act, no person shall sell, transfer, or place for collection a
`debt the person has been notified is the result of identity theft.19
`96. Defendants fraudulently allowed an account to be opened in Mrs.
`Holm’s name.
`97. Upon information and belief, the criminal who opened the account
`stole Mrs. Holm’s identity by using at least three pieces of sensitive, personal
`identifying information: (1) her name; (2) her address; and (3) her Social Security
`Number.
`98. Defendants, in violation of their own internal procedures to prevent
`fraud and identity theft, allowed the account to be opened in Mrs. Holm’s name.
`99. Defendants are trying to collect service fees and equipment charges
`against the fraudulent account, and have falsely identified Mrs. Holm as the
`“Maggie Holm” who opened the account.
`100. Defendants have received multiple disputes from Plaintiffs that the
`account does not belong to Mrs. Holm, and she is not “Maggie Holm.”
`101. Upon information and belief, Defendants put the account into a “Fraud
`Due to Identity Theft” status.
`102. Plaintiffs personally, and through undersigned counsel, provided
`Defendants notice of the dispute, and documentation in support of the account’s
`fraudulent status.
`103. Defendants negligently and/or willfully refused to honor Plaintiffs’
`dispute.
`
`18 15 U.S.C. § 1681(a)(1).
`19 15 U.S.C. § 1681m(f)(1).
`
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`104. Upon information and belief, Defendants negligently and/or willfully
`failed to timely and reasonably investigate Plaintiffs’ dispute.
`sent Defendants
`105. Plaintiffs,
`through undersigned
`counsel,
`correspondence detailing the basis of the dispute on July 22, 2019.
`106. Despite notice of the dispute and supporting documentation in support
`of Plaintiffs’ position, Defendants have placed, or imminently will place, the
`fraudulent account with a debt collector.
`107. Plaintiffs have suffered emotionally, physically, and financially due to
`the inaccurate credit reporting and harassing collection attempts by Defendants.
`108. Defendants’ willful violation of the FCRA renders it liable for actual,
`statutory, and punitive damages, including Plaintiffs’ reasonable attorneys’ fees
`and court costs.20
`
`COUNT II
`VIOLATION OF THE FCRA
`Failure to Provide Accurate Information
`109. Plaintiffs incorporate and allege ¶¶ 1-108 as though fully set forth
`
`here.
`
`110. Under the FCRA, “a person who regularly and in the ordinary course
`of business furnishes information to one or more consumer reporting agencies …
`and has furnished to a consumer reporting agency information that the person
`determines is not complete or accurate … shall not thereafter furnish to the agency
`any of the information that remains not complete or accurate.”21
`111. Upon information and belief, Defendants have negligently or willfully
`refused to correct its inaccurate information regarding Mrs. Holm, and it has
`refused to correct its prior credit reports regarding her.
`
`20 See 15 U.S.C. § 1681n.
`21 15 U.S.C. § 1681s-2.
`
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`Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 13 of 22
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`112. Defendants have refused to provide Plaintiffs with proof of the
`fraudulent account’s closure or otherwise respond to Plaintiffs’ requests for
`account verification and closure.
`113. Defendants have reason to know the information they have provided
`to consumer reporting agencies about Mrs. Holm is inaccurate and they have
`negligently or willfully refused to correct the inaccurate information by timely
`closing the fraudulent account.
`114. As a result of Defendants’ inaction, collection efforts and consumer
`reporting continues against Mrs. Holm.
`115. Upon information and belief, Defendants have placed, or imminently
`will place, the fraudulent account with a debt collector knowing collection efforts
`and consumer reporting will continue against Mrs. Holm.
`116. Plaintiffs have suffered emotionally, physically, and financially due to
`the inaccurate credit reporting and harassing collection attempts by Defendants.
`117. Defendants’ willful violation of the FCRA renders it liable for actual,
`statutory, and punitive damages, including Plaintiffs’ reasonable attorneys’ fees
`and court costs.22
`
`COUNT III
`VIOLATION OF THE FDCPA
`Contact After Notice of Attorney Representation
`118. Plaintiffs incorporate and allege ¶¶ 1-117 as though fully set forth
`
`here.
`
`119. The purpose of the FDCPA is to “eliminate abusive debt collection
`practices by debt collectors, to ensure that those debt collectors who refrain from
`using debt collection practices are not competitively disadvantaged, and to
`
`22 See 15 U.S.C. § 1681n.
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`promote consistent State action to protect consumers against debt collection
`abuses.”23
`120. Debt collectors, like Defendants, may not contact a consumer “after
`the debt collector knows the consumer is represented by an attorney with regard
`to the subject debt and has knowledge of, or can readily ascertain, such attorney’s
`name and address.”24
`121. Plaintiffs notified Defendants of their representation by undersigned
`counsel on July 22, 2019.
`122. Despite this notification, Defendants have continued to contact
`Plaintiffs, including a “past due” notice on August 2, 2019.
`123. Defendants’ continued communication with Plaintiffs despite
`knowledge of attorney representation, violates the FDCPA.
`124. Plaintiffs have suffered emotionally, physically, and financially as a
`result of Defendants’ continued, harassing collection attempts.
`125. Defendants’ violation of the FDCPA renders them liable for actual and
`statutory damages, reasonable attorneys’ fees, and court costs.25
`COUNT IV
`VIOLATION OF THE FDCPA
`False/Misleading Statements or Misrepresentations
`126. Plaintiffs incorporate and allege ¶¶ 1-125 as though fully set forth
`
`here.
`
`127. Under the FDCPA, “a debt collector may not use any false, deceptive,
`or misleading representation or means in connection with the collection of any
`debt.”26
`
`
`
`23 15 U.S.C. § 1962(e).
`24 15 U.S.C. § 1692b(6).
`25 15 U.S.C. § 1692k.
`26 15 U.S.C. § 1692e(8).
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`Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 15 of 22
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`128. A debt collector may not communicate or threaten to communicate to
`any person credit information that it knows, or should know, to be false, including
`the failure to communicate that a debt is disputed.27
`129. Defendants’ threatening letters and invoices stating the unpaid,
`fraudulent service fees, and equipment costs will be reported against Mrs. Holm’s
`credit files violates the FDCPA because Defendants may not report a debt they
`know or should know is inaccurate.28
`130. Defendants’ statements were false, misleading, harassing, and
`deceptive in violation of the FDCPA.
`131. Plaintiffs have suffered emotionally, physically, and financially as a
`result of Defendants’ continued, harassing collection attempts.
`132. Defendants’ violation of the FDCPA renders them liable for actual and
`statutory damages, reasonable attorneys’ fees, and court costs.29
`COUNT V
`VIOLATION OF THE AzFDCPA
`Unfair and Deceptive Acts and Practices
`133. Plaintiffs incorporate and allege ¶¶ 1-132 as though fully set forth
`
`here.
`
`134. Under the AzFDCPA, Defendants conduct enumerated above,
`including its negligent and willful false misrepresentations, failure to timely
`investigate Plaintiffs’ valid dispute, failure to timely close the fraudulent account,
`and willful failure to confirm the fraudulent account’s closure in writing.
`
`
`
`27 See id.
`28 See 15 U.S.C. §§ 1681m(f)(1) and 1681s-2.
`29 15 U.S.C. § 1692k.
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`Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 16 of 22
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`135. Defendants’ failure to have reasonable policies and procedures in
`place to receive and timely respond to disputes of the type alleged by Plaintiffs is
`an unfair and deceptive practice.
`136. Defendants intended Plaintiffs to rely on the false and/or misleading
`promises made regarding the fraudulent account’s investigation and closure.
`137. Upon information and belief, Defendants unfairly and deceptively
`have placed, or will imminently place, the fraudulent account with a debt collector
`knowing collection efforts and consumer reporting will continue against Mrs. Holm,
`which is an unfair and deceptive practice.
`138. Defendants’ unfair, deceptive, and harassing conduct involves trade
`or commerce in Arizona.
`139. Plaintiffs have suffered emotionally, physically, and financially as a
`result of Defendants’ continued, harassing unfair and deceptive practices.
`140. Defendants’ violation of the AzFDCPA renders them liable for actual
`and statutory damages, reasonable attorneys’ fees, and court costs.
`COUNT VI
`Negligence/Gross Negligence
`141. Plaintiffs incorporate and allege ¶¶ 1-140 as though fully set forth
`
`here.
`
`142. In Arizona, a defendant may not make a false statement of fact for its
`personal benefit.
`143. Negligent or fraudulent misrepresentations occur when the statement
`is: (1) known to be false or made without adequate investigation into its
`truthfulness; (2) defendant made the statement in order to induce plaintiffs action;
`(3) defendant intended plaintiff to rely on the truthfulness of the statement; and (4)
`plaintiff suffered damages as a result.
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`Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 17 of 22
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`144. Gross negligence occurs when a defendant acts with a reckless
`disregard for safety of others, especially where the action demonstrates a
`conscious violation of the other individual’s rights.
`145. Where a party has been grossly negligent, punitive damages are
`available to punish the defendant’s outrageous conduct and deter others from
`engaging in similar misconduct in Arizona.
`146. To establish a basis for punitive damages, a plaintiff must show the
`defendant engaged either: (1) in a course of conduct the defendant knew would
`likely cause injury; or (2) a course of conduct so outrageous it can be assumed
`defendant consciously disregarded the substantial risk of harm to the plaintiff.
`147. Defendants conduct enumerated above demonstrates negligence,
`gross negligence, and Plaintiffs’ entitlement to punitive damages.
`148. Specifically, Defendants:
`a. Repeatedly and falsely represented Mrs. Holm’s identity had not
`been stolen;
`b. Repeatedly and falsely represented the fraudulent account was
`being investigated;
`c. Repeatedly and harassingly indicated they would contact the
`criminal who opened the account to “verify” its authenticity;
`d. Deceptively asked Plaintiffs for more information/documentation
`regarding the dispute but failed to investigate or close the
`fraudulent account;
`e. Falsely and deceptively promised Plaintiffs the fraudulent account
`had been closed;
`f. Falsely and deceptively promised Plaintiffs would not be
`responsible for any service fees or equipment charges; but
`g. Deceptively and unfairly continuing their collection efforts against
`Plaintiff on the fraudulent account; and
`h. Continuing to contact Plaintiffs after having been given notice of
`Plaintiffs’ representation by undersigned counsel.
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`Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 18 of 22
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`149. Through these actions and others, Defendants demonstrate their
`gross disregard for Plaintiffs credit rights and personal finances.
`150. Given
`the support and documentation provided by Plaintiffs
`Defendants’ conduct is extreme and outrageous.
`151. Defendants’ outrageous conduct and communications demonstrate
`they knew or should have known their inaction by failing to timely close the
`fraudulent account would cause significant injury to Plaintiffs’ credit rights.
`152. Defendants’ outrageous conduct also demonstrates a conscious
`disregard for the likelihood of significant financial injury falsely reporting the
`fraudulent account would cause the plaintiffs.
`153. Plaintiffs have suffered emotionally, physically, and financially as a
`result of Defendants’ continued, grossly negligent, harassing, unfair and deceptive
`conduct.
`154. Defendants’ negligent and grossly negligent conduct renders them
`liable for actual, statutory, and punitive damages, reasonable attorneys’ fees, and
`court costs.
`
`COUNT VII
`Intentional Infliction of Emotional Distress
`155. Plaintiffs incorporate and allege ¶¶ 1-154 as though fully set forth
`
`here.
`
`156. Intentional Infliction of Emotional Distress occurs when a defendant’s
`extreme or outrageous conduct recklessly or intentionally causes a plaintiff severe
`emotional distress.
`157. Here Defendants’ extreme and outrageous conduct enumerated in
`Paragraph 148 above caused Plaintiffs severe emotional distress.
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`Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 19 of 22
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`158. While not required, this emotional distress caused both Plaintiffs
`physical and emotional injuries including, but not limited to, stress, anxiety, and
`loss of sleep.
`159. Defendants’ reckless and/or willful infliction of emotional distress upon
`Plaintiffs renders them liable for actual, statutory, and punitive damages, and court
`costs.
`
`COUNT VIII
`Negligent Infliction of Emotional Distress
`160. Plaintiffs incorporate and allege ¶¶ 1-159 as though fully set forth
`
`here.
`
`161. Negligent Infliction of Emotional Distress occurs when a defendant’s
`conduct negligently causes a plaintiff severe emotional distress.
`162. Here Defendants’ extreme and outrageous conduct enumerated in
`Paragraph 148 above caused Plaintiffs severe emotional distress.
`163. While not required, this emotional distress caused both Plaintiffs
`physical and emotional injuries including, but not limited to, stress, anxiety, and
`loss of sleep.
`164. Defendants’ negligent infliction of emotional distress upon Plaintiffs
`renders them liable for actual and statutory damages, and court costs.
`COUNT IX
`Permanent Injunction Against Harassment
`165. Plaintiffs incorporate and allege ¶¶ 1-164 as though fully set forth
`
`here.
`
`166. Defendants false, deceptive, and harassing conduct toward Plaintiff
`as enumerated above demonstrate a pattern of harassment.
`167. In addition, upon information and belief Defendants have placed, and
`intend imminently place, the fraudulent account with a debt collector.
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`Case 2:19-cv-05469-SMB Document 1 Filed 10/22/19 Page 20 of 22
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`168. If Defendants are allowed to proceed with placing the fraudulent
`account with a debt collector, it will cause significant financial injury

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