UNITED STATES DISTRICT COURT FOR THE EASTERN …

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

MILWAUKEE DIVISION

MELISSA HIRTHE, Individually and on Behalf ) Case No.: 16-cv-1517

)

of All Others Similarly Situated,

) CLASS ACTION COMPLAINT

)

Plaintiff,

)

v.

)

) Jury Trial Demanded

)

BANK OF AMERICA, N.A.,

)

)

Defendant.

)

INTRODUCTION

1.

This class action seeks redress for collection practices that violate the Fair Debt

Collection Practices Act, 15 U.S.C. ¡ì 1692 et seq. (the ¡°FDCPA¡±).

JURISDICTION AND VENUE

2.

The court has jurisdiction to grant the relief sought by the Plaintiff pursuant to 15

U.S.C. ¡ì 1692k and 28 U.S.C. ¡ì¡ì 1331 and 1337. Venue in this District is proper in that

Defendant directed its collection efforts into the District.

PARTIES

3.

Plaintiff Melissa Hirthe is an individual who resides in the Eastern District of

Wisconsin (Milwaukee County).

4.

Plaintiff is a ¡°consumer¡± as defined in the FDCPA, 15 U.S.C. ¡ì 1692a(3), in that

Defendant sought to collect from her, a debt allegedly incurred for personal, family or household

purposes.

5.

Defendant Bank of America, NA (¡°BoA¡±) is a national banking association with

offices at 100 North Tryon Street, Charlotte, NC 28255.

Case 2:16-cv-01517-DEJ Filed 11/14/16 Page 1 of 14 Document 1

6.

BoA is engaged in the business of collecting debts owed to others and incurred for

personal, family or household purposes. BoA is a ¡°debt collector¡± as defined in 15 U.S.C. ¡ì

1692a.

FACTS

7.

Plaintiff

Melissa

Hirthe

owns

a

home

at

327

West

Armour

Avenue, Milwaukee, Wisconsin (the ¡°Property¡±).

8.

At all times relevant to this complaint, the Property was Plaintiff¡¯s primary

residence.

9.

Prior to August 1, 2016, the Property was encumbered by a note and mortgage

with a lender other than BoA.

10.

By March 2016 at the latest, Plaintiff had defaulted on the Loan. Upon

information and belief, Plaintiff was more than five payments behind on August 1, 2016.

11.

Prior to August 11, 2016, and after Plaintiff¡¯s loan was in default, the previous

creditor sold or otherwise assigned the ownership rights to Plaintiff¡¯s loan to BoA.

12.

A party like BoA who takes assignment of a loan that is in default is a debt

collector under the FDCPA. 15 U.S.C. ¡ì 1692a(6)(F)(iii); Schlosser v. Fairbanks Capital Corp.,

323 F.3d 534, 536 (7th Cir. 2003).

13.

On or about August 11, 2016, BoA mailed a debt collection letter to Plaintiff

regarding the Loan. A copy of this letter is attached as Exhibit A.

14.

Exhibit A was the first written communication containing any language relating to

debt collection that Plaintiff received from BoA regarding the Loan.

15.

Exhibit A states that the previous owner of the home loan, assigned, sold or

transferred the Loan to BoA on August 1, 2016.

2

Case 2:16-cv-01517-DEJ Filed 11/14/16 Page 2 of 14 Document 1

16.

Upon information and belief, Exhibit A is a form letter, generated by computer,

and with the information specific to Plaintiff inserted by computer.

17.

On or about August 17, 2016, BoA mailed a debt collection letter to Plaintiff

regarding the Loan. A copy of this letter is attached as Exhibit B.

18.

Exhibit B was the second written communication containing any language

relating to debt collection that Plaintiff received from BoA regarding the Loan.

19.

Upon information and belief, Exhibit B is a form letter, generated by computer,

and with the information specific to Plaintiff inserted by computer.

20.

Exhibit B seeks to collect a debt.

21.

Exhibit B states:

22.

Exhibit B also states:

23.

Exhibit B also states:

3

Case 2:16-cv-01517-DEJ Filed 11/14/16 Page 3 of 14 Document 1

24.

Exhibit B also states:

25.

Exhibit B also states:

26.

Exhibit B states:

27.

Exhibit B states on the payment slip attachment:

4

Case 2:16-cv-01517-DEJ Filed 11/14/16 Page 4 of 14 Document 1

28.

Exhibit B includes the notice that the debt collector must disclose in its initial

written communication with the consumer, pursuant to the FDCPA, 15 U.S.C. ¡ì 1692e(11).

Exhibit B (¡°Bank of America, N.A. is required by law to inform you that this communication is

from a debt collector.¡±)

29.

Exhibit B would not have been sent to Plaintiff for any purpose other than debt

collection.

30.

Upon information and belief, Exhibit B would not have been sent to any class

member for any purpose other than debt collection for the same reason.

31.

Neither Exhibit A nor Exhibit B includes the FDCPA debt validation notice,

which requires:

(a) Notice of debt; contents

Within five days after the initial communication with a consumer in

connection with the collection of any debt, a debt collector shall, unless

the following information is contained in the initial communication or the

consumer has paid the debt, send the consumer a written notice

containing¡ª

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of

the notice, disputes the validity of the debt, or any portion thereof, the debt

will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing

within the thirty-day period that the debt, or any portion thereof, is

disputed, the debt collector will obtain verification of the debt or a copy of

a judgment against the consumer and a copy of such verification or

judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer¡¯s written request within the thirtyday period, the debt collector will provide the consumer with the name

and address of the original creditor, if different from the current creditor.

15 U.S.C. ¡ì 1692g(a) (the ¡°Validation Notice¡±).

5

Case 2:16-cv-01517-DEJ Filed 11/14/16 Page 5 of 14 Document 1

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