Simpson v Dyck O’Neal and Consuegra complaint - by...

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

RICHARD SIMPSON, JR., on behalf of himself and all others similarly situated,

Plaintiff, Case No.: _______________

v. CLASS REPRESENTATION

JURY TRIAL DEMANDED

LAW OFFICES OF DANIEL C. CONSUEGRA, INJUNCTIVE RELIEF SOUGHT

P.L., a Florida Professional Limited Liability Company, and DYCK-O’NEAL, INC., a Texas Corporation.

Defendants. /

CLASS ACTION COMPLAINT

Plaintiff, RICHARD SIMPSON JR (hereinafter “Plaintiff”), by and through his

undersigned counsel, brings this suit against Defendants, LAW OFFICES OF DANIEL C.

CONSUEGRA, P.L., a Florida Professional Limited Liability Company, and DYCK-O’NEAL,

INC., a Texas Corporation, and alleges:

I. INTRODUCTION

1. This is a class action brought under the Fair Debt Collection Practices Act, 15

U.S.C. § 1692 et seq. (“FDCPA”).

2. This action arises out of Defendants’ systematic violations of the FDCPA’s venue

provision, and more specifically, by filing suit against Plaintiff and members the putative class in

venues other than where they reside. Plaintiff requests a declaratory judgment that Defendants’

conduct violates the FDCPA and seeks an award of actual and statutory damages for himself and

each member of the putative class.

Case 8:14-cv-01946-VMC-AEP Document 1 Filed 08/12/14 of 52 PageID 1

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II. JURISDICTION AND VENUE

3. This Court has jurisdiction under 15 U.S.C. § 1692k, and 28 U.S.C. § 1331.

Declaratory relief is available pursuant to 28 U.S.C. §§ 2201 and 2202. Venue is proper in this

District because Defendants are engaged in business in this District, a substantial part of the events

or omissions giving rise to the claim occurred in this District, and Defendant LAW OFFICES OF

DANIEL C. CONSUEGRA, P.L. has its principal place of business in this District.

III. PARTIES

4. Plaintiff, RICHARD SIMPSON, JR. (“Plaintiff” or “MR. SIMPSON”), is a natural

person, and citizen of the State of Massachusetts, residing in Bellingham, Massachusetts.

5. Defendant, LAW OFFICES OF DANIEL C. CONSUEGRA, P.L.

(“CONSUEGRA LAW”), is a Florida Professional Limited Liability Company and law firm

engaged in the business of debt collection, including but not limited to the filing of deficiency

judgment actions throughout the State of Florida. The principal place of business for

CONSUEGRA LAW is 9204 King Palm Drive, Tampa, Florida, 33619.

6. Defendant, DYCK-O’NEAL, INC. (“DYCK-O’NEAL”), is a Texas corporation

with its principal place of business in Arlington, Texas. DYCK-O’NEAL is a nationwide purchaser,

collector, and default servicer of real estate loan deficiencies, first and second mortgage notes,

judgments and promissory notes.

7. Together, Defendants regularly collect or attempt to collect debts for themselves

and other parties through themselves or agents. They are “debt collectors” as that term is defined

by the FDCPA.

8. At all times material to the allegations of this Complaint, Defendants were acting

as debt collectors with respect to the collection of the debts of Plaintiff and the putative class.


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IV. FACTUAL ALLEGATIONS

A. Plaintiff’s Facts

9. On or about February 11, 2014, Defendants filed a lawsuit against Plaintiff in the

Circuit Court of the Fourth Judicial Circuit of the State of Florida, in and for Duval County, Florida

(hereinafter the “Deficiency Judgment Action”).

10. In the Deficiency Judgment Action, Defendants sought a judgment for $26,651.98

in damages against Plaintiff, which was the amount of the alleged deficiency arising out of a final

judgment of foreclosure entered on November 23, 2009. The alleged deficiency was calculated

by Defendants as the amount remaining from the foreclosure judgment after subtraction of the

subject property’s appraised value. Attached hereto as “Exhibit A” is a copy of the complaint filed

by Defendants in the Deficiency Judgment Action (“Deficiency Judgment Complaint”).

11. The Deficiency Judgment Action was preceded by communications from DYCK-

O’NEAL and CONSUEGRA LAW to Plaintiff at this Bellingham, Massachusetts address which

stated that the communications were “from a debt collector.”

12. Simultaneous with filing of the Deficiency Judgment Complaint, Defendants also

filed a summons for issuance by the circuit court clerk, to be served on Plaintiff in Bellingham,

Massachusetts, and requesting that Plaintiff respond to “ATTORNEY FOR PLAINTIFF[,]

DANIEL C. CONSUEGRA, ESQUIRE[,] 9204 King Palm Drive[,] Tampa, FL 33619-1328”

(“Summons” attached as “Exhibit B”).

13. At the moment Defendants filed the Deficiency Judgment Complaint and

corresponding Summons, Defendants knew that they were filing a deficiency lawsuit in Florida

based on a consumer debt previously reduced to judgment, despite the fact that Plaintiff resided in

Massachusetts—as described in greater detail below.


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14. After the Deficiency Judgment Complaint was served on Plaintiff, Defendants were

again notified by Return of Service that Plaintiff resides in Bellingham, Massachusetts (“Return

of Service” attached as “Exhibit C”).

15. The “venue” provision of the FDCPA provides that a debt collector shall bring any

legal action, excepting an action to enforce an interest in real property:

[O]nly in the judicial district or similar legal entity - -

(A) in which such consumer signed the contract sued upon; or

(B) in which such consumer resides at the commencement of the action.

15 U.S.C. § 1692i(a) (emphasis added).

16. In enacting the FDCPA venue provision, Congress was concerned about debt

collectors pursuing debt-collection actions against consumers in “distant or inconvenient” courts

with the goal of receiving default judgments. S. Rep. No. 95-382, at 5, reprinted in 1977

U.S.C.C.A.N. 1695, 1699.

17. The cause of action on which the Deficiency Judgment Complaint was based

necessarily arose from a final judgment and foreclosure sale, and did not arise from a contract.

See, e.g., Chrestensen v. Eurogest, Inc., 906 So. 2d 343, 345-46 (Fla. 4th DCA 2005) (the doctrine

of merger dictates that an action for a deficiency is not based on the mortgage note, but is based

on the foreclosure judgment and foreclosure sale).

18. Because the deficiency lawsuit was based on the judgment rather than contract, the

only venue in which Defendants could properly bring the Deficiency Judgment Action was where

Plaintiff resided at the time the action was filed, Bellingham, Massachusetts. See 15 U.S.C. §

1692i(a)(2). By knowingly filing a legal action to collect a deficiency judgment against Plaintiff


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in Duval County, Florida, when Defendants knew that Plaintiff resided in Massachusetts,

Defendants violated the venue provision of the FDCPA.

19. Upon information and belief, Defendants filed the Deficiency Judgment Action

with the intent to evade the FDCPA’s protections afforded to Plaintiff. Specifically, Defendants

filed a separate legal action against Plaintiff for a deficiency amount resulting from the foreclosure

judgment and sale, which was assigned to Defendant DYCK-O’NEAL four years after the

foreclosure judgment was entered, and after the sale of the underlying property.

20. As a result of Defendants’ unlawful conduct, a default judgment was entered

against Plaintiff in the Deficiency Judgment Action.

B. Defendants’ Practices

21. Upon information and belief, DYCK-O’NEAL purchased thousands of deficiency

judgment debts, including the debts of Plaintiff and other putative class members. Its business

model is based on the filing of deficiency judgment actions and the collection of funds from debtors

over time through garnishment or other means. As part of this larger transaction, DYCK-O’NEAL

contracted with CONSUEGRA LAW to collect the deficiency judgments in Florida, and

authorized CONSUEGRA LAW to file deficiency judgment actions on its behalf throughout the

state of Florida.

22. Upon information, belief, it is the policy and practice of Defendants to routinely

file deficiency judgment actions in the same Court as the original foreclosure action regardless of

where the out-of-state consumer resides, in an attempt to diminish the consumers’ ability to defend

the collection actions.

23. By filing in the wrong venue, Defendants have a greater likelihood of obtaining

default judgments and asset garnishment against consumers who live outside of Florida.


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24. Because it is believed that DYCK-O’NEAL purchased the deficiency debts of

Plaintiff and the putative class for pennies on the dollar, default judgments and subsequent asset

garnishment provides a significant return on its investment.

V. CLASS REPRESENTATION ALLEGATIONS

25. Pursuant to Federal Rule of Civil Procedure 23(a), (b)(2) and (b)(3), Plaintiff brings

this action on behalf of himself and all others similarly situated.

26. The Class(es) are defined as:

All persons in the United States against whom: (1) lawsuits to collect deficiency judgments were filed in the State of Florida on behalf of DYCK-O’NEAL by CONSUEGRA LAW; (2) where such persons resided outside the State of Florida as indicated by an address listed on the Summons served with the Complaint, (similar to Exhibit B); (3) within the one year period of time prior to the filing of this Complaint and continuing through the date the Court Certifies the Class. The Default Subclass is further defined as: All members of the above Class who subsequently had a Default entered against them by a Florida Court.

27. Plaintiff is unable to state the exact number of members of the putative Class

because that information is solely in the possession of Defendants. However, the exact number of

class members, including the names and addresses of all class members, will be easily ascertained

through a review of Defendants’ business records. Upon information and belief, the putative Class

exceeds several hundred consumers. It is believed that DYCK-O’NEAL purchased thousands of

deficiency debts similar to Plaintiff’s alleged debt, and has filed legal actions in the vast majority

of them due to statutory deadlines for filing deficiency judgments. Therefore, the putative Class is

so numerous that joinder of all members would be impracticable.


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28. Questions of law and fact common to the Plaintiff and the putative class exist and

predominate over questions affecting only individual members, including:

(a) Whether Defendants violated 15 U.S.C. § 1692i by bringing deficiency actions

against out-of-state consumers (Plaintiff and the putative class) in the State of

Florida; and

(b) Whether Plaintiff and the putative class is entitled to declaratory relief.

29. The claims asserted by the named Plaintiff in this action are typical of the claims

of the members of the putative Class because, upon information and belief, Defendants have

decided to sue out-of-state consumers for deficiencies related to Florida foreclosure judgments.

The claims of the Plaintiff and of the putative Class originate from the same conduct, practice, and

procedure, on the part of Defendants. Plaintiff possesses the same interests and has suffered the

same injuries as each putative Class member.

30. The named Plaintiff will fairly and adequately represent and protect the interest of

the members of the putative Class because he has no interest antagonistic to the Class he seeks to

represent, and because the adjudication of his claims will necessarily decide the identical issues

for other class members. Whether the Defendants’ uniform conduct of suing out-of-state

consumers in a Florida Court violates the FDCPA’s venue provision is an issue that will be decided

for all other members of the putative class. There is nothing peculiar about the Plaintiffs’ situation

that would make him inadequate as Class representative. Plaintiff has retained counsel competent

and experienced in debt defense, consumer protection, and class action litigation.

31. A class action is superior to other methods for the fair and efficient adjudication of

this controversy because the damages suffered by each individual Class member will be relatively

modest, compared to the expense and burden of individual litigation. It would be impracticable


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for each Class member to seek redress individually for the wrongful conduct alleged herein

because the cost of such individual litigation would be cost prohibitive as individual statutory

damages for each violation are capped at $1,000.00. It would be difficult, if not impossible, to

obtain counsel to represent Plaintiff on an individual basis for such small claims. More

importantly, the vast majority of Class members are not aware that the Defendants’ conduct

violates the FDCPA, and a class action is the only viable means of adjudicating their individual

rights. There will be no difficulty in the management of this litigation as a class action as the legal

issues affect a standardized pattern of conduct by Defendants and class actions are commonly used

in such circumstances.

32. Defendants also acted and refused to act on grounds generally applicable to the

Class, thereby making appropriate declaratory relief with respect to the Class as a whole.

COUNT I: VIOLATION OF THE FAIR DEBT COLLECTION

PRACTICES ACT (“FDCPA”)

33. Plaintiff, on behalf of himself and all others similarly situated, repeat and re-allege

each and every allegation contained in paragraphs 1 through 32 above as if fully set forth herein.

34. The FDCPA was enacted to protect consumers from debt collectors who seek to

collect debts through illegal or improper means and who engage in unfair and/or deceptive

practices during the collection of a debt. See 15 U.S.C. § 1692.

35. At all material times herein, Plaintiff and Class members were “consumers” as

defined by 15 U.S.C. § 1692a(3). Plaintiff and Class members were allegedly obligated to pay a

deficiency debt created by a foreclosure judgment, as alleged in the deficiency judgment suits.

36. At all material times, Plaintiff’s debt and the debts of the Class members were “debts”

as defined by 15 U.S.C. § 1692a(5). The foreclosure judgments of Plaintiff and the class arose out of

transactions which were entered into for personal, family, and household purposes.


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37. At all material times, Defendants were “debt collectors” as defined by 15 U.S.C. §

1692a(6).

a. The principal purpose of DYCK-O’NEAL is collection of debts, and pursuant to the

same, DYCK-O’NEAL used instrumentalities of interstate commerce, through itself

or agents, by mailing letters regarding debts and using process servers across state

lines. DYCK-O’NEAL also regularly collects directly or indirectly, debts that were

originally owned by another—as in this case. Finally, DYCK-O’NEAL calls itself a

debt collector and a debt buyer in communications to consumers.

b. The principal purpose of CONSUEGRA LAW is collection of consumer debts, and

pursuant to the same, the CONSUEGRA LAW used instrumentalities of interstate

commerce by mailing letters regarding debts and using process servers across state

lines. CONSUEGRA LAW also regularly collects directly or indirectly, debts

originally owned by another—as in this case. Finally, CONSUEGRA LAW calls

itself a debt collector in communications to consumers.

38. Defendants violated the FDCPA’s venue provision by bringing legal actions to

collect debts against Plaintiff and the Class in Florida, despite the fact that Plaintiff and the Class

reside outside the State of Florida.

39. Defendants filed standard deficiency complaints against Plaintiff and all Class

members, which included similar, if not identical Summons as used in the Deficiency Judgment

Action (Exhibit B).

40. Section 1692i of the FDCPA required that Defendants file their deficiency

complaints against Plaintiff and the putative Class where these consumers reside, not where the

underlying foreclosure action took place.


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41. Because the mortgage note and mortgage merged into the final judgment, the

deficiency actions filed by Defendants against Plaintiff and the putative Class are not based on the

mortgage note (contract) or mortgage. Chrestensen v. Eurogest, Inc., 906 So. 2d 343 (Fla. 4th

DCA 2005) (an action for a deficiency is not based on the mortgage note, but is based on the

foreclosure judgment and foreclosure sale). Therefore, the only appropriate venue where

Defendants could have sued Plaintiff and the Class was the county where they reside. See FDCPA

§ 1692i(a)(2).

42. Defendants knew or should have known that the proper venue to file the legal action

for deficiency judgment against Plaintiff was his place of residence, Massachusetts, instead of

Duval County, Florida. Defendants drafted a summons with Plaintiff’s Massachusetts’ address,

hired a process server in Massachusetts, and received a return of service confirming that Plaintiff

was in fact served there. See Exhibits B and C.

43. As a result of Defendants’ conduct, a default was entered against Plaintiff and all

members of the Default Subclass.

44. As a direct and proximate result of Defendant’s FDCPA violations, Plaintiff and

the Class have been harmed. Plaintiff and the Class are entitled to actual damages, statutory

damages, and attorney’s fees and costs pursuant to 15 U.S.C. § 1692k.

45. In addition, Plaintiff and the Class seek a declaratory judgment that Defendants’

conduct addressed herein violates the FDCPA.


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COUNT II: RELIEF REQUESTED UNDER THE DECLARATORY

JUDGMENT ACT, 28 U.S.C. §§ 2201-2201

46. Plaintiff, on behalf of himself and all others similarly situated, repeat and re-allege

each and every allegation contained in paragraphs 1 through 32 above as if fully set forth herein.

47. The Declaratory Judgment Act, 28 U.S.C. §§ 2201-2201, offers a unique

mechanism by which a party may seek to remedy ongoing violations of statutory provisions and

to prevent ongoing harm in form of declaratory and injunctive relief.

48. Specifically, the Declaratory Judgment Act reads:

In a case of actual controversy within its jurisdiction…any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.

28 U.S.C. §§ 2201-2201

49. Defaults obtained by Defendants in lawsuits filed in the wrong venue in violation

of the FDCPA should be declared void for having been filed in the wrong venue.

50. Any of Defendants’ deficiency lawsuits pending against class members in Florida

Courts should be dismissed by Defendants after order of this Court.

51. Defendants should be enjoined from continuing to file suit against consumers in

jurisdictions other than where they reside.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that the Court enter an Order:


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a. Certifying this action as a class action as provided by Rule 23 of the Federal Rules

of Civil Procedure, appointing Plaintiff as class representative, and appointing the undersigned as

Class Counsel;

b. Adjudging that Defendants violated the FDCPA, 15 U.S.C. § 1692i, and awarding

Plaintiff and the Class members actual damages and statutory damages pursuant to 15 U.S.C. §

1692k;

c. Declaring that Defendants’ violated the FDCPA’s venue provision;

d. Declaring that any Deficiency Judgments obtained by Defendant against members

of the class are void;

e. Enjoining Defendants from filing deficiency judgment lawsuits in the wrong venue;

f. Awarding Plaintiff, and all those similarly situated, reasonable attorney’s fees and

costs incurred in this action pursuant 15 U.S.C. § 1692k;

g. Awarding Plaintiff, and all those similarly situated, any pre-judgment and post-

judgment interest as may be allowed under the law; and

h. Awarding such other and further relief as the Court may deem just and proper.

DEMAND FOR JURY TRIAL

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

Dated: August 11, 2014

[THIS SPACE INTENTIONALLY LEFT BLANK]


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Respectfully submitted,

PARKER & DUFRESNE, P.A.

_____/s/ Austin Brown________

E. Warren Parker, Jr., Esq. Florida Bar No. 958506 Austin Brown, Esq. Florida Bar No. 96633 Parker & DuFresne, P.A. 8777 San Jose Blvd., Ste. 301 Jacksonville, Florida 32217 Telephone: (904) 733-7766 Facsimile: (904) 733-2919 [email protected] (primary)

[email protected] (secondary)

VARNELL & WARWICK, P.A.

_/s/ Steven T. Simmons Jr.________

Steven T. Simmons, Jr. Florida Bar No.: 0091654

Janet R. Varnell Florida Bar No.: 0071072

Brian W. Warwick

Florida Bar No.: 0605573

P.O. Box 1870

Lady Lake, FL 32158

Telephone: (352) 753-8600

Facsimile: (352) 504-3301

[email protected] (primary)



[email protected] (secondary)



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Exhibit A


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Exhibit B


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Exhibit C


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