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1 Case 3:12-cv Document 1 Filed 03/27/12 Page 1 of 9 7:: ):::-I'ifillyi.17',.;1., :i 201: r:,,, IN THE UNITED STATES DISTRICT COURT 2 1,,,,,, 3AMIN FOR THE SOUTHERN DISTRICT OFINDIANA, t,,, MAKIN on behalf of herself and others similarly situated, Plaintiffs, V. BANK OF AMERICA, N.A., Defendant. JURY DEMANDED * /TL COMPLAINT CLASS ACTION 1. Plaintiff Amin Makin brings this action against Bank of America (USA), N.A. ("BofA"), for violation of the Telephone Consumer Protection Act, 47 U.S.C. 227 ("TCPA") 2. The TCPA, 47 U.S.C. 227(b)(1)(A)(iii), and applicable Federal Communications Commission regulations and orders prohibit creditors like Bank of America from using an "automatic telephone dialing system" to call the cellular telephone of persons who have indicated that they do not wish to be contacted in that manner, or demand that such calls cease. In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, GC , 23 FCC Rcd., 559, , also available at 2008 WL 65485, at *3 (Jan ). 3. Defendant called plaintiff numerous times in order to collect an alleged mortgage debt after plaintiff demanded that calls cease through filing a Chapter 13 bankruptcy, which strictly prohibits such contacts, and through repeated demands that the calls stop. 4. Plaintiff seeks statutory damages for himself and a class of similarly situated persons arising out of such illegal calls, and a class-wide injunction prohibiting future violations.

2 Case 3:12-cv Document 1 Filed 03/27/12 Page 2 of 9 JURISDICTION AND VENUE 5. This Court has federal question subject matter jurisdiction over this action pursuant to 28 U.S.C Mims v. Arrow Financial Services, Inc., 132 S.Ct. 740 (Jan. 18, 2012). 6. Venue is proper because a substantial portion of the events complained of occurred in this District. PARTIES 7. Plaintiff is an individual who resides in this District. 8. Bank of America, N.A. is one of the largest banks in the world. Bank of America N.A. is the successor by merger to BAC Home Loans Servicing, LP, plaintiffs mortgage servicing company. Originally, plaintiffs mortgage servicing company was Countrywide Home Loans Servicing, L.P., which was purchased by BAC Home Loans Servicing, LP. Allegations in this complaint that mention Bank of America, N.A. should be understood to include both that entity and its predecessor companies, BAC Home Loans Servicing, LP and Countrywide Home Loans Servicing, L.P. FACTS 9. The TCPA prohibits the use of any "automatic telephone dialing systems" cellular telephones. to call 10. "Automatic telephone dialing system" means any equipment that has the "capacity to dial numbers without human intervention." Griffith v. Consumer Portfolio Serv., Inc., 2011 WL (N.D.Ill. Aug. 16, 2011)(emphasis original). 2

3 Case 3:12-cv Document 1 Filed 03/27/12 Page 3 of In around 2009, BofA regularly used one or more "automatic telephone dialing systems" in collecting mortgage debts it believes to be overdue. 12. Plaintiff filed a Chapter 13 bankruptcy on March 18, 2009, Case No FJO-12 (S.D.Ind.). 13. Countrywide, and therefore defendant, received notice of the bankruptcy. It hired an attorney, who filed an appearance therein for Countrywide Home Loans, LP. 14. The notice of meeting of creditors sent to BoIA through Countrywide Home Loans, L.P. stated in pertinent part: Creditors May Not Take Certain Actions In most instances, the filing of the bankruptcy case automatically stays and other actions against the debtor, the debtor's property, and certain codebtors. certain collection 15. Defendant was not permitted to contact plaintiff to collect his allegedly overdue mortgage debt, after the filing of the bankruptcy, both by operation of law through the automatic stay, and because the affirmative act of filing a bankruptcy constitutes sufficient notice that a consumer does not wish to be contacted directly by creditors, regarding alleged debts. 16. Furthermore, plaintiffs attorney repeatedly demanded that BofA stop calling. 17. Despite these unequivocal instructions not to call, BofA continued to call plaintiff on his cellular telephone using TCPA-regulated dialing equipment. 18. According to telephone conversations, plaintiff understands that BofA has a policy of not honoring demands to stop calling under certain circumstances. 3

4 Case 3:12-cv Document 1 Filed 03/27/12 Page 4 of Apparently, plaintiff fell into a particular factual circumstance where BofA decided that its automated collection calls were more important than plaintiff's bankruptcy automatic stay, and more important than plaintiffs right to demand that automated calls to his cellular telephone cease. 20. Plaintiff and the class were substantially damaged by the violations alleged herein. They were forced to use airtime on their cellular telephone plans, their privacy was improperly invaded and they were subjected to illegal harassment when they were entitled to peace. COUNT I TCPA Class Claims 21. Plaintiff incorporates all previous paragraphs of this complaint. 22. it is a violation of the TCPA, 47 U.S.C. 227(b) to call a person's cellular telephone using an automatic telephone dialing system or prerecorded or artificial voice message, after a demand to stop, including the filing of a Chapter 13 bankruptcy. 23. Defendant has a policy, practice or procedure of continuing collection calls despite chapter 13 bankruptcies and despite other demands that calls cease. 24. BofA's violations were negligent, or alternatively, they were willful. 47 U.S.C. 312(f)(1). Class Allegations 25. Plaintiff brings Count I on behalf of a class, which consist of: All persons in Indiana, Illinois or Wisconsin, who defendant, its predecessors Countrywide Home Loans Servicing, LP, BAC Home Loans Servicing LP or some person on their behalf called on their cell phone using a device that has the capacity to dial numbers without human intervention and/or using an artificial or prerecorded voice, 4

5 Case 3:12-cv Document 1 Filed 03/27/12 Page 5 of 9 after the called party had filed a Chapter 13 bankruptcy and/or had otherwise demanded that calls to their cellular telephone cease, where, where any such call happened on or after a date four years prior to the filing of this action. 26. Upon information and belief, based upon industry practices and the experience of plaintiff and counsel, defendant called more than 100 Indiana, Illinois or Wisconsin cell phone numbers during 2009, after defendant had received notice of a chapter 13 bankruptcy filing by the called party. 27. Common questions of law and fact exist as to all members of the class and predominate over any questions solely affecting any individual member of the class, including plaintiff. Such questions common to the Class include, but are not limited to: a. Whether defendant used an automatic telephone dialing system as that term is defined in the TCPA and applicable FCC regulations and orders; b. Whether defendant used an "artificial or prerecorded voice" as that term Is used in the TCPA and applicable FCC regulations and orders; c. Whether a company may permissibly continue making autodialed and prerecorded voice calls after it has received a Chapter 13 notice of automatic stay and/or a demand to stop calling; and d. Damages, including whether the violation was willful. 28. Plaintiff will fairly and adequately protect the interests of the class. Plaintiff has no interests that might conflict with the interests of the class. Plaintiff is interested in pursuing his claims vigorously, and has retained counsel competent and experienced in class and complex litigation. 5

6 Case 3:12-cv Document 1 Filed 03/27/12 Page 6 of Class action treatment is superior to the alternatives for the fair and efficient adjudication of the controversy alleged herein. Such treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum simultaneously, efficiently, and without the duplication of effort and expense that numerous individual actions would entail. 30. No difficulties are likely to be encountered in the management of this class action that would preclude its maintenance as a class action, and no superior alternative exists for the fair and efficient adjudication of this controversy. 31. Defendant has acted on grounds generally applicable to the class, thereby making relief appropriate with respect to the class as a whole. Prosecution of separate actions by individual members of the class, should they realize their rights have been violated, would likely create the risk of inconsistent or varying adjudications with respect to individual members of the class that would establish incompatible standards of conduct. 32. The identity of the class is likely readily identifiable from defendant's records. 33. A class action is superior to other available methods for the fair and efficient adjudication of this controversy since joinder of all members is impracticable. WHEREFORE, plaintiff requests that the Court enter judgment in favor of himself and the class and against defendant that provides the following relief: a. Statutory damages of $500 per violation, and up to $1,500 per violation if proven to be willful; b. A permanent injunction prohibiting defendant from violating the TCPA in the future through calling cellular phones using an automatic telephone dialing 6

7 Case 3:12-cv Document 1 Filed 03/27/12 Page 7 of 9 system and/or a prerecorded voice message after it receives notice of a Chapter 13 bankruptcy by the called party, or a demand to stop; and c. Any other relief the Court finds just and proper. Respectfully submitted, Is/Alexander H. Burke Alexander H. Burke BURKE LAW OFFICES, LLC 155 N. Michigan Ave., Suite 9020 Chicago, IL (312) (312) (fax) ABurke@BurkeLawLLC.com /s/ Syed Ali Saeed Syed Ali Saeed Saeed & Little, LLP 1512 N. Delaware St. Indianapolis, (317) (888) (Fax) Ali@SLLawfirm.com IN 46202

8 Case 3:12-cv Document 1 Filed 03/27/12 Page 8 of 9 JURY DEMAND Plaintiff demands trial by jury. Is/Alexander H. Burke Alexander H. Burke BURKE LAW OFFICES, LLC 155 N. Michigan Ave., Suite 9020 Chicago, IL (312) (312) (fax) ABurke@BurkeLawLI.C.com /5/ Syed Ali Saeed Syed Ali Saeed Saeed & Little, LLP 1512 N. Delaware St. Indianapolis, IN (317) (888) (Fax) Ali@SLLawfirm.com DOCUMENT PRESERVATION DEMAND Plaintiff hereby demands that the defendant take affirmative steps to preserve all recordings, data, databases, call records, consent to receive autodialed or prerecorded calls, s, recordings, documents and all other tangible things that relate to the allegations herein, plaintiff or the putative class members, or the making of telephone calls, the events described herein, any third party associated with any telephone call, campaign, account, sale or file associated with plaintiff or the putative class members, and any account or number or symbol relating to any of them. These materials are very likely relevant to the litigation of this claim. If defendant is aware of any third party that has possession, custody or control of any such materials, plaintiff demands that defendant request that such third party also take steps to preserve the materials. This demand shall not narrow the scope of any independent document preservation duties of the defendant. /s/alexander H. Burke Alexander H. Burke 8 Is/ Sved Ali Saeed Syed Ali Saeed

9 Case 3:12-cv Document 1 Filed 03/27/12 Page 9 of 9 CERTIFICATE OF SERVICE I CERTIFY that a copy of the foregoing has been sent via certified mail to: Registered Agent for Bank Of America, CT Corporation System, 251 E Ohio Street, Indianapolis, IN this 27th day of March, /s/alexander H. Burke Alexander H. Burke /s/ Sved Ali Saeed Syed Ali Saeed 9

10 Case 3:12-cv Document 1-1 Filed 03/27/12 Page 1 of 1 IS 44 (Rev. 09/11) CIVIL COVER SHEET The IS 44 civil coversheet and the infonmtion contained herein neither replace nor supplenz.nt the filing and service ofpleadngs or other by local rules of papers as coutt. This form, mquiredhy law, approved by the except as Judicial Conference ofthe United States InSeptember 1974, Is piovided required for the use ofthe the civil docket sheet Clerk tcbtitt1br the (SEE INSTRUCTIONS ONNEXTPAGE OF purpose ofinitialing THIS FORM) I. (a) PLAINTIFFS DEFENDANTS i0/4 Amin Makin on behalf of herself and others similarly situated Bank of America, N.A tip P 2 7 pil 3: 53 (b) County ofresidence offirst Listed Plaintiff Marion County of Residence offirst Listed`Detttasinr. e', Mar101) k (EXCEPT IN US. PLAIN77FF CASES) 0 qtlef WTL -DKL Syd tone Alttit aeesdtee entitifillr17:cp Number) A s$ It A N h e g Aey NOTE: H. See,Eirt Attorneys afknown) LAta 0pp-ice 1114It KC 1512 N. Delaware Street Icr AP micwaga N Auc ste X3 Indianoolis. IN chtergo 1 IL 4 0 Go I (2./ Sa Eii (IN U.S PLAINTIFI6SW04,1,; IN LAND CON1IEM1A1dN CASEE,VSE THELOCATION OF THE TRACT OF LAND INVOLVED II. BASIS OF JURISDICTION (place an "X" m One Box Only) M. CITIZENSHIP OF PRINCIPAL PARTIES (Pla ce an "X" in One Box for Plainti,g) (ForDiversity Cases Only) and One 1:1 1 U.S. Government IX 3 Box for Federal Defendant) Question PTF DEF PTF DEF Plaintiff (US. Government Not a Party) Citizen ofthis State Incoiporated or Principal Place ofbusiness In This State 0 2 U.S. Government 0 4 Diversity Citizen of Another State Incorporated and Principal Place 0 5 CI 5 Defendant (Indicate Citizenship ofparties in Item III) ofbusiness In Another State IV. NATURE OF SUIT (Place an "X" in One Box Citizen or Subject of a CI Foreign Nation CI Foreign Country CI 110 Insurance PERSONAL INJURY PERSONAL INJURY Drug Related Seizure CI 422 Appeal 28 USC False Claims Act CI 120 Marine Airplane CI 365 Personal Injury ofproperty 21 0 USC 130 Ivliller Act Withdrawal CI 400 State Reapportionment Airplane Product Product Liability Other 28 USC 157 CI 410 Antitnist Negotiable Instrument Liability CI 367 Health Care/ Banks and CI 150 Banking Recover, ofoverpayment Assault, Libel & Pharmaceutical UFIiiTu Commerce & Enforcement of Judgment Slander Personal Injuty CI 820 Copyrights Medicare 460 Deportation Act Federal Employers' Product Liability CI 830 Patent CI 470 Racketeer Influenced and Recovery ofdefaulted Liability CI 368 Asbestos Personal Trademark Student Loans 0 Conupt Organizations 340 Marine Injury Product CI 480 'ConsumerCredit (Excl. Veterans) Marine Product Liability ' \Ft5.1.0"..- Alf1, 7-7.."',, t.:i. 1'i t47i tri, CI 490 Cable/Sat TV Recovery of Overpayment Liability PERSONAL PROPERTY Fair Labor Standards A (13955) Securities/Commodities/ of Veteran's Benefits Motor Vehicle Cl 370 Other Fraud Act CI 862 Black Lung (923) CI 160 Stockholders' Suits Exchange Motor Vehicle CI 371 Truth in Lending Labor/Mgint. Relations DIWC/DIWW (405(g)) X 890 Other Statutory Actions CI 190 Other Contract Product Liability CI 380 Other Personal CI 740 Railway Labor Act C1 864 SSID Title XVI CI 891 Agricultural Acts Contract Product Liability Other Personal Property Damage Family and Medical RSI (405(g)) Environmental Matteis CI 196 Franchise InIurY CI 385 Property Damage Leave Act Freedom ofinformation Personal Injuly Product Liability CP 790 Other Labor Litigation Act Med. Mal. ;ce Empl. Ret, Inc Arbitration i ''.'15, 1, ry,:i'iriz-q Tyci,. )1t-/quity...1,i,iy,,;:Erffimilam,111;o,F,..-1 secutity Act 1:7:141i.:4IT 1 'r "T" CI 899 Administrative Procedure CI 210 Land Condemnation Other Civil Rights Motions to Vacate Taxes (U.S. Plaintiff Act/Review or Foreclosure Appeal Voting Sentence of or Defendant) Agency Decision CI 230 Rent Lease & Ejectment Employment Habeas Corpus: IRS Third Party Constitutionality of Torts to Land CI 443 Housing/ General 26 USC 7609 State Statutes CI 245 Tort Product Liability Accommodations Death Penalty : ^;-.1Th ''' I.; & '..1 i '1 `, All Other Real Property Amer. w/disabilities CI 540 Mandamus & Other 462 Naturalization Art. nation Employment Civil Rights CI 463 Habeas Corpus Amer. w/disabilities Prison Condition Alien Detainee Other CI 560 Civil Detainee (Prisoner Petition) CI 448 Education Conditions of CI 465 Other Immigration Confinement Actions V. ORIGIN (Place an -X" in One Box Only) 2( 1 Transferred Original 0 2 Removed from 0 3 Remanded from 0 4 Reinstated from or 0 5 another district Proceeding State Court Appellate Court Reopened (meetly! Litigation Cite the U.S. Civil Statute under which you are filing (Do not eltejurisdictional statutes unless diversity): 47USC Section 227 VI. CAUSE OF ACTION Brief description of cause: FOR OFFICE USE ONLY 0 6 Multidistrict Violation of TCPA act resulting from cell phone calls made by defendant to plaintiff without consent VII. REQUESTED IN 2 CHECK IF THIS IS A CIASS ACTION DEMAND CHECK YES only ifdemanded in complaint: COMPLAINT: UNDER F.R.C.P. 23 JURY DEMAND: C1C Yes 0 No VIII. RELATED CASE(S) (See instnictions): IF ANY JUDGE DOCKET NUMBER DATE SIGNATURE F A OF RECORD 'FORNEY CS4E-1: ALA aaect:) RECEIPT 8 AMOUNT APPLYING IFP JUDGE MAG. JUDGE

11 Case 3:12-cv Document 1-2 Filed 03/27/12 Page 1 of 1 ftourt, Raiel Southern District of Indiana Division: i Receipt Number; IP Cashier ID: dhabing Transaction Date: 83/27/2812 Payer Name: SAEED LITTLE LLP CIVIL FILING FEE For: SAEED LITTLE, LLP Case/Party; D-ING"1-a-CV, Amount: $ CHECK Check/Money Order Num: 1296 Amt Tendered: $ Total Due; $358., t Total Tendered: $ Change Amt: $8.88 I:12-cv-8393-WTI-DNL 393-"A 'Only when bank clears the check, money order, or verifies credit of funds is the fee or debt officially paid or discharged. A $45.' fee will be charged for a returned check.",