UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA. Bryana Bible, SECOND AMENDED CLASS Plaintiff, Court File No. 12-cv RHK-JSM INTRODUCTION

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1 CASE 0:12-cv RHK-JSM Document 50 Filed 04/01/13 Page 1 of 16 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Bryana Bible, SECOND AMENDED CLASS Plaintiff, ACTION COMPLAINT v. JURY TRIAL DEMANDED General Revenue Corporation, Defendant. Court File No. 12-cv RHK-JSM INTRODUCTION 1. This action arises out of Defendant s violation of the Fair Debt Collection Practices Act, 15 U.S.C p ( FDCPA ) in its efforts to collect a student loan debt from Plaintiff and hundreds or thousands of other defaulted student loan borrowers. JURISDICTION 2. Jurisdiction arises under 28 U.S.C and pursuant to 15 U.S.C. 1692k(d), and, for the pendent state law claims, pursuant to 28 U.S.C The Court has authority to issue declaratory judgments pursuant to 28 U.S.C Venue is proper in this District pursuant to 28 U.S.C. 1391(b) because a substantial part of the events and omissions giving rise to the claims occurred here. TRIAL BY JURY 4. Plaintiff is entitled to and hereby respectfully demands a trial by jury. PARTIES 5. Plaintiff Bryana Bible is a natural person who resides in Ramsey County, 1

2 CASE 0:12-cv RHK-JSM Document 50 Filed 04/01/13 Page 2 of 16 Minnesota, and is a consumer as that term is defined by Section 1692a(3) Defendant General Revenue Corporation ( GRC ) is a foreign corporation engaged in the business of collecting debts in this state from its principal address of Northlake Drive, Cincinnati, Ohio Its registered agent for service of process in Minnesota is CT Corporation Systems, Inc., 100 South 5th Street, Suite 1075, Minneapolis, Minnesota It is a debt collector as that term is defined by Section 1692a(6) because it uses instrumentalities of interstate commerce or the mails in a business, the principal purpose of which is the collection of debts, and/or regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. FACTUAL ALLEGATIONS 7. Sometime around 2006/2007, Plaintiff allegedly incurred a financial obligation that was primarily for personal, family or household purposes and is, therefore, a debt as that term is defined by Section 1692a(5), namely student loans to Citibank. 8. Sometime thereafter, the alleged debt was assigned, purchased, placed or otherwise transferred to Defendant for collection from the Plaintiff. 9. Upon default, the guaranty agency, in this case United Student Aid Funds ( USAF ), pays the lender and takes assignment of the loan. 10. Upon payment of a default claim, federal regulation 34 C.F.R (b)(5) requires the guaranty agency to send the defaulted student loan borrower a written notice 1 References to sections of the FDCPA will exclude the title number for convenience. 2

3 CASE 0:12-cv RHK-JSM Document 50 Filed 04/01/13 Page 3 of 16 explaining their rights. One of these rights is the right to an administrative review of the legal enforceability or past-due status of the loan. 34 C.F.R (b)(5)(vi). 11. The deadline established by the agency for requesting administrative review under paragraph (b)(5)(ii)(c) of this section must allow the borrower at least 60 days from the date the notice described in paragraph (b)(5)(ii)(a) of this section is sent to request that review. 34 C.F.R (b)(5)(iv)(B). 12. Federal regulations also require the inclusion of certain specific information in the notice of default. The required information consists, in part, of the following: a. Identification of the school for attendance at which the loan was made. 34 C.F.R (b)(5)(vi)(B); b. An explanation of the interest rate on the loan, the authority for assessing the costs, and the manner in which the agency will calculate the amount of the costs. 34 C.F.R (b)(5)(vi)(E); c. Notification that the agency will report the default to all nationwide consumer reporting agencies to the detriment of the borrower s credit rating. 34 C.F.R (b)(5)(vi)(F); d. An explanation of the opportunities available to the borrower under agency rules to request access to the agency's records on the loan, to request an administrative review of the legal enforceability or past-due status of the loan, and to reach an agreement on repayment terms satisfactory to the agency to prevent the agency from reporting the loan as defaulted to consumer reporting agencies and provide deadlines and method for 3

4 CASE 0:12-cv RHK-JSM Document 50 Filed 04/01/13 Page 4 of 16 requesting this relief. 34 C.F.R (b)(5)(vi)(G); e. A description of the appeal rights available to the borrower from an adverse decision on administrative review of the loan obligation. 34 C.F.R (b)(5)(vi)(J); f. A description of the borrower s right to judicial review of an adverse decision by the agency regarding the legal enforceability or past-due status of the loan obligation. 34 C.F.R (b)(5)(vi)(K); and g. A description of the collection actions that the agency may take in the future if those presently proposed do not result in repayment of the loan obligation, including the filing of a lawsuit against the borrower by the agency and assignment of the loan to the Secretary for the filing of a lawsuit against the borrower by the Federal Government. 34 C.F.R (b)(5)(vi)(K). 13. On April 12, 2012, Defendant sent the notice required by 34 C.F.R (b)(5) on behalf of the guarantor of Plaintiff s student loans, USAF. 14. The notice, attached as Exhibit A, stated, You may also submit a request in writing within 30 days after receiving this notice to review the legal enforceability or past status of your loan obligation. 15. The notice failed to identify the school for attendance at which the loan was made. 16. The notice did not include an interest rate or explain how the costs are calculated, or the authority for collecting them. 17. The notice did not notify the borrower that the agency will report the default to all 4

5 CASE 0:12-cv RHK-JSM Document 50 Filed 04/01/13 Page 5 of 16 nationwide consumer reporting agencies to the detriment of the borrower s credit rating. 18. The notice does not include an explanation of the opportunities available to the borrower under agency rules to request access to the agency's records on the loan, to reach an agreement on repayment terms satisfactory to the agency to prevent the agency from reporting the loan as defaulted to consumer reporting agencies, or provide deadlines and method for requesting this relief. Nor does it include an accurate description of the time period within which the borrower may request an administrative review of the legal enforceability or past-due status of the loan. 19. The notice did not describe any appeal rights available to the borrower from an adverse decision on administrative review of the loan obligation. 20. The notice did not describe any right to judicial review of an adverse decision by the agency regarding the legal enforceability or past-due status of the loan obligation. 21. The notice did not mention the possibility of the filing of a lawsuit against the borrower by the agency and assignment of the loan to the Secretary for the filing of a lawsuit against the borrower by the federal government. CLASS ACTION ALLEGATIONS 22. Plaintiff brings this action in her individual capacity and on behalf of all persons in Minnesota to whom Defendant sent form letters in substantially the same form as Exhibit A at any time from May 23, 2011 to the entry of judgment in this matter, or such earlier class cut-off date as may be established by the Court. 23. The members of the Class are so numerous that joinder of all members is impracticable. The exact number of the class members is unknown at this time, but it 5

6 CASE 0:12-cv RHK-JSM Document 50 Filed 04/01/13 Page 6 of 16 is reasonably believed that there would at least be hundreds, if not thousands, of class members. 24. The questions of law and fact are common to every member of the Class. The questions include, but are not limited to: a. Was the Defendant s notice of default in violation of the FDCPA because it was false, deceptive or misleading by virtue of the following flaws, considered either individually or in combination: i. Misstating that a defaulted student loan borrower only has 30 days to request an administrative review of the legal enforceability or pastdue status of his or her account when federal law gives him or her 60 days; ii. Failing to identify the school for attendance at which the loan was made when federal law requires such information to be included; iii. Failing to include an interest rate or explain how the costs are calculated, or the authority for collecting them when federal law requires such information to be included; iv. Failing to notify the borrower that the agency would report the default to all nationwide consumer reporting agencies to the detriment of the borrower s credit rating when federal law requires such information to be included; 6

7 CASE 0:12-cv RHK-JSM Document 50 Filed 04/01/13 Page 7 of 16 v. Failing to give an explanation of how to access the agency s records regarding the loan when federal law requires such information to be included; vi. Failing to make clear the opportunities available to the borrower under agency rules to reach an agreement on repayment terms satisfactory to the agency, to prevent the agency from reporting the loan as defaulted to consumer reporting agencies, and to provide accurate deadlines and method for requesting this relief when federal law requires such information to be included; vii. Failing to describe any appeal rights available to the borrower from an adverse decision on administrative review of the loan obligation when federal law requires such information to be included; viii. Failing to describe any right to judicial review of an adverse decision by the agency regarding the legal enforceability or past-due status of the loan obligation when federal law requires such information to be included; and ix. Failing to mention the possibility of the filing of a lawsuit against the borrower by the agency and assignment of the loan to the Secretary for the filing of a lawsuit against the borrower by the federal government when federal law requires such information to be included. 7

8 CASE 0:12-cv RHK-JSM Document 50 Filed 04/01/13 Page 8 of 16 b. If the notice of default was in violation of the FDCPA, what statutory damages should be awarded. 25. The claim of the Plaintiff is typical of the claims of the Class. The letter sent to Plaintiff is clearly a boilerplate letter that is sent to every defaulted student loan borrower. 26. Plaintiff will fairly and adequately protect the interest of the Class. Plaintiff has retained counsel who is competent to pursue this case and Plaintiff does not have any interests that are antagonistic to the interests of the Class. 27. Questions of law and fact common to the members of the Class predominate over any questions that affect any individual class members. In fact, the questions and fact and law are the same for the Plaintiff and all class members. 28. A class action is a superior method of adjudicating this case because it is the most fair and efficient way of resolving this controversy. The illegal conduct is standardized; the class members do not have an interest in individually controlling the prosecution of the case; there is no other case that has been brought by class members; and, litigating the merits of this case as a class action will take no more effort than litigating Plaintiff s individual claim. 29. If this matter is litigated as an individual action, the hundreds or thousands of class members who have been misinformed about their rights under federal law will likely not receive any relief at all. COUNT I Violation of the FDCPA, 15 U.S.C. 1692e 30. Plaintiff incorporates by reference all the preceding paragraphs herein. 8

9 CASE 0:12-cv RHK-JSM Document 50 Filed 04/01/13 Page 9 of Defendant is a debt collector under the FDCPA. 32. Defendant sent Plaintiff a notice in an attempt to collect her student loan debt. 33. Defendant sent the same notice to hundreds or thousands of other consumers who owed a defaulted student loan debt in the year prior to the commencement of this lawsuit. 34. Student loans are debts under the FDCPA. 35. The notice is a communication in an attempt to collect a debt. 36. The notice violates Sections 1692e and 1692e(10) because it employs false representations and deceptive means to collect a debt and to obtain information concerning a consumer. Specifically, the notice is false, deceptive or misleading on the basis of the following misstatements, inclusions and exclusions, considered individually or in combination. The notice: a. Misstates the amount of time a student loan borrower has to request an administrative review of the legal enforceability or past-due status of his or her loan; b. Fails to identify the school for attendance at which the loan was made; c. Does not include an interest rate or explain how the costs are calculated, or the authority for collecting them; d. Does not notify the borrower that the agency will report the default to all nationwide consumer reporting agencies to the detriment of the borrower s credit rating; e. Does not give an explanation of the borrower s opportunity to access records 9

10 CASE 0:12-cv RHK-JSM Document 50 Filed 04/01/13 Page 10 of 16 regarding the loan; f. Fails to make clear the opportunities available to the borrower under agency rules to reach an agreement on repayment terms satisfactory to the agency, to prevent the agency from reporting the loan as defaulted to consumer reporting agencies, and to provide accurate deadlines and method for requesting this relief; g. Does not describe any appeal rights available to the borrower from an adverse decision on administrative review of the loan obligation; h. Does not describe any right to judicial review of an adverse decision by the agency regarding the legal enforceability or past-due status of the loan obligation; and i. Does not mention the possibility of the filing of a lawsuit against the borrower by the agency and assignment of the loan to the Secretary for the filing of a lawsuit against the borrower by the federal government. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court certify this action as a class action, appoint Plaintiff class representative, appoint Plaintiff s counsel as class counsel, and award: I. Plaintiff statutory damages of $1, pursuant to 15 U.S.C. 1692k(a)(2)(A); II. The class, to be divided pro rata, statutory damages of $500,000 or 1% of the net worth of Defendant, whichever is less, pursuant to 16 U.S.C. 1692k(a)(2)(B); III. Costs and reasonable attorneys fees pursuant to 15 U.S.C. 1692k(a)(3); and, 10

11 CASE 0:12-cv RHK-JSM Document 50 Filed 04/01/13 Page 11 of 16 IV. Such other and further relief as the Court may deem just and proper. NICHOLS KASTER, PLLP Dated: April 1, 2013 /s/e. Michelle Drake E. Michelle Drake (# ) Curtis P. Zaun (#266310) Joseph C. Hashmall (#392610) 4600 IDS Center 80 South 8th Street Minneapolis, MN Telephone: (612) Facsimile: (612) ATTORNEYS FOR PLAINTIFF AND THE PROPOSED CLASS 11

12 CASE 0:12-cv RHK-JSM Document 50 Filed 04/01/13 Page 12 of 16 EXHIBIT A

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