Case 3:14-cv ST Document 126 Filed 06/04/15 Page 1 of 15

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1 Case 3:14-cv ST Document 126 Filed 06/04/15 Page 1 of 15 Beth E. Terrell, Admitted Pro Hac Vice bterrell@tmdwlaw.com Michael D. Daudt, Admitted Pro Hac Vice mdaudt@tmdwlaw.com Jennifer Rust Murray, OSB # jmurray@tmdwlaw.com Mary B. Reiten mreiten@tmdwlaw.com TERRELL MARSHALL DAUDT & WILLIE PLLC 936 North 34th Street, Suite 300 Seattle, Washington Telephone: (206) Facsimile: (206) [Additional Counsel Appear on Signature Page] Attorneys for Plaintiffs KELLY OTT, and BENJAMIN GESLER, on behalf of themselves and all others similarly situated, NANCY LUEBBEN, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION NO. 3:14-cv ST v. Plaintiffs, FOURTH AMENDED CLASS ACTION ALLEGATION COMPLAINT FOR DAMAGES MORTGAGE INVESTORS CORPORATION OF OHIO, INC., an Ohio corporation, also doing business as MORTGAGE INVESTORS CORPORATION, AMERIGROUP MORTGAGE CORPORATION, VETERANS INFORMATION DEPARTMENT and VETERANS HOME LOANS, CLASS ACTION DEMAND FOR JURY TRIAL Magistrate Judge Janice M. Stewart Defendant.

2 Case 3:14-cv ST Document 126 Filed 06/04/15 Page 2 of 15 Plaintiffs Kelly Ott, Nancy Luebben, and Benjamin Gesler (hereinafter referred to as Plaintiffs ), by their undersigned counsel, for this class action complaint against Defendant Mortgage Investors Corporation of Ohio, Inc. doing business as Mortgage Investors Corporation, Amerigroup Mortgage Corporation, Veterans Information Department, and Veterans Home Loans ( MIC ) allege as follows: I. INTRODUCTION 1. Nature of Action. Plaintiffs Kelly Ott and Benjamin Gesler individually and as class representatives for all others similarly situated, and Plaintiff Nancy Luebben individually bring this action against MIC for violations of the Telephone Consumer Protection Act, 47 U.S.C. 227 et seq. ( TCPA ). II. PARTIES 2. Plaintiff Kelly Ott. Plaintiff Kelly Ott ( Plaintiff Ott ) is a citizen of Oregon, residing in Multnomah County, Oregon. 3. Plaintiff Nancy Luebben. Plaintiff Nancy Luebben ( Plaintiff Luebben ) is a citizen of Oregon, residing in Linn County, Oregon. 4. Plaintiff Benjamin Gesler. Plaintiff Benjamin Gesler ( Plaintiff Gesler ) is a citizen of Oregon, residing in Multnomah County, Oregon. 5. Defendant MIC. Defendant MIC is an Ohio corporation with its principal place of business in St. Petersburg, Florida, and conducts business throughout the United States, including in Multnomah County, Oregon. At all times relevant to this Complaint, Defendant MIC transacted business under the names AmeriGroup Mortgage Corporation, Veterans Information Department, Mortgage Investors Corporation, and Veteran Home Loans. III. JURISDICTION AND VENUE 6. Subject Matter Jurisdiction. This Court has subject matter jurisdiction over Plaintiffs TCPA claims pursuant to 28 U.S.C because Plaintiffs TCPA claims arise under the laws of the United States, specifically 47 U.S.C DAMAGES - 1

3 Case 3:14-cv ST Document 126 Filed 06/04/15 Page 3 of Personal Jurisdiction. This Court has personal jurisdiction over MIC because it has submitted to Oregon jurisdiction by registering with the Secretary of State to do business in the State of Oregon, and the wrongful acts alleged in this Complaint were committed in Oregon. 8. Venue. Venue is proper in this District pursuant to 28 U.S.C. 1391(b)(2) in that a substantial part of the events or omissions given rise to Plaintiffs claims occurred in this District. IV. THE TELEPHONE CONSUMER PROTECTION ACT OF 1991, 47 U.S.C In 1991, Congress enacted the TCPA in response to a growing number of consumer complaints regarding certain telemarketing practices. 10. The TCPA makes it unlawful to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice to any telephone number assigned to a cellular telephone service. See 47 U.S.C. 227(b)(1)(A)(iii). The TCPA provides a private cause of action to persons who receive calls in violation of 47 U.S.C. 227(b)(1)(A). See 47 U.S.C. 227(b)(3). 11. The TCPA also makes it unlawful for any entity to make more than one call in a 12-month period to any number that is registered with the National Do-Not-Call Registry or that entity s company specific do-not-call list. See 47 U.S.C. 227(c)(5); 47 C.F.R (c)(2) & (d). The TCPA provides a private cause of action to persons receiving calls in violation of 47 U.S.C. 227(c)(5). V. FACTUAL ALLEGATIONS A. Factual Allegations Regarding Defendant MIC 12. MIC advertises itself on its webpage, as specialists in our industry, ranking MIC among the nation s leading VA lenders. DAMAGES - 2

4 Case 3:14-cv ST Document 126 Filed 06/04/15 Page 4 of Part of MIC s strategy for increasing the volume of its customers involved the use of an automatic telephone dialing system ( ATDS ), also known as a predictive dialer. 14. In a Complaint for Permanent Injunction, Civil Penalties, and Other Relief filed by the United States of America, No. 8:13-cv-1647-T-23TGW in the United States District Court, Middle District of Florida, Tampa Division, a copy of which is attached hereto as Exhibit A, it was alleged that MIC claims to be the nation s largest U.S. Department of Veterans Affairs home loan refinancer and provides home loan refinancing in 42 states. MIC also claims to have served more than 300,000 veterans and to have refinanced more than $30 billion in VA homes loans during the past 15 years. 15. Said Complaint further alleged that, from its offices in St. Petersburg and Tampa, Florida, MIC promotes VA home loan refinancing services to current and former U.S. military service members throughout the United States, and it promotes its VA home loan refinancing through unsolicited outbound telephone calls to consumers. 16. MIC employed hundreds of telemarketers who cold-called consumers and, using written scripts, encouraged consumers to schedule in-home sales appointments with companyaffiliated loan officers. 17. Consumers reported that they receive dozens of unwanted calls from MIC and that the company repeatedly failed to remove consumer s telephone numbers from its call list upon demand. 18. According to company training materials, MIC s telemarketers were not authorized to remove consumers telephone numbers from company call lists. Furthermore, MIC transferred irate customers, who had demanded that the company stop calling them, to a manager who would then try to convince the consumer to schedule an appointment. MIC s telemarketers were trained to attempt to turn around consumers who had requested that the company stop calling, and MIC reprimanded telemarketers who failed to attempt to turn around such calls. DAMAGES - 3

5 Case 3:14-cv ST Document 126 Filed 06/04/15 Page 5 of MIC placed more than 5.4 million calls to numbers listed on the National Do- Not-Call Registry between February 2, 2009 and July 30, Thousands of consumers have filed complaints with the Federal Trade Commission and other agencies regarding the unwanted and harassing telemarketing calls by MIC. 21. MIC also made calls using an ATDS to cellular telephones whose owners did not provide express prior consent to receive such calls, including Plaintiff Gesler. 22. Consumers continued to receive calls despite requesting that MIC stop calling, until MIC ceased telemarketing operations in October Many of the recipients of these calls did not consent to receive such telephone calls. B. Factual Allegations Regarding Plaintiff Ott 24. Plaintiff Ott is a veteran of the United States military. 25. Plaintiff Ott registered his residential telephone number on the National Do-Not- Call Registry on October 7, MIC initiated calls to Plaintiff Ott after he had registered his residential telephone number on the National Do-Not-Call Registry. 27. Plaintiff Ott also directly requested that MIC stop calling on several occasions, including on January 1, Plaintiff Ott also received telemarketing calls from MIC after his requests that MIC stop calling. 29. Plaintiff Ott was not interested in applying for a new home loan or refinancing his existing home loan during Plaintiff Ott is unaware of how MIC may have obtained his contact information. 31. Plaintiff Ott did not contact MIC or provide his contact information to MIC. DAMAGES - 4

6 Case 3:14-cv ST Document 126 Filed 06/04/15 Page 6 of 15 C. Factual Allegations Regarding Plaintiff Luebben 32. Plaintiff Luebben is a veteran of the United States military. 33. Plaintiff Luebben received many telephone solicitation calls from MIC during Plaintiff Luebben directly requested that MIC stop calling on several occasions, including on or around February 22, 2010 and April 30, Nonetheless, MIC continued to initiate calls for telemarketing purposes to Plaintiff Luebben. 36. Plaintiff Luebben was not interested in applying for a new home loan or refinancing her existing home loan during Plaintiff Luebben is unaware of how MIC may have obtained her contact information. 38. Plaintiff Luebben did not contact MIC or provide her contact information to MIC. D. Factual Allegations Regarding Plaintiff Gesler 39. Plaintiff Gesler is not a veteran of the United States military. 40. Plaintiff Gesler received many telephone solicitation calls from MIC during on his cellular telephone. 41. Plaintiff Gesler directly requested that MIC stop calling on several occasions, including on or around March 4, Nonetheless, MIC continued to initiate calls for telemarketing purposes to Plaintiff Gesler. 43. Plaintiff Gesler was not interested in applying for a new home loan or refinancing an existing home loan during Plaintiff Gesler is unaware of how MIC may have obtained his contact information. 45. Plaintiff Gesler did not contact MIC or provide his contact information to MIC. DAMAGES - 5

7 Case 3:14-cv ST Document 126 Filed 06/04/15 Page 7 of On information and belief, MIC initiated calls to Plaintiff Gesler using ATDS equipment and software that had the capacity to store or produce telephone numbers to be called and which included auto-dialers and predictive dialers. VI. CLASS ACTION ALLEGATIONS 47. Class Definition. Pursuant to CR 23(b)(2) and (b)(3), Plaintiffs bring this case as a class action on behalf of National Classes as defined as follows: Cell Phone Class: All persons in the United States to whom: (a) Defendant made one or more non-emergency telephone calls; (b) to their cellular telephone number; (c) through the use of an automatic telephone dialing system; and (d) at any time in the period that begins four years before the date of filing this Complaint to trial. National Do-Not-Call Class: All persons in the United States who: (a) received more than one telephone solicitation call, initiated by Defendant; (b) in a 12-month period; (c) on their cellular telephone line or residential telephone line; (d) whose cellular or residential telephone line number(s) appeared on the National Do-Not-Call registry more than thirty days before the calls; (e) with whom Defendant did not have an established business relationship; and (f) at any time in the period that begins four years before the date of filing this Complaint to trial. Excluded from the Classes are MIC, any entity in which MIC has a controlling interest or that has a controlling interest in MIC, and MIC s legal representatives, assignees, and successors. Also excluded are the judge to whom this case is assigned and any member of the judge s immediate family. 48. Numerosity. The Classes are each so numerous that joinder of all members is impracticable. On information and belief, the Classes each have more than 1,000 members. Moreover, the disposition of the claims of the Classes in a single action will provide substantial benefits to all parties and the Court. 49. Commonality. There are numerous questions of law and fact common to Plaintiffs and members of the Classes. These common questions of law and fact include, but are not limited to, the following: DAMAGES - 6

8 Case 3:14-cv ST Document 126 Filed 06/04/15 Page 8 of 15 a. As to Plaintiff Gesler and the Cell Phone Class, whether MIC violated 47 U.S.C. 227(b)(1)(A) by making any call, except for emergency purposes, to a cellular telephone number using an ATDS; b. As to Plaintiff Gesler and the Cell Phone Class, whether MIC knowingly and/or willfully violated 47 U.S.C. 227(b)(1)(A) by making any call, except for emergency purposes, to a cellular telephone number using an ATDS, thus entitling Plaintiff Gesler and the Cell Phone Class to treble damages; c. As to Plaintiff Ott and the National Do-Not-Call Class, whether MIC violated 47 C.F.R (c) by initiating more than one telephone solicitation within a 12- month period to Plaintiff Ott and members of the National Do-Not-Call Class who have registered their telephone numbers with the National Do-Not-Call Registry; d. As to Plaintiff Ott and the National Do-Not-Call Class, whether MIC knowingly and/or willfully violated 47 C.F.R (c) by initiating more than one telephone solicitation within a 12-month period to Plaintiff Ott and members of the National Do-Not-Call Class who have registered their telephone numbers with the National Do-Not-Call Registry, thus entitling Plaintiff Ott and the National Do-Not-Call Class to treble damages; e. Whether MIC is liable for ATDS-generated calls to cellular numbers. 50. Typicality. Plaintiffs claims are typical of the claims of the Classes. Plaintiffs claims, like the claims of Classes arise out of the same common course of conduct by MIC and are based on the same legal and remedial theories. 51. Adequacy. Plaintiffs will fairly and adequately protect the interests of the Classes. Plaintiffs have retained competent and capable attorneys with significant experience in complex and class action litigation, including consumer class actions and TCPA class actions. Plaintiffs and their counsel are committed to prosecuting this action vigorously on behalf of the Classes and have the financial resources to do so. Neither Plaintiffs nor their counsel have interests that are contrary to or that conflict with those of the proposed Classes. DAMAGES - 7

9 Case 3:14-cv ST Document 126 Filed 06/04/15 Page 9 of Predominance. MIC has engaged in a common course of conduct toward Plaintiffs and members of the Classes. The common issues arising from this conduct that affect Plaintiffs and members of the Classes predominate over any individual issues. Adjudication of these common issues in a single action has important and desirable advantages of judicial economy. 53. Superiority. A class action is the superior method for the fair and efficient adjudication of this controversy. Classwide relief is essential to compel MIC to comply with the TCPA. The interest of individual members of the Classes in individually controlling the prosecution of separate claims against MIC is small because the damages in an individual action for violation of the TCPA are small. Class treatment is superior to multiple individual suits or piecemeal litigation because it conserves judicial resources, promotes consistency and efficiency of adjudication, provides a forum for small claimants, and deters illegal activities. There will be no significant difficulty in the management of this case as a class action. VII. FIRST CLAIM FOR RELIEF (Violation of the Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(A) Cellular Telephone Calls Cell Phone Class) 54. Plaintiffs reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 55. The foregoing acts and omissions of MIC constitute numerous and multiple violations of the TCPA, 47 U.S.C. 227(b)(1)(A), by making calls, except for emergency purposes, to the cellular telephone numbers of Plaintiff Gesler and members of the Cell Phone Class using an ATDS. 56. As a result of MIC s violations of the TCPA, 47 U.S.C. 227(b)(1)(A), Plaintiff Gesler and members of the Cell Phone Class presumptively are entitled to an award of $500 in damages for each and every call to their cellular telephone numbers using an ATDS, pursuant to 47 U.S.C. 227(b)(3)(B). DAMAGES - 8

10 Case 3:14-cv ST Document 126 Filed 06/04/15 Page 10 of 15 VIII. SECOND CLAIM FOR RELIEF (Knowing and/or Willful Violations of the Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(A) Cellular Telephone Calls Cell Phone Class) 57. Plaintiffs reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 58. The foregoing acts and omissions of MIC constitute numerous and multiple knowing and/or willful violations of the TCPA, 47 U.S.C. 227(b)(1)(A), by making calls, except for emergency purposes, to the cellular telephone numbers of Plaintiff Gesler and members of the Cell Phone Class using an ATDS. 59. As a result of MIC s knowing and/or willful violations of the TCPA, 47 U.S.C. 227(b)(1)(A), Plaintiff Gesler and members of the Cell Phone Class are entitled to treble damages of up to $1,500 for each and every call to their cellular telephone numbers using an ATDS, pursuant to 47 U.S.C. 227(b)(3). IX. THIRD CLAIM FOR RELIEF (Violations of 47 C.F.R (d) & 47 U.S.C. 227(c)(5) Internal Do-Not-Call List) 60. Plaintiffs reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 61. The foregoing acts and omissions of constitute numerous and multiple violations of 47 C.F.R (d), by initiating any call for telemarketing purposes to Plaintiffs Luebben and Gesler without following procedures for maintaining a list of persons who request not to receive telemarketing calls ( internal do-not-call list ). This includes MIC s failure to properly record do-not-call requests, failure to maintain a record of do-not-call requests, and failure to honor do-not-call requests. 62. As a result of violations of 47 C.F.R (d), Plaintiffs Luebben and Gesler are entitled to an award of $500 in statutory damages for each and every call in violation of the internal do-not-call list regulation, pursuant to 47 U.S.C. 227(c)(5)(B). DAMAGES - 9

11 Case 3:14-cv ST Document 126 Filed 06/04/15 Page 11 of 15 X. FOURTH CLAIM FOR RELIEF (Knowing and/or Willful Violations of 47 C.F.R (d) & 47 U.S.C. 227(c)(5) Internal Do-Not-Call List) 63. Plaintiffs reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 64. The foregoing acts and omissions of MIC constitute numerous and multiple knowing and/or willful violations of 47 C.F.R (d), by initiating any call for telemarketing purposes to Plaintiffs Luebben and Gesler without following procedures for maintaining a list of persons who request not to receive telemarketing calls. This includes MIC s failure to properly record do-not-call requests, failure to maintain a record of do-not-call requests, and failure to honor do-not-call requests. 65. As a result of MIC s knowing and/or willful violations of 47 C.F.R (d), Plaintiffs Luebben and Gesler are entitled to an award of treble damages of up to $1,500 for each and every call in violation of the internal do-not-call list regulation, pursuant to 47 U.S.C. 227(c)(5)(B). XI. XI. FIFTH CLAIM FOR RELIEF (Violations of 47 C.F.R (c) & 47 U.S.C. 227(c)(5) National Do-Not-Call Registry National Do-Not-Call Class) 66. Plaintiffs reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 67. The foregoing acts and omissions of MIC constitute numerous and multiple violations of 47 C.F.R (c), by initiating more than one telephone solicitation within a 12-month period to Plaintiff Ott and members of the National Do-Not-Call Class who have registered their telephone numbers with the National Do-Not-Call Registry. 68. As a result of MIC s violations of 47 C.F.R (c), Plaintiff Ott and members of the National Do-Not-Call Class are entitled to an award of $500 in statutory damages for each and every call initiated to them, after registering their telephone numbers with the National Do-Not-Call Registry, pursuant to 47 U.S.C. 227(c)(5)(B). DAMAGES - 10

12 Case 3:14-cv ST Document 126 Filed 06/04/15 Page 12 of 15 XII. SIXTH CLAIM FOR RELIEF (Knowing and/or Willful Violations of 47 C.F.R (c) & 47 U.S.C. 227(c)(5) National Do-Not-Call Registry National Do-Not-Call Class) 69. Plaintiffs reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 70. The foregoing acts and omissions of MIC constitute numerous and multiple knowing and/or willful violations of 47 C.F.R (c), by initiating more than one telephone solicitation within a 12-month period to Plaintiff Ott and members of the National Do-Not-Call Class who have registered their telephone numbers with the National Do-Not-Call Registry. 71. As a result of MIC s knowing and/or willful violations of 47 C.F.R (c), Plaintiff Ott and members of the National Do-Not-Call Class are entitled to an award of treble damages of up to $1,500 for each and every call made to them, after registering their telephone numbers with the National Do-Not-Call Registry, in violation of 47 U.S.C. 227(c)(5)(B). XIII. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on their own behalf and on behalf of the members of the Classes, pray for judgment against MIC as follows: A. Certification of the proposed Classes; B. Appointment of Plaintiff Ott as representative of the National Do-Not-Call Class; C. Appointment of Plaintiff Gesler as representative of the Cell Phone Class; D. Appointment of the undersigned counsel as counsel for the Classes; E. A declaration that MIC and/or its affiliates, agents, and/or other related entities actions complained of herein violate the TCPA; F. An award to Plaintiffs and the Classes of damages, as allowed by law; DAMAGES - 11

13 Case 3:14-cv ST Document 126 Filed 06/04/15 Page 13 of 15 G. An award to Plaintiffs and the Classes of attorneys fees and costs, as allowed by law and/or equity; and and proper. H. Leave to amend this Complaint to conform to the evidence presented at trial; I. Orders granting such other and further relief as the Court deems necessary, just, I. XIV. DEMAND FOR JURY Plaintiffs demand a trial by jury for all issues so triable. RESPECTFULLY SUBMITTED AND DATED this 4th day of June, TERRELL MARSHALL DAUDT & WILLIE PLLC By: /s/ Jennifer Rust Murray, OSB # Beth E. Terrell, Admitted Pro Hac Vice bterrell@tmdwlaw.com Michael D. Daudt, Admitted Pro Hac Vice mdaudt@tmdwlaw.com Jennifer Rust Murray, OSB # jmurray@tmdwlaw.com Mary B. Reiten mreiten@tmdwlaw.com Blythe H. Chandler, Admitted Pro Hac Vice bchandler@tmdwlaw.com Samuel J. Strauss, Admitted Pro Hac Vice sstrauss@tmdwlaw.com 936 North 34th Street, Suite 300 Seattle, Washington Telephone: (206) Facsimile: (206) Rob Williamson, Admitted Pro Hac Vice roblin@williamslaw.com Kim Williams kim@williamslaw.com WILLIAMSON & WILLIAMS 2239 West Viewmont Way West. Seattle, Washington Telephone: (206) DAMAGES - 12

14 Case 3:14-cv ST Document 126 Filed 06/04/15 Page 14 of 15 Michael J. Estok, OSB # LINDSAY HART, LLP 1300 SW Fifth Avenue, Suite 3400 Portland, Oregon Telephone: (503) Facsimile: (503) Attorneys for Plaintiffs DAMAGES - 13

15 Case 3:14-cv ST Document 126 Filed 06/04/15 Page 15 of 15 CERTIFICATE OF SERVICE I, Jennifer Rust Murray, hereby certify that on June 4, 2015, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Stellman Keehnel, OSB No stellman.keehnel@dlapiper.com Nicole M. Tadano, Admitted Pro Hac Vice nicole.tadano@dlapiper.com DLA PIPER LLP (US) 701 Fifth Avenue, Suite 7000 Seattle, Washington Telephone: (206) Facsimile: (206) Lesli Esposito, Admitted Pro Hac Vice lesli.esposito@dlapiper.com John Huh, Admitted Pro Hac Vice john.huh@dlapiper.com DLA PIPER US LLP (PA) One Liberty Place, Suite Market Street Philadelphia, Pennsylvania Telephone: (215) Facsimile: (215) Attorneys for Defendant DATED this 4th day of June, TERRELL MARSHALL DAUDT & WILLIE PLLC By: /s/ Jennifer Rust Murray, OSB # Jennifer Rust Murray, OSB # jmurray@tmdwlaw.com 936 North 34th Street, Suite 300 Seattle, Washington Telephone: (206) Facsimile: (206) Attorneys for Plaintiffs DAMAGES - 14