| Basquiat 2009-11-19 08:05:18 Unknown |
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK 2467
UNITED STATES OF AMERICA,
09
Plaintiff,
)
)
v.
)
Civil Action No.
)
OXFORD COLLECTION AGENCY, INC., d/b/a Oxford Management Services, a New York corporation, RICHARD PINTO, PETER PINTO,
) ) )
(~SP> ~
IN c~~~S~P~ICF'
U.S. DISTRICT COURT CO.N Y
CHARLES HARRIS, and SALVATORE SPINELLI, ) individually, and d/b/a SALVATORE SPINELLI, ) WfVI1£* 'lJUN 1 0 2009 * ESQ., ATTORNEY-AT-LAW, ) ~I\L. n. J; )
____D_e_fen_d_an_ts·
______+OML'NSON~L~OFFICE
COMPLAINT FOR CIVIL PENALTIES. INJUNCTIVE RELIEF. AND OTHER RELIEF
Plaintiff, the United States ofAmerica, acting upon notification and authorization to the Attorney General by the Federal Trade Commission ("Commission"), for its Complaint alleges as follows:
1. This is an action arising under Sections 5(a), 5(m)(I)(A), 13(b), and 16(a) ofthe Federal Trade Commission Act ("FTC Act"), 15 U.S.C. §§ 45(a), 45(m)(I)(A), 53(b), and 56(a), and the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., to obtain monetary civil penalties, permanent injunction, consumer restitution, disgorgement, and other equitable relief for Defendants' violations ofthe FDCPA and Section 5 ofthe FTC Act.
JURISDICTION AND VENUE
2. This Court has jurisdiction over the matter under 28 U.S.C. §§ 1331, 1337(a), 1345, and 1355, and under 15 U.S.C. §§ 45(m)(1)(A), 53(b), 57b and 16921. This action arises
under 15 U.S.C. § 45(a)(1) and 15 U.S.C. §16921.
3. Venue is proper in the United States District Court for the Eastern District of New York under 28 U.S.C. §§ 1391(b) -(c) and § 1395(a) and 15 U.S.C. § 53(b).
DEFENDANTS
4.
Defendant Oxford Collection Agency, Inc., doing business as Oxford Management Services ("Oxford"), is aNew York corporation with its principal office and place of business located within the Eastern District ofNew York at 135 Maxess Road, Melville, NY 11747. At all times relevant to this Complaint, Defendant Oxford has transacted business in the Eastern District ofNew York.
5.
Defendant Richard Pinto is the Chairman, and, with his wife, Carol, a 31 % shareholder of Oxford. Defendant Richard Pinto plays an active role in the management and/or supervision of Oxford's debt collection activities. Defendant Richard Pinto formulated, directed, participated in, controlled, or had the authority to control, the acts and practices of Oxford, including the acts and practices alleged in this Complaint. At all times relevant to this Complaint, Defendant Richard Pinto has resided or transacted business in the Eastern District of New York.
6.
Defendant Peter Pinto is the President and Chief Executive Officer, and a 30% shareholder of Oxford. Defendant Peter Pinto plays an active role in the management and/or supervision of Oxford's debt collection activities. Defendant Peter Pinto formulated, directed, participated in, controlled, or had the authority to control, the acts and practices of Oxford, including the acts and practices alleged in this Complaint. At all times relevant to this Complaint, Defendant Peter Pinto has resided or transacted business in the Eastern District of New York.
2
7. Defendant Charles Harris is the Executive Vice President, Manager of Training
and Compliance, and a 10% shareholder of Oxford. Defendant Harris formulated, directed, participated in, controlled, or had the authority to control, the acts and practices of Oxford, including the acts and practices alleged in this Complaint. At all times relevant to this Complaint, Defendant Harris has resided or transacted business in the Eastern District ofNew
York.
8.
Defendant Salvatore Spinelli ("Spinelli"), a member of the New York bar, doing business as Salvatore Spinelli, Esq., Attorney-at-Law (the "Spinelli Law Firm"), has acted as an actual or apparent agent of Oxford in connection with the acts or practices set forth in this Complaint. During at least 2004, as the sole owner and manager ofthe Spinelli Law Firm, alone or in concert with others, Spinelli was responsible for a major portion of Oxford's debt collection activity. In addition, since at least 2003, Spinelli has been and is Oxford's General Counsel, and alone or in concert with others, oversaw Oxford collectors' compliance with the FDCPA. At all times material to this Complaint, acting alone or in concert with others, Spinelli has formulated, directed, controlled or had authority to control, or participated in the acts and practices set forth in this Complaint. At all times relevant to this Complaint, Defendant Spinelli has resided or transacted business in the Eastern District ofNew York.
9.
Defendants Oxford, Richard Pinto, Peter Pinto, Charles Harris, and Salvatore Spinelli ("Defendants") are "debt collectors," as defined in Section 803(6) ofthe FDCPA, 15
u.s.c. § 1692a(6).
10. On or about December 20,2002, Oxford and the Spinelli Law Firm entered into a written agreement whereby Oxford supplied collection accounts and its collectors to the Spinelli Law Firm. The Spinelli Law Firm assumed somel'ayroll functions with regard to
3
Oxford collectors, who collected on Oxford's accounts both through the Spinelli Law Finn, and
directly on Oxford's behalf. Oxford also continued to maintain some employee records for these collectors. Using these collectors, the Spinelli Law Finn sent collection letters, and collected debts for Oxford clients during at least the years 2003 and 2004. The Spinelli Law Finn operated out of Oxford's Melville, New York building; shared some or all ofOxford's equipment and supplies; paid debt collectors who had been on Oxford's payroll and who continued to do some collection work for Oxford; and used Oxford officer, Charles Harris, to supervise its debt collectors. Most, if not all, receipts from the Spinelli Law Finn's debt collection activities in 2003 and 2004, less expenses, went to Oxford.
II. In January 2005, debt collectors paid by the Spinelli Law Finn were transferred back to Oxford's payroll, and Spinelli continued as Oxford's General Counsel. As Oxford's General Counsel, Spinelli was responsible for, alone or in concert with others, handling consumer and law enforcement agency complaints and lawsuits against Oxford alleging FDCP A violations, and meeting with Oxford collectors to investigate the allegations against them.
COMMON ENTERPRISE
12. During at least the years 2003 and 2004, defendants Oxford and the Spinelli Law Finn have acted as a common enterprise while engaging in the law violations alleged below. These entities have been commonly controlled by one or more ofthe individual defendants, have shared employees, used common equipment or supplies, operated from the same building, and engaged in a common scheme to collect debts through unlawful practices. Because Oxford and the Spinelli Law Finn have acted as a common enterprise during the time period alleged above, each ofthem is jointly and severally liable for the law violations committed during such time period, including those alleged below. The common enterprise has transacted business in this
4
district, and a substantial part ofthe events or omissions giving rise to the claims asserted herein
have occurred in this district. Individual defendants, Richard Pinto, Peter Pinto, Charles Harris, and Salvatore Spinelli have formulated, directed, controlled or had authority to control, or participated in the acts and practices ofthe common enterprise.
COMMERCE
13. At all times material to this Complaint, Defendants have maintained a substantial course oftrade in the collection of debts, in or affecting commerce, as "commerce" is defined in Section 4 ofthe FTC Act, 15 U.S.C. § 44.
DEFENDANTS' BUSINESS PRACTICES
14.
From its offices in Melville, New York, Palm Beach, Florida, and Scranton, Pennsylvania, Oxford and the Spinelli Law Firm have engaged in consumer debt collection activities in all 50 states. Oxford currently has approximately 3,000,000 active accounts.
15.
On numerous occasions, Oxford or Spinelli Law Firm collectors have threatened or implied that Oxford or the Spinelli Law Firm would garnish consumers' wages or initiate lawsuits against them if they failed to pay Oxford or the Spinelli Law Firm. These threats were false because, in almost every instance, Oxford and the Spinelli Law Firm did not initiate lawsuits against consumers or garnish consumers' wages.
16.
On numerous occasions, Oxford or Spinelli Law Firm collectors have made additional threats, including that criminal actions would be brought against consumers or that consumers would be arrested. These threats were false because Oxford and the Spinelli Law Firm had no intent to have consumers prosecuted or arrested.
17.
On numerous occasions, Oxford or Spinelli Law Firm collectors have debited payments from consumers' bank accounts without the consumers' prior authorization for such
5
payments. Similarly, on numerous occasions, Oxford or Spinelli Law Firm collectors have
charged more than the agreed-upon amount to consumers' credit cards.
18.
On numerous occasions, Oxford or Spinelli Law Firm collectors have called consumers before 8:00 AM or after 9:00 PM, even though the collectors knew or should have known that it was inconvenient for consumers to receive calls at these times.
19.
On numerous occasions, Oxford or Spinelli Law Firm collectors have called consumers at their place ofemployment, even though the collectors knew or should have known that it was inconvenient for consumers to receive calls there.
20.
On numerous occasions, Oxford or Spinelli Law Firm collectors have disclosed the existence ofdebts to third parties, such as the consumers' parents, children, employers, coworkers, and neighbors.
21.
On numerous occasions, Oxford or Spinelli Law Firm collectors have continued to call a consumer even after receiving a written demand from the consumer to cease communications.
22.
On numerous occasions, Oxford or Spinelli Law Firm collectors have used harassing and abusive tactics, such as calling consumers multiple times a day, or calling consumers right back after the consumers have hung up the phone. In addition, some Oxford or Spinelli Law firm collectors have used abusive language, including profanity, when talking to consumers.
23.
The debt collection practices of Oxford and the Spinelli Law Firm have resulted in consumers filing hundreds ofcomplaints with the Federal Trade Commission, the Metropolitan New York Better Business Bureau, various state attorneys general, and Oxford and the Spinelli Law Firm themselves. Many ofthese complaints have alleged significant FTC Act
6
and/or FDCPA violations.
24. Oxford and the Spinelli Law Firm frequently failed to address the serious law violations alleged in the consumer complaints received by their supervisors or managers. Oxford and the Spinelli Law Firm received consumer complaints alleging egregious violations ofthe FTC Act and/or the FDCPA, but frequently dismissed those complaints without significant investigation or disciplinary action. Even in the face of substantial evidence that violations occurred, the collectors involved often went unpunished or merely received a warning.
VIOLATIONS OF SECTION 5 OF THE FTC ACT
25. Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), prohibits "unfair or deceptive acts or practices in or affecting commerce." Misrepresentations ofmaterial fact constitute deceptive acts or practices prohibited by the FTC Act.
COUNT I
26. On numerous occasions, in connection with the collection of debts, Defendants
have represented to consumers, expressly or by implication, that: a) Nonpayment of a debt would result in garnishment of a consumer's wages; b) Nonpayment ofa debt would result in a consumer's arrest; and c) Oxford, the Spinelli Law Firm, or the creditor they represented intended to
take legal action against a consumer.
27. In truth and in fact, on numerous ofthose occasions: a) Nonpayment of a debt did not result in garnishment of a consumer's
wages; b) Nonpayment of a debt did not result in a consumer's arrest; and c) Neither Oxford, nor the Spinelli Law Firm, nor the creditor they
7
represented intended to take legal action against a consumer.
28.
Therefore, the representations set forth in Paragraph 26 were and are false or misleading and constitute deceptive acts or practices in violation of Section 5(a) ofthe FTC Act, 15 U.S.C. § 45(a).
COUNT II
29.
On numerous occasions, in connection with the collection of debts, Defendants ~ave debited consumers' bank accounts or charged consumers' credit cards without obtaining the consumers' express informed consent.
30.
Defendants' practice of debiting consumers' bank accounts or charging consumers' credit cards without obtaining the consumers' express informed consent causes or is likely to cause substantial injury to consumers that is not outweighed by countervailing benefits to consumers or competition and that is not reasonably avoidable by the consumers.
31.
Therefore Defendants' practice as alleged in Paragraph 29 is unfair and in violation of Section 5(a) ofthe FTC Act, 15 U.S.C. § 45(a).
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
32. In 1977, Congress passed the FDCPA, 15 U.S.C. § 1692 et seq., which became effective on March 20, 1978, and has been in force since that date. Section 814 ofthe FDCP A, 15 U.S.C. § 16921, specifically empowers the Commission to enforce the FDCPA. Under its provisions, for purpose ofthe exercise by the Commission ofits functions and powers under the FTC Act, a violation ofthe FDCPA is deemed an unfair or deceptive act or practice in violation ofthe FTC Act. Further, the Commission is authorized to use all ofits functions and powers under the FTC Act to enforce compliance with the FDCP A by any person, irrespective of whether that person is engaged in commerce or meets any other jurisdictional tests set by the
8
FTC Act. The authority of the Commission in this regard includes the power to enforce the
provisions ofthe FDCP A in the same manner as ifthe violations were violations of a Commission trade regulation rule.
33. The term "consumer," as used in this Complaint, means any natural person obligated or allegedly obligated to pay any debt, as "debt" is defined in Section 803(5) ofthe FDCPA, 15 U.S.C. § 1692a(5).
COUNT III
34. On numerous occasions, in connection with the collection of debts, without the prior consent ofthe consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, Defendants have communicated with a consumer at a time or place that Defendants knew or should have known to be inconvenient to the consumer, including, but not limited to, communicating with the consumer before 8:00 A.M. and after 9:00 P.M. at the consumer's location, and communicating with the consumer at the consumer's place of employment when Defendants knew or should have known that it was inconvenient for the consumer to receive such communications, in violation of Section 805(a)(I) ofthe FDCPA, 15
U.S.C. § 1692c(a)(l). COUNT IV
35. On numerous occasions, in connection with the collection ofdebts, Defendants have communicated with third parties, including parents, children, neighbors, employers, and coworkers, for purposes other than acquiring location information about a consumer, without the prior consent ofthe consumer given directly to Defendants or the express permission of a court ofcompetent jurisdiction, and when not reasonably necessary to effectuate a post-judgment judicial remedy, in violation of Section 805(b) ofthe FDCPA, 15 U.S.C. I 692c(b).
9
COUNT V
36.
On numerous occasions, in connection with the collection of debts, Defendants have communicated with a consumer after receiving written demand from the consumer to cease communications, in violation of Section 805(c) ofthe FDCPA, 15 U.S.C. § 1692c(c).
COUNT VI
37.
On numerous occasions, in connection with the collection of debts, Defendants have engaged in conduct the natural consequence of which was to harass, oppress, or abuse a person, in violation of Section 806 ofthe FDCPA, 15 U.S.C. § 1692d, including, but not limited to, the following:
a) Defendants have used obscene or profane language, or language the natural consequence of which is to abuse the hearer, in violation of Section 806(2) ofthe FDCPA, 15 U.S.C. § 1692d(2); and
b) Defendants have caused a telephone to ring, or have engaged a person in telephone conversations, repeatedly or continuously, with intent to annoy, abuse, or harass the person at the called number, in violation of Section 806(5) ofthe FDCPA, 15 U.S.C. § 1692d(5).
COUNT VII
38. On numerous occasions, in connection with the collection ofdebts, Defendants have used false, deceptive, or misleading representations or means, in violation of Section 807 of the FDCPA, 15 U.S.C. § 1692e, including, but not limited to, the following:
a) Defendants have falsely represented or implied that nonpayment of a debt will result in the arrest or imprisonment of a person or the garnishment of 10
a person's wages, when such action is not lawful or when neither Oxford,
nor the Spinelli Law Firm, nor the creditor they represented had the
intention oftaking such action, in violation ofSection 807(4) of the
FDCPA, 15 U.S.C. § 1692e(4); or
b) Defendants have threatened to take actions that cannot legally be taken or that are not intended to be taken, in violation ofSection 807(5) ofthe FDCPA, 15 U.S.C. § 1692e(5).
COUNT VIII
39. On numerous occasions, in connection with the collection ofdebts, Defendants have used unfair or unconscionable means to collect or attempt to collect a debt, including but not limited to the use of information provided by a consumer for the purpose ofwithdrawing funds from the consumer's bank account or imposing charges to the consumer's credit card without obtaining the consumer's express informed consent, in violation ofSection 808 ofthe FDCPA, 15 U.S.C. § I 692f.
INJUNCTION FOR VIOLATIONS OF THE FTC ACT AND THE FDCPA
40. Under Section 13(b) ofthe FTC Act, 15 U.S.C. § 53(b), this Court is authorized to issue a permanent injunction to ensure that Defendants will not continue to violate the FTC Act and the FDCP A.
EOUITABLE RELIEF FOR VIOLATIONS OF THE FTC ACT AND THE FDCPA
41. Under Section 13(b) ofthe FTC Act, 15 U.S.C. § 53(b), this Court is authorized to issue all equitable and ancillary relief as it may deem appropriate in the enforcement ofthe FTC Act and the FDCP A, including the ability to order rescission or reformation of contracts, restitution, the refund ofmonies paid, and the disgorgement of ill-gotten monies.
11
CIVIL PENALTIES FOR VIOLATIONS OF THE FDCPA
42.
Defendants have violated the FDCPA as described above, with actual knowledge or knowledge fairly implied on the basis ofobjective circumstances, as set forth in Section 5(m)(I)(A) of the FTC Act, IS U.S.C. § 45(m)(I)(A).
43.
Each instance within five (5) years preceding the filing ofthis Complaint, in which Defendants have failed to comply with the FDCP A in one or more ofthe ways described above, constitutes a separate violation for which Plaintiff seeks a monetary civil penalty.
44.
Section 5(m)(I)(A) ofthe FTC Act, 15 U.S.C. § 45(m)(I)(A), as modified by Section 4 of the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, as amended, and as implemented by 16 C.F.R. § 1.98(d) (2007) authorizes this Court to award monetary civil penalties ofnot more than $11,000 for each violation of the FDCP A.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff pursuant to 15 U.S.C. §§ 45(m)(l)(A), 53(b), 1692/, and the Court's own equitable powers, respectfully requests that the Court:
1.
Enter judgment against Defendants and in favor of Plaintiff for each law violation alleged in this Complaint;
2.
Enter a permanent injunction to prevent future violations ofthe FTC Act and the FDCP A by Defendants;
3.
Award such relief as the Court finds necessary to redress injury to consumers resulting from Defendants' violations of the FTC Act and the FDCPA, including, but not limited to, rescission or reformation of contracts, restitution, the refund of monies paid, and the disgorgement of ill-gotten monies;
4.
Award Plaintiff monetary civil penalties against Defendants for each violation of
the FDCP A occurring within five (5) years preceding the filing ofthis Complaint; 12
and
5. Award Plaintiff the costs ofbringing this action, as well as such other and additional relief as the Court may determine to be just and proper.
DATED: JUNE 10, )..009
OF COUNSEL:
LEONARD 1. GORDON Regional Director
ROBIN E. EICHEN CAROLE A. PAYNTER Attorneys Federal Trade Commission Northeast Region One Bowling Green, Suite 318 New York, NY 10004 FOR THE UNITED STATES OF AMERICA:
ToNY wEiST'
Assistant Attorney General
Civil Division
U.S. Department ofJustice
BENTON J. CAMPBELL
United States Attorney
By:~~{}1u~/!J
THOMAS McFARLAND Assistant United States Attorney
EUGENE M. THIROLF Director Office ofConsumer Litigation
/J..ed-eJ C. K~) 77L~9GERALD
C. KELL Senior Trial Counsel Office ofConsumer Litigation Civil Division
U.S. Department ofJustice
Washington, D.C. 20530
(202) 307-0486
gerald.kell@usdoj.gov
13