FDCPA Violation Complaint - North Carolina

COMPLAINT FOR VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT, THE NORTH CAROLINA UNFAIR AND DECEPTIVE TRADE PRACTICES ACT, AND THE NORTH CAROLINA COLLECTION AGENCY ACT

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Parties
4. Jurisdiction and Venue
5. Factual Allegations
6. Count I — Violations of the FDCPA, 15 U.S.C. §§ 1692 et seq.
7. Count II — Violations of the N.C. Collection Agency Act, N.C. Gen. Stat. §§ 58-70-90 et seq.
8. Count III — Violations of the N.C. Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-1.1
9. Damages
10. Prayer for Relief
11. Demand for Trial by Jury
12. Signature and Service Blocks
13. Certificate of Service
14. North Carolina Practice Notes
15. Sources and References

1. CAPTION

FEDERAL CAPTION (delete if filing in state court)

UNITED STATES DISTRICT COURT

[EASTERN / MIDDLE / WESTERN] DISTRICT OF NORTH CAROLINA

[__________________ DIVISION]

CIVIL ACTION NO. [________________________________]

STATE CAPTION (delete if filing in federal court)

STATE OF NORTH CAROLINA

[COUNTY] COUNTY

IN THE GENERAL COURT OF JUSTICE

[SUPERIOR / DISTRICT] COURT DIVISION

FILE NO. [________________________________]

COMPLAINT AND DEMAND FOR JURY TRIAL

2. INTRODUCTION

2.1. This is a consumer-protection action arising out of Defendants' abusive, deceptive, and unfair debt-collection practices in violation of (a) the federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p ("FDCPA"); (b) the North Carolina Collection Agency Act, N.C. Gen. Stat. §§ 58-70-90 through 58-70-130 ("NCCAA"); and (c) the North Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-1.1 et seq. ("UDTPA").

2.2. Plaintiff seeks actual damages, statutory damages, treble damages on those damages proximately caused by Defendants' unfair and deceptive acts, statutory penalties under § 58-70-130, costs, and reasonable attorney fees.

3. PARTIES

3.1. Plaintiff [PLAINTIFF NAME] ("Plaintiff") is a natural person, citizen, and resident of [COUNTY] County, North Carolina, and is a "consumer" within the meaning of 15 U.S.C. § 1692a(3) and N.C. Gen. Stat. § 58-70-90(1).

3.2. Defendant [COLLECTION AGENCY NAME] ("Defendant Collector") is a [STATE] [corporation / LLC / sole proprietorship] with its principal place of business at [ADDRESS]. Defendant Collector regularly collects or attempts to collect consumer debts owed or due to another and is a "debt collector" within the meaning of 15 U.S.C. § 1692a(6) and a "collection agency" within the meaning of N.C. Gen. Stat. § 58-70-15.

3.3. Defendant [INDIVIDUAL COLLECTOR NAME, if known] is a natural person who, on information and belief, was acting within the course and scope of his/her employment with Defendant Collector at all times relevant to this Complaint.

4. JURISDICTION AND VENUE

4.1. Federal jurisdiction (delete if state-court filing). This Court has subject-matter jurisdiction over Count I pursuant to 28 U.S.C. § 1331 (federal question) and 15 U.S.C. § 1692k(d), and supplemental jurisdiction over Counts II and III pursuant to 28 U.S.C. § 1367.

4.2. State jurisdiction (delete if federal-court filing). This Court has subject-matter jurisdiction pursuant to 15 U.S.C. § 1692k(d) (concurrent jurisdiction) and N.C. Gen. Stat. § 7A-240 et seq. The amount in controversy [exceeds / does not exceed] $25,000.00.

4.3. Venue. Venue is proper in [FEDERAL DISTRICT / N.C. COUNTY] because a substantial part of the events giving rise to the claims occurred in this judicial district/county and/or because Defendants transact business and direct collection activity at Plaintiff in this district/county. See 28 U.S.C. § 1391(b); N.C. Gen. Stat. § 1-79, § 1-82.

5. FACTUAL ALLEGATIONS

5.1. The alleged debt at issue (the "Debt") is a [credit card / medical / utility / other] consumer obligation incurred primarily for personal, family, or household purposes, and therefore is a "debt" within the meaning of 15 U.S.C. § 1692a(5).

5.2. On or about [DATE], Defendant Collector began contacting Plaintiff in connection with collection of the Debt.

5.3. [DESCRIBE COLLECTION CONDUCT — e.g., number and frequency of telephone calls; calls before 8:00 a.m. or after 9:00 p.m. local time at the consumer's location; calls to third parties; threats of suit, arrest, or wage garnishment; misrepresentations of the amount owed, the legal status of the debt, or the consequences of nonpayment; failure to provide the § 1692g validation notice; continued collection after written cease-and-desist or after a timely written dispute].

5.4. [DESCRIBE EACH SPECIFIC INCIDENT WITH DATE, TIME, MEDIUM (call/letter/email/text), AND CONTENT.]

5.5. Plaintiff sent Defendant Collector a written [dispute / cease-and-desist / validation request] on [DATE], by [certified mail / email].

5.6. Despite Plaintiff's communications, Defendants continued to engage in the conduct described above.

5.7. As a direct and proximate result of Defendants' conduct, Plaintiff has suffered actual damages, including but not limited to: emotional distress; humiliation; anxiety; lost time and wages addressing the unlawful conduct; long-distance and cellular telephone charges; postage; and out-of-pocket expenses.

6. COUNT I — VIOLATIONS OF THE FDCPA, 15 U.S.C. §§ 1692 et seq.

6.1. Plaintiff realleges and incorporates Paragraphs 2.1 through 5.7.

6.2. Defendants' conduct violated the FDCPA in one or more of the following respects:

• § 1692c(a)(1): communicating with Plaintiff at unusual or inconvenient times or places (before 8:00 a.m. or after 9:00 p.m. at the consumer's location);
• § 1692c(a)(2): communicating with Plaintiff after Defendants knew Plaintiff was represented by counsel with respect to the Debt;
• § 1692c(c): continuing to communicate with Plaintiff after Plaintiff's written cease-and-desist;
• § 1692d: engaging in conduct the natural consequence of which is to harass, oppress, or abuse Plaintiff (including § 1692d(5) — repeated or continuous telephone calls intended to annoy, abuse, or harass);
• § 1692e: using false, deceptive, or misleading representations or means in connection with the collection of the Debt, including but not limited to § 1692e(2) (false representation of the character, amount, or legal status of the Debt), § 1692e(5) (threat to take action that cannot legally be taken or is not intended to be taken), § 1692e(8) (communicating false credit information), § 1692e(10) (deceptive means), and § 1692e(11) (failure to disclose the "mini-Miranda");
• § 1692f: using unfair or unconscionable means to collect or attempt to collect the Debt, including § 1692f(1) (collection of an amount not authorized by agreement or law);
• § 1692g(a): failing to provide the required validation notice within five days of the initial communication;
• § 1692g(b): continuing collection after Plaintiff timely disputed the Debt in writing without first ceasing collection and obtaining and mailing verification.

6.3. The "least sophisticated consumer" standard governs analysis of Defendants' representations under § 1692e.

6.4. Plaintiff is entitled to recover actual damages, statutory damages of up to $1,000.00 per violation/per case (15 U.S.C. § 1692k(a)(2)(A)), costs, and reasonable attorney fees pursuant to 15 U.S.C. § 1692k(a)(3).

7. COUNT II — VIOLATIONS OF THE N.C. COLLECTION AGENCY ACT, N.C. Gen. Stat. §§ 58-70-90 et seq.

7.1. Plaintiff realleges and incorporates Paragraphs 2.1 through 6.4.

7.2. Defendants engaged in collection activity directed at Plaintiff and are subject to Article 70 of Chapter 58 of the North Carolina General Statutes.

7.3. Defendants violated one or more of the following provisions:

• § 58-70-95 (Threats and coercion): including, without limitation, [describe — e.g., threats to disclose information affecting the consumer's reputation; threats to take legally impermissible action; threats of force or violence; communicating false credit information];
• § 58-70-100 (Harassment): including, without limitation, [describe — e.g., use of profane language; placing telephone calls without disclosure of the caller's identity; causing the telephone to ring with such frequency or at such times as to harass];
• § 58-70-110 (Unreasonable publication): including, without limitation, [describe — e.g., communications with third parties regarding the Debt without proper authority] (if applicable);
• § 58-70-110 (Deceptive representation): including, without limitation, [describe — e.g., misrepresentation of the character, extent, or amount of the Debt; falsely representing affiliation with a governmental entity or attorney];
• § 58-70-115 (Unfair practices): including, without limitation, [describe — e.g., seeking or obtaining a written affirmation from a debtor of a debt barred by limitations without disclosing the debtor's right to refuse; collecting fees not legally chargeable; communicating after notification of attorney representation].

7.4. Pursuant to N.C. Gen. Stat. § 58-70-130(a), Plaintiff is entitled to recover any actual damages sustained.

7.5. Pursuant to N.C. Gen. Stat. § 58-70-130(b), Plaintiff is entitled to recover a civil penalty of not less than $500 and not greater than $4,000 per violation.

7.6. Pursuant to N.C. Gen. Stat. § 58-70-130(c), reasonable attorney fees may be awarded to the prevailing party.

8. COUNT III — VIOLATIONS OF THE N.C. UNFAIR AND DECEPTIVE TRADE PRACTICES ACT, N.C. Gen. Stat. § 75-1.1

8.1. Plaintiff realleges and incorporates Paragraphs 2.1 through 7.6.

8.2. The acts and omissions described above constitute unfair or deceptive acts or practices in or affecting commerce within the meaning of N.C. Gen. Stat. § 75-1.1. A violation of the FDCPA and/or the North Carolina Collection Agency Act constitutes a per se violation of § 75-1.1 as to consumer debt-collection conduct that is unfair or deceptive under those statutes.

8.3. Plaintiff has been injured and has suffered actual damages proximately caused by Defendants' unfair and deceptive acts as set forth herein.

8.4. Pursuant to N.C. Gen. Stat. § 75-16, Plaintiff is entitled to mandatory trebling of the damages proximately caused by Defendants' violations of § 75-1.1. See Gray v. N.C. Ins. Underwriting Ass'n, 352 N.C. 61, 529 S.E.2d 676 (2000) (only damages proximately caused by the unfair act are trebled; damages attributable solely to other conduct are not).

8.5. Pursuant to N.C. Gen. Stat. § 75-16.1, the Court may, in its discretion, award reasonable attorney fees upon a finding that Defendants willfully engaged in the unfair or deceptive act and unwarrantedly refused to fully resolve the matter.

9. DAMAGES

9.1. Actual damages (FDCPA Count I and NCCAA Count II): out-of-pocket expenses, lost wages and lost time, emotional distress, anxiety, humiliation, harm to credit, and other compensable harms in an amount to be proven at trial.

9.2. Statutory damages — FDCPA: up to $1,000.00 per case under 15 U.S.C. § 1692k(a)(2)(A).

9.3. Statutory penalty — NCCAA: $500 to $4,000 per violation under N.C. Gen. Stat. § 58-70-130(b).

9.4. Trebled damages — UDTPA: mandatory trebling of damages proximately caused by Defendants' § 75-1.1 violation under N.C. Gen. Stat. § 75-16, as limited by Gray v. NCIUA.

9.5. Attorney fees and costs: under 15 U.S.C. § 1692k(a)(3) (mandatory upon successful FDCPA action), N.C. Gen. Stat. § 58-70-130(c) (NCCAA), and N.C. Gen. Stat. § 75-16.1 (UDTPA, discretionary).

10. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully demands judgment against Defendants, jointly and severally, for:

• A. Actual damages in an amount to be proven at trial;
• B. Statutory damages of $1,000.00 under 15 U.S.C. § 1692k(a)(2)(A);
• C. Civil penalties of $500 to $4,000 per violation under N.C. Gen. Stat. § 58-70-130(b);
• D. Mandatory trebling of all damages proximately caused by Defendants' § 75-1.1 violation pursuant to N.C. Gen. Stat. § 75-16;
• E. Reasonable attorney fees and costs under 15 U.S.C. § 1692k(a)(3), N.C. Gen. Stat. § 58-70-130(c), and N.C. Gen. Stat. § 75-16.1;
• F. Pre- and post-judgment interest at the maximum rate allowed by law;
• G. Such other and further relief as the Court deems just and proper.

11. DEMAND FOR TRIAL BY JURY

Plaintiff demands trial by jury on all issues so triable as a matter of right pursuant to Fed. R. Civ. P. 38 (federal court) or N.C. R. Civ. P. 38 (state court).

12. SIGNATURE AND SERVICE BLOCKS

Date: [DATE]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], N.C. State Bar No. [####]

Counsel for Plaintiff

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

13. CERTIFICATE OF SERVICE

I hereby certify that on [DATE], I caused the foregoing COMPLAINT to be served upon Defendants by [method] at the addresses set forth below:

[SERVICE LIST WITH ADDRESSES]

[________________________________]

[ATTORNEY NAME]

14. NORTH CAROLINA PRACTICE NOTES

• Per se UDTPA liability. North Carolina courts have repeatedly held that violations of regulatory statutes governing debt collection (including the FDCPA and the NCCAA) can constitute per se unfair or deceptive acts under § 75-1.1, but only where the violation is itself unfair or deceptive. Plead the underlying violation and articulate the unfair/deceptive character.
• Treble damages — proximate cause limit (Gray v. NCIUA). The North Carolina Supreme Court held in Gray v. N.C. Ins. Underwriting Ass'n, 352 N.C. 61 (2000), that § 75-16 trebles only those damages proximately caused by the § 75-1.1 violation, not damages traceable solely to breach of contract or other separate wrongs. In hybrid contract/UDTPA cases, the verdict must segregate the categories.
• Attorney fees — discretionary, two-element finding. A § 75-16.1 fee award requires the court to find (1) the defendant willfully engaged in the unfair/deceptive act and (2) unwarrantedly refused fully to resolve the matter. Plead and support both elements.
• NCCAA scope. The NCCAA reaches collection agencies and, per § 58-70-90(2), in-state creditors who collect their own debts using a name suggesting a third party is collecting. Out-of-state creditors collecting their own debts are not "debt collectors" under the FDCPA but may still be subject to UDTPA.
• Statute of limitations. FDCPA: 1 year (15 U.S.C. § 1692k(d), running from violation per Rotkiske v. Klemm). UDTPA: 4 years (N.C. Gen. Stat. § 75-16.2). NCCAA: confirm applicable residual SOL.
• Forum selection. Federal court generally offers more developed FDCPA jurisprudence and Rule 12(b)(6) practice; state Superior Court may offer better treble-damages and jury-pool dynamics. Weigh CAFA implications if class allegations.
• Class actions. FDCPA caps class statutory damages at the lesser of $500,000 or 1% of the collector's net worth (15 U.S.C. § 1692k(a)(2)(B)).
• Pre-suit demand. Although not a prerequisite to suit, a written § 75-16.1 demand and an opportunity to resolve creates the record needed for fee-shifting.

15. SOURCES AND REFERENCES

• Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p — https://www.law.cornell.edu/uscode/text/15/chapter-41/subchapter-V
• N.C. Gen. Stat. Chapter 75, Article 1 (UDTPA) — https://www.ncleg.gov/Laws/GeneralStatuteSections/Chapter75
• N.C. Gen. Stat. § 75-16 (treble damages) — https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_75/GS_75-16.pdf
• N.C. Gen. Stat. § 75-16.1 (attorney fees) — https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_75/GS_75-16.1.pdf
• N.C. Gen. Stat. Chapter 58, Article 70 (Collection Agencies) — https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_58/Article_70.html
• Gray v. N.C. Ins. Underwriting Ass'n, 352 N.C. 61, 529 S.E.2d 676 (2000) — https://caselaw.findlaw.com/court/nc-supreme-court/1316030.html
• Rotkiske v. Klemm, 589 U.S. 8 (2019)
• CFPB Debt Collection Rule (Reg. F), 12 C.F.R. Part 1006
• N.C. Department of Justice — Consumer Protection — https://ncdoj.gov/protecting-consumers/

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in North Carolina must review and customize this document before filing. Verify all citations and current statutory text before use.