FDCPA Violation Complaint (with NM Unfair Practices Act Counts)

COMPLAINT — FDCPA AND NEW MEXICO UNFAIR PRACTICES ACT — NEW MEXICO

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Jurisdiction and Venue
4. Parties
5. Factual Allegations
6. Count I — Violations of the FDCPA, 15 U.S.C. § 1692 et seq.
7. Count II — New Mexico Unfair Practices Act, NMSA § 57-12-1 et seq.
8. Count III — Unconscionable Trade Practice, NMSA § 57-12-2(E)
9. Damages
10. Prayer for Relief
11. Demand for Trial by Jury
12. Signature and Service Blocks
13. New Mexico Practice Notes
14. Sources and References

1. CAPTION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW MEXICO

CIVIL ACTION NO. [________________________________]

COMPLAINT FOR DAMAGES — FAIR DEBT COLLECTION PRACTICES ACT AND NEW MEXICO UNFAIR PRACTICES ACT

JURY TRIAL DEMANDED

2. INTRODUCTION

2.1. This is an action for actual damages, statutory damages, treble damages, costs, and reasonable attorney fees brought by an individual consumer against Defendant for violations of the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), and the New Mexico Unfair Practices Act, NMSA 1978 § 57-12-1 et seq. ("NMUPA").

2.2. Congress enacted the FDCPA "to eliminate abusive debt collection practices by debt collectors." 15 U.S.C. § 1692(e). The New Mexico Legislature enacted the NMUPA to provide a private remedy and deterrence against unfair, deceptive, and unconscionable practices in trade or commerce.

3. JURISDICTION AND VENUE

3.1. This Court has federal-question jurisdiction over Plaintiff's FDCPA claim pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 1692k(d).

3.2. This Court has supplemental jurisdiction over Plaintiff's NMUPA claims pursuant to 28 U.S.C. § 1367(a) because they arise from the same case or controversy as the FDCPA claims.

3.3. Venue is proper in the District of New Mexico pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to the claims occurred in this District and Plaintiff resides in [COUNTY], New Mexico.

4. PARTIES

4.1. Plaintiff [NAME] ("Plaintiff") is a natural person residing in [CITY, COUNTY], New Mexico, and is a "consumer" within the meaning of 15 U.S.C. § 1692a(3).

4.2. Defendant [DEFENDANT NAME] ("Defendant") is a [entity type] organized under the laws of [STATE] with its principal place of business at [ADDRESS]. Defendant regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due to another, and is a "debt collector" within the meaning of 15 U.S.C. § 1692a(6).

4.3. Defendant's conduct described herein occurred in the regular course of trade or commerce in New Mexico within the meaning of NMSA § 57-12-2(C).

5. FACTUAL ALLEGATIONS

5.1. The alleged debt that is the subject of Defendant's collection activity (the "Debt") arose from a transaction in which the money, property, insurance, or services that are the subject of the transaction were primarily for personal, family, or household purposes within the meaning of 15 U.S.C. § 1692a(5).

5.2. On or about [DATE], Defendant first contacted Plaintiff regarding the Debt by [telephone / letter / email / text].

5.3. [Describe specific conduct — verbatim quotes, dates, times, callers, numbers; attach call logs or letters as Exhibits A–[__].]

5.4. [If applicable: cease-communication request.] On [DATE], Plaintiff [orally / in writing] notified Defendant to cease all further communication pursuant to 15 U.S.C. § 1692c(c). Despite this notice, Defendant continued to contact Plaintiff on [DATES].

5.5. [If applicable: validation request.] On [DATE], within 30 days of Defendant's initial communication, Plaintiff disputed the Debt in writing and requested verification pursuant to 15 U.S.C. § 1692g(b). Defendant continued collection activity without first providing verification.

5.6. [If applicable: third-party disclosure.] Defendant communicated information regarding the Debt to [PERSON — relative, employer, neighbor] in violation of 15 U.S.C. § 1692c(b).

5.7. [If applicable: false representations.] Defendant falsely represented to Plaintiff that [character / amount / legal status of the Debt — e.g., that suit was imminent, that wages would be garnished without judgment, that the caller was an attorney, that arrest would follow].

5.8. As a direct and proximate result of Defendant's conduct, Plaintiff suffered [actual damages — emotional distress, lost time from work, out-of-pocket costs, harm to credit, etc.].

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

6.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 5.8.

6.2. Defendant violated the FDCPA, including without limitation:

• 15 U.S.C. § 1692c(a)(1) — communicating at unusual or inconvenient times or places;
• 15 U.S.C. § 1692c(a)(3) — communicating at the consumer's place of employment when prohibited;
• 15 U.S.C. § 1692c(b) — communicating with third parties regarding the Debt;
• 15 U.S.C. § 1692c(c) — continuing communication after written cease notice;
• 15 U.S.C. § 1692d — engaging in conduct the natural consequence of which is to harass, oppress, or abuse;
• 15 U.S.C. § 1692d(5) — causing the telephone to ring repeatedly with intent to annoy, abuse, or harass;
• 15 U.S.C. § 1692e — using false, deceptive, or misleading representations;
• 15 U.S.C. § 1692e(2)(A) — false representation of the character, amount, or legal status of the Debt;
• 15 U.S.C. § 1692e(4) — false representation that nonpayment will result in arrest, garnishment, or seizure absent lawful process and intent;
• 15 U.S.C. § 1692e(5) — threat of action that cannot legally be taken or is not intended to be taken;
• 15 U.S.C. § 1692e(11) — failure to disclose mini-Miranda;
• 15 U.S.C. § 1692f — using unfair or unconscionable means to collect;
• 15 U.S.C. § 1692g(a) — failure to provide validation notice within five days of initial communication;
• 15 U.S.C. § 1692g(b) — continuing collection after a timely dispute and before mailing verification.

6.3. Plaintiff is entitled to recover from Defendant under 15 U.S.C. § 1692k:

• (a) actual damages;
• (b) statutory damages of up to $1,000.00; and
• (c) costs of the action and reasonable attorney fees.

7. COUNT II — NEW MEXICO UNFAIR PRACTICES ACT, NMSA § 57-12-1 et seq.

7.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 6.3.

7.2. Plaintiff is a "person" who suffered loss as a result of Defendant's conduct within the meaning of NMSA § 57-12-10.

7.3. Defendant's conduct constitutes "unfair or deceptive trade practices" within the meaning of NMSA § 57-12-2(D), including without limitation:

• (a) Making false or misleading statements of fact concerning the character, extent, amount, or legal status of the Debt — § 57-12-2(D)(7), (14), (17);
• (b) Representing that the transaction confers or involves rights, remedies, or obligations that it does not have — § 57-12-2(D)(15);
• (c) Using exaggeration, innuendo, or ambiguity as to a material fact or failing to state a material fact if doing so deceives or tends to deceive — § 57-12-2(D);
• (d) Engaging in conduct that creates a likelihood of confusion or misunderstanding.

7.4. Defendant's violations were knowing and willful, exposing Defendant to treble damages under NMSA § 57-12-10(B).

7.5. NMUPA — TREBLE DAMAGES, MANDATORY FEE-SHIFTING. Pursuant to NMSA § 57-12-10:

• (a) Plaintiff is entitled to actual damages OR one hundred dollars ($100), whichever is greater;
• (b) Upon a finding that Defendant willfully engaged in the unfair trade practice, the Court may award up to THREE TIMES actual damages or three hundred dollars ($300), whichever is greater; and
• (c) The Court shall award reasonable attorney fees and costs to Plaintiff as the prevailing party. NMSA § 57-12-10(C).

8. COUNT III — UNCONSCIONABLE TRADE PRACTICE, NMSA § 57-12-2(E)

8.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 7.5.

8.2. Defendant's conduct constitutes an "unconscionable trade practice" within the meaning of NMSA § 57-12-2(E) in that it took advantage of the lack of knowledge, ability, experience, or capacity of Plaintiff to a grossly unfair degree, and/or resulted in a gross disparity between the value received and the price paid for goods or services.

8.3. Plaintiff is entitled to all remedies available under NMSA § 57-12-10, including actual damages or the $100 statutory minimum, treble damages on willfulness, and mandatory attorney fees and costs.

9. DAMAGES

9.1. Actual Damages. Plaintiff has suffered actual damages including emotional distress, anxiety, lost time from work, out-of-pocket expenses, and damage to credit reputation, in an amount to be proven at trial.

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

9.3. Statutory Damages — NMUPA. Statutory minimum of $100.00 per claimant, or actual damages, whichever is greater. NMSA § 57-12-10(B).

9.4. Treble Damages — NMUPA. Up to three times actual damages or $300.00, whichever is greater, on a finding of willfulness. NMSA § 57-12-10(B).

9.5. Attorney Fees and Costs. FDCPA — 15 U.S.C. § 1692k(a)(3). NMUPA — NMSA § 57-12-10(C) (mandatory).

10. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in Plaintiff's favor and against Defendant for:

• A. Actual damages in an amount to be determined at trial;
• B. Statutory damages of $1,000.00 under 15 U.S.C. § 1692k(a)(2)(A);
• C. Statutory damages or actual damages, whichever is greater, under NMSA § 57-12-10(B);
• D. Treble damages under NMSA § 57-12-10(B) for Defendant's willful conduct;
• E. Reasonable attorney fees and costs under 15 U.S.C. § 1692k(a)(3) and NMSA § 57-12-10(C);
• F. Pre-judgment and post-judgment interest;
• G. Such other and further relief as the Court deems just and proper.

11. DEMAND FOR TRIAL BY JURY

Plaintiff hereby demands a trial by jury on all issues so triable as a matter of right pursuant to Fed. R. Civ. P. 38.

12. SIGNATURE AND SERVICE BLOCKS

Date: [DATE]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], NM Bar No. [####]

Counsel for Plaintiff

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

13. NEW MEXICO PRACTICE NOTES

• NMUPA mandatory treble damages. New Mexico's Unfair Practices Act is among the most plaintiff-friendly consumer statutes in the country: § 57-12-10 provides a $100 statutory minimum, discretionary trebling on willfulness, and a MANDATORY attorney-fee award to the prevailing consumer. Always plead willfulness expressly and develop the willfulness record in discovery (training materials, scripts, prior complaints, supervisor knowledge).
• Statute of limitations. FDCPA: ONE year from the violation, 15 U.S.C. § 1692k(d) — diary immediately. NMUPA: FOUR years under NMSA § 37-1-4 (statutory torts/unwritten contracts) — preserves a remedy when the FDCPA window has closed.
• Original creditors. The FDCPA generally does not reach original creditors collecting their own debt (15 U.S.C. § 1692a(6)). The NMUPA, however, reaches "any person" engaged in trade or commerce — making the NMUPA the primary cause of action against creditors and servicers that fall outside the FDCPA.
• Class actions. FDCPA class statutory damages cap at the lesser of $500,000 or 1% of the collector's net worth, 15 U.S.C. § 1692k(a)(2)(B). NMUPA class actions are governed by NMSA § 57-12-10(E), which limits per-claimant statutory minima in class proceedings.
• Forum. FDCPA and NMUPA may be brought in U.S. District Court (concurrent federal-question jurisdiction) or in New Mexico state court (concurrent state jurisdiction). Magistrate Court jurisdiction is capped at $10,000 (NMSA § 35-3-3); Metropolitan Court (Bernalillo only) and District Court are alternatives for state filings.
• Validation period. The FDCPA § 1692g validation notice must be provided within 5 days of the initial communication, and the consumer has 30 days from receipt to dispute. The 2021 Regulation F (12 C.F.R. § 1006.34) imposes additional itemization-date and model-form requirements; check whether the validation notice meets Reg F.
• Bona fide error defense. 15 U.S.C. § 1692k(c) provides a bona-fide-error affirmative defense that does NOT extend to mistakes of law (Jerman v. Carlisle, 559 U.S. 573 (2010)). Anticipate this defense and request procedures discovery.

14. SOURCES AND REFERENCES

• 15 U.S.C. § 1692 et seq. (FDCPA) — https://www.law.cornell.edu/uscode/text/15/chapter-41/subchapter-V
• 12 C.F.R. Part 1006 (Regulation F) — https://www.consumerfinance.gov/rules-policy/regulations/1006/
• NMSA § 57-12-1 et seq. (NMUPA) — https://nmonesource.com/nmos/nmsa/en/nav.do
• NMSA § 57-12-10 (Private remedies) — https://law.justia.com/codes/new-mexico/chapter-57/article-12/section-57-12-10/
• NMSA § 37-1-4 (Statute of limitations — accounts) — https://nmonesource.com/
• Jerman v. Carlisle, 559 U.S. 573 (2010)
• Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100 (NMUPA elements)
• State ex rel. King v. B&B Inv. Grp., Inc., 2014-NMSC-024 (NMUPA unconscionability)
• New Mexico Department of Justice — Consumer Affairs — https://www.nmag.gov/about-the-office/consumer-affairs/

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in New Mexico must review and customize this document before filing. Laws, citations, and court rules change frequently; verify all authorities before use.