FDCPA Violation Complaint - South Carolina

FDCPA VIOLATION COMPLAINT — SOUTH CAROLINA

TABLE OF CONTENTS

1. Caption
2. Parties, Jurisdiction, and Venue
3. Factual Allegations
4. Count I — Federal FDCPA Violations (15 U.S.C. § 1692 et seq.)
5. Count II — South Carolina Consumer Protection Code (S.C. Code § 37-5-101 et seq.)
6. Count III — South Carolina Unfair Trade Practices Act (S.C. Code § 39-5-10 et seq.)
7. Damages
8. Prayer for Relief
9. Demand for Trial by Jury
10. Signature and Service Blocks
11. South Carolina Practice Notes
12. Sources and References

1. CAPTION

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

[CHARLESTON / COLUMBIA / GREENVILLE / FLORENCE / AIKEN] DIVISION

CIVIL ACTION NO. [________________________________]

COMPLAINT FOR DAMAGES — JURY TRIAL DEMANDED

Plaintiff, by and through undersigned counsel, complaining of Defendants, alleges as follows:

2. PARTIES, JURISDICTION, AND VENUE

2.1. Plaintiff [PLAINTIFF NAME] ("Plaintiff") is a natural person and a "consumer" within the meaning of 15 U.S.C. § 1692a(3) and a "consumer" within the meaning of S.C. Code Ann. § 37-1-301(11), residing in [CITY, COUNTY], South Carolina.

2.2. Defendant [COLLECTOR ENTITY] ("Collector") is a [CORPORATION / LLC / OTHER] organized under the laws of [STATE] with its principal place of business at [ADDRESS]. Collector regularly collects or attempts to collect debts asserted to be owed to another and is a "debt collector" within the meaning of 15 U.S.C. § 1692a(6) and a "debt collector" within the meaning of S.C. Code Ann. § 37-5-108(4).

2.3. Defendant [INDIVIDUAL COLLECTOR], upon information and belief, is an employee, agent, and/or officer of Collector who personally engaged in the conduct described herein and is jointly and severally liable.

2.4. The alleged debt at issue (the "Debt") is a "debt" within the meaning of 15 U.S.C. § 1692a(5) — namely, an obligation arising from a transaction in which the money, property, or services were primarily for personal, family, or household purposes — and a "consumer credit transaction" within the meaning of S.C. Code Ann. § 37-1-301(13).

2.5. Subject-matter jurisdiction is proper under 28 U.S.C. § 1331 (federal-question for the FDCPA count) and 28 U.S.C. § 1367 (supplemental jurisdiction over the SCUTPA and South Carolina Consumer Protection Code counts).

2.6. Venue is proper in the District of South Carolina under 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 this District.

2.7. Defendants transact business and direct collection communications into South Carolina and are subject to personal jurisdiction in this Court under S.C. Code Ann. § 36-2-803 (long-arm statute) and the Due Process Clause.

3. FACTUAL ALLEGATIONS

3.1. On or about [DATE], Defendants began attempting to collect the Debt from Plaintiff. The Debt was allegedly originally incurred to [ORIGINAL CREDITOR] for [NATURE OF CONSUMER TRANSACTION — e.g., medical services, credit card balance, retail purchase].

3.2. The Debt was incurred for personal, family, or household purposes and not for any business or commercial purpose.

3.3. On [DATE], Defendants contacted Plaintiff by [TELEPHONE / LETTER / EMAIL / TEXT] at [NUMBER / ADDRESS] seeking payment of $[AMOUNT].

3.4. [DESCRIBE EACH SPECIFIC ACT OF MISCONDUCT — e.g., calling before 8:00 a.m. or after 9:00 p.m.; calling Plaintiff's place of employment after being told such calls were prohibited; using profane or abusive language; misrepresenting the amount or legal status of the Debt; threatening litigation that Defendants did not intend to pursue; communicating with third parties about the Debt; failing to send the § 1692g validation notice within 5 days of initial communication; continuing collection efforts after Plaintiff disputed the Debt in writing; failing to identify the name of the collector and the creditor for whom the Debt is being collected.]

3.5. On [DATE], Plaintiff sent Defendants a written dispute and request for verification under 15 U.S.C. § 1692g(b). A true and correct copy is attached as Exhibit A.

3.6. Despite receiving Plaintiff's written dispute, Defendants [continued collection activity / failed to provide verification / reported the Debt to a consumer reporting agency without noting it as disputed / filed suit].

3.7. Defendants' conduct was willful or knowing within the meaning of S.C. Code Ann. § 39-5-140 because [STATE FACTS — e.g., conduct continued after written notice; conduct repeats prior FDCPA violations of which Defendants had been advised; conduct evidences a pattern across multiple consumers].

3.8. As a result of Defendants' conduct, Plaintiff has suffered actual damages including [emotional distress, anxiety, embarrassment, humiliation, loss of sleep, harm to credit, attorney consultation fees, lost wages, telephone charges, postage, and other out-of-pocket expenses].

4. COUNT I — FEDERAL FDCPA VIOLATIONS

4.1. Plaintiff realleges and incorporates Paragraphs 2.1 through 3.8.

4.2. Defendants violated the FDCPA, 15 U.S.C. § 1692 et seq., including but not limited to:

• § 1692c(a)(1) — communicating with Plaintiff at unusual or inconvenient times or places;
• § 1692c(a)(3) — communicating with Plaintiff at Plaintiff's place of employment after being notified that the employer prohibits such communications;
• § 1692c(b) — communicating with third parties about the Debt without Plaintiff's consent;
• § 1692d — engaging in conduct the natural consequence of which is to harass, oppress, or abuse;
• § 1692d(5) — causing the telephone to ring repeatedly with intent to annoy, abuse, or harass;
• § 1692e(2) — making false representations as to the character, amount, or legal status of the Debt;
• § 1692e(5) — threatening to take action that cannot legally be taken or that is not intended to be taken;
• § 1692e(8) — communicating credit information known or reasonably suspected to be false, including failing to mark the Debt as disputed;
• § 1692e(10) — using false representations or deceptive means to collect or attempt to collect the Debt;
• § 1692f — using unfair or unconscionable means to collect the Debt;
• § 1692g(a) — failing to provide the required validation notice within five (5) days of the initial communication;
• § 1692g(b) — continuing collection activity after a written dispute without first obtaining and mailing verification.

4.3. Defendants' conduct is actionable under 15 U.S.C. § 1692k. Plaintiff is entitled to actual damages, statutory damages up to $1,000, and reasonable attorney's fees and costs.

5. COUNT II — SOUTH CAROLINA CONSUMER PROTECTION CODE

5.1. Plaintiff realleges and incorporates Paragraphs 2.1 through 4.3.

5.2. The Debt is a "consumer credit transaction" under S.C. Code Ann. § 37-1-301(13), and Defendants are "debt collectors" within the meaning of S.C. Code Ann. § 37-5-108.

5.3. The South Carolina Consumer Protection Code (Title 37) prohibits, among other things:

• Using or threatening to use force, violence, or criminal prosecution against a consumer or family member;
• Communicating with a consumer at unusual or inconvenient times (defined as before 8:00 a.m. or after 9:00 p.m. absent contrary information);
• Communicating with a consumer at frequent intervals during a 24-hour period or at unusual hours where the primary purpose is harassment;
• Using profane or obscene language or language calculated to embarrass or oppress;
• Communicating directly with a consumer who is represented by counsel after notice of representation, absent counsel's consent or failure to respond within ten days;
• Communicating false or misleading information regarding the existence, amount, or legal status of the debt;
• Misrepresenting the identity of the collector or the consequences of nonpayment.

5.4. Defendants violated the Consumer Protection Code by engaging in the conduct described in Paragraphs 3.1 through 3.8.

5.5. Pursuant to S.C. Code Ann. § 37-5-202, Plaintiff is entitled to recover actual damages and a statutory penalty of not less than $100 nor more than $1,000 per violation, together with reasonable attorney's fees and costs.

5.6. The transaction and conduct are also unconscionable within the meaning of S.C. Code Ann. § 37-5-108, and the Court is empowered to refuse to enforce, or to limit, any unconscionable provision and to award appropriate equitable relief.

6. COUNT III — SOUTH CAROLINA UNFAIR TRADE PRACTICES ACT

6.1. Plaintiff realleges and incorporates Paragraphs 2.1 through 5.6.

6.2. Defendants are "persons" engaged in "trade or commerce" within South Carolina as defined in S.C. Code Ann. § 39-5-10.

6.3. Defendants' acts and practices in attempting to collect the Debt constitute "unfair or deceptive act[s] or practice[s] in the conduct of any trade or commerce" prohibited by S.C. Code Ann. § 39-5-20. Violations of the FDCPA and of the South Carolina Consumer Protection Code are unfair or deceptive acts or practices supporting per se SCUTPA liability.

6.4. Ascertainable Loss. Plaintiff has suffered an "ascertainable loss of money or property, real or personal," within the meaning of S.C. Code Ann. § 39-5-140, including out-of-pocket expenses, harm to credit, and emotional distress.

6.5. Public Interest / Potential for Repetition. Defendants' conduct adversely affected the public interest because:

• Defendants employ standardized form letters, scripts, dialer programs, and/or training materials that ensure repetition of the unlawful conduct against other South Carolina consumers;
• Defendants are commercial debt collectors who direct similar collection activity to numerous South Carolina residents in the regular course of business;
• The conduct alleged herein is part of a pattern that has the potential for repetition against other similarly situated consumers; and
• [ADD SPECIFIC FACTS — e.g., other consumer complaints in the CFPB database; prior enforcement actions; Better Business Bureau or AG complaints; public reviews].

These facts satisfy the public-interest requirement under Daisy Outdoor Advertising Co. v. Abbott, 322 S.C. 489, 473 S.E.2d 47 (1996), which holds that the SCUTPA public-interest prong is met by evidence of a "potential for repetition" of the unfair or deceptive act.

6.6. Willful or Knowing. Defendants' violations were willful or knowing within the meaning of S.C. Code Ann. § 39-5-140 because [STATE FACTS — pattern, prior notice, written disputes ignored, internal compliance failures].

6.7. Causation and Damages. As a direct and proximate result of Defendants' SCUTPA violations, Plaintiff has been damaged.

6.8. Pursuant to S.C. Code Ann. § 39-5-140, Plaintiff is entitled to recover actual damages, treble damages for Defendants' willful or knowing violations, plus mandatory reasonable attorney's fees and costs upon a finding of any violation.

7. DAMAGES

7.1. Actual damages including emotional distress, anxiety, embarrassment, harm to credit, lost wages, and out-of-pocket expenses, in an amount to be proven at trial.

7.2. FDCPA statutory damages of up to $1,000 per 15 U.S.C. § 1692k(a)(2)(A).

7.3. South Carolina Consumer Protection Code damages of actual damages plus a statutory penalty of $100 to $1,000 per violation under S.C. Code Ann. § 37-5-202.

7.4. SCUTPA actual damages, trebled for Defendants' willful or knowing conduct under S.C. Code Ann. § 39-5-140.

7.5. Equitable relief including a permanent injunction barring further unlawful collection conduct.

7.6. Reasonable attorney's fees and costs under 15 U.S.C. § 1692k(a)(3), S.C. Code Ann. § 37-5-202, and S.C. Code Ann. § 39-5-140 (mandatory upon any SCUTPA violation).

8. PRAYER FOR RELIEF

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

• A. Actual damages in an amount to be determined at trial;
• B. Statutory damages of $1,000 under the FDCPA;
• C. Statutory penalties of $100 to $1,000 per violation under S.C. Code Ann. § 37-5-202, plus actual damages;
• D. Treble damages under S.C. Code Ann. § 39-5-140 for Defendants' willful or knowing violations;
• E. Permanent injunctive relief barring Defendants from further unlawful collection conduct;
• F. Reasonable attorney's fees and costs;
• G. Pre-judgment and post-judgment interest as allowed by law;
• H. Such other and further relief as the Court deems just and proper.

9. 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, S.C. R. Civ. P. 38, and Article I, Section 14 of the South Carolina Constitution.

10. SIGNATURE AND SERVICE BLOCKS

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], S.C. Bar No. [####]

Counsel for Plaintiff

[STREET ADDRESS]

[CITY, SC ZIP]

Telephone: [________________]

Email: [________________]

11. SOUTH CAROLINA PRACTICE NOTES

• SCUTPA public-interest requirement (CRITICAL). Since Noack Enterprises, Inc. v. Country Corner Interiors of Hilton Head Island, Inc., 290 S.C. 475, 351 S.E.2d 347 (Ct. App. 1986), and as clarified by the South Carolina Supreme Court in Daisy Outdoor Advertising Co. v. Abbott, 322 S.C. 489, 473 S.E.2d 47 (1996), a private SCUTPA plaintiff MUST allege and prove that the defendant's conduct adversely affected the public interest. The public-interest prong is satisfied by evidence of a "potential for repetition." The court in Daisy emphasized that conduct affecting only the parties to the transaction is NOT actionable. Use specific allegations of standardized practices, training materials, scripts, dialer use, regulatory complaints, and pattern conduct (paragraph 6.5).
• No private class actions under SCUTPA. S.C. Code Ann. § 39-5-140 limits private recovery to "an action individually, but not in a representative capacity." This is a substantive limitation that has been enforced by the SC Supreme Court (Dema v. Tenet Phys. Servs.-Hilton Head, Inc., 383 S.C. 115, 678 S.E.2d 430 (2009)). Class actions on the SCUTPA count are unavailable; FDCPA class actions remain available under federal rules.
• Treble damages and mandatory fees. Under § 39-5-140, the court "shall award" three times actual damages upon a finding of willful or knowing violation. Attorney's fees and costs are mandatory upon a finding of ANY SCUTPA violation, regardless of willfulness — see Maybank v. BB&T Corp., 416 S.C. 541, 787 S.E.2d 498 (2016). Fees and treble damages are not subject to caps.
• Discovery rule. SCUTPA's three-year statute of limitations runs from discovery of the unlawful conduct (S.C. Code § 39-5-150). The discovery rule applies; carefully plead the discovery date.
• Consumer Protection Code parallels. Title 37 (SC Consumer Protection Code) covers most consumer-credit transactions and contains its own debt-collection prohibitions and penalties (§ 37-5-101 et seq., § 37-5-202). The SC Department of Consumer Affairs (SCDCA) administers Title 37. Because § 37-5-202 supplies actual damages plus a $100-$1,000 statutory penalty per violation, pleading both Title 37 and SCUTPA maximizes recovery.
• Forum selection. The FDCPA grants concurrent jurisdiction (15 U.S.C. § 1692k(d)). Federal court (U.S. District Court for the District of South Carolina) is often preferred for fee-shifting predictability; state Court of Common Pleas is appropriate where SCUTPA enhancement and equitable relief are central. SC magistrate courts have jurisdiction up to $7,500 (S.C. Code § 22-3-10).
• No common-law punitive damages required. The SCUTPA treble damages provision is statutorily authorized enhanced compensatory relief; common-law punitive damages may also be sought if the FDCPA or independent torts (defamation, IIED) are pled, but punitive damages on the SCUTPA count itself are not separately pled.
• Statutes of limitations. FDCPA: 1 year from violation, 15 U.S.C. § 1692k(d). SCUTPA: 3 years from DISCOVERY, S.C. Code § 39-5-150. SC Consumer Protection Code (Title 37): generally governed by the underlying transaction's limitations; consult § 37-5-202 and § 15-3-530.
• Bona fide error defense. Defendants may raise the FDCPA bona fide error defense under 15 U.S.C. § 1692k(c). South Carolina has no analogous defense in the SCUTPA — a useful state-law leverage point.
• Service of process. Service in South Carolina state court follows S.C. R. Civ. P. 4. Out-of-state defendants may be served via the long-arm statute, S.C. Code § 36-2-803.
• Pre-suit demand. SCUTPA does NOT require a pre-suit demand. A written demand letter is nevertheless a valuable practice to support the willfulness allegation triggering treble damages.
• CFPB and SCDCA referral. Filing parallel administrative complaints with the SC Department of Consumer Affairs (consumer.sc.gov) and the federal CFPB (consumerfinance.gov/complaint) creates documentary evidence of pattern conduct supporting the public-interest prong.

12. SOURCES AND REFERENCES

• 15 U.S.C. § 1692 et seq. (Fair Debt Collection Practices Act) — https://www.consumerfinance.gov/rules-policy/regulations/1006/
• S.C. Code Ann. § 39-5-10 et seq. (SCUTPA) — https://www.scstatehouse.gov/code/t39c005.php
• S.C. Code Ann. § 39-5-140 (Private actions) — https://www.scstatehouse.gov/code/t39c005.php
• S.C. Code Ann. § 39-5-150 (Limitations) — https://www.scstatehouse.gov/code/t39c005.php
• S.C. Code Ann. § 37-5-101 et seq. (Consumer Protection Code Remedies) — https://www.scstatehouse.gov/code/t37c005.php
• S.C. Code Ann. § 37-5-108 (Unconscionability) — https://www.scstatehouse.gov/code/t37c005.php
• S.C. Code Ann. § 37-5-202 (Civil liability) — https://www.scstatehouse.gov/code/t37c005.php
• Daisy Outdoor Advertising Co. v. Abbott, 322 S.C. 489, 473 S.E.2d 47 (1996) (public-interest / potential for repetition)
• Noack Enterprises, Inc. v. Country Corner Interiors, 290 S.C. 475, 351 S.E.2d 347 (Ct. App. 1986) (public-interest origin)
• Dema v. Tenet Phys. Servs.-Hilton Head, Inc., 383 S.C. 115, 678 S.E.2d 430 (2009) (no representative SCUTPA actions)
• Maybank v. BB&T Corp., 416 S.C. 541, 787 S.E.2d 498 (2016) (mandatory attorney's fees on any SCUTPA violation)
• Reynolds v. Ryland Group, Inc., 340 S.C. 331, 531 S.E.2d 917 (2000) (SCUTPA elements)
• South Carolina Department of Consumer Affairs — https://consumer.sc.gov/
• South Carolina Attorney General Consumer Protection — https://www.scag.gov/inside-the-office/legal-services-division/consumer-protection-antitrust/
• U.S. District Court for the District of South Carolina — https://www.scd.uscourts.gov/
• South Carolina Judicial Branch — https://www.sccourts.org/
• CFPB FDCPA resources — https://www.consumerfinance.gov/consumer-tools/debt-collection/

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