FDCPA Violation Complaint - South Dakota

COMPLAINT FOR VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT AND SOUTH DAKOTA DECEPTIVE TRADE PRACTICES ACT

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 — Violations of the South Dakota Deceptive Trade Practices Act
8. Prayer for Relief
9. Demand for Jury Trial
10. Signature and Service Blocks
11. Certificate of Service
12. South Dakota Practice Notes
13. Sources and References

1. CAPTION

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

[NORTHERN / CENTRAL / SOUTHERN / WESTERN] DIVISION

Case No. [________________________________]

COMPLAINT AND DEMAND FOR JURY TRIAL

2. INTRODUCTION

1. This is a consumer-protection action brought under the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692p, and the South Dakota Deceptive Trade Practices and Consumer Protection Act ("SD DTPA"), SDCL ch. 37-24, to redress Defendant's abusive, deceptive, and unfair debt-collection practices directed at Plaintiff, a South Dakota consumer.

2. Congress enacted the FDCPA "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e).

3. South Dakota does not maintain a stand-alone state debt collection statute. Deceptive or unconscionable debt-collection conduct directed at South Dakota consumers is therefore actionable through SDCL § 37-24-31, which authorizes recovery of actual damages and reasonable attorney fees.

4. Plaintiff seeks actual damages, statutory damages, costs, and reasonable attorney fees, together with such other relief as the Court deems just and proper.

3. JURISDICTION AND VENUE

3.1. This Court has federal-question jurisdiction over Count I pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 1692k(d).

3.2. The Court has supplemental jurisdiction over the South Dakota state-law claim (Count II) pursuant to 28 U.S.C. § 1367(a) because it forms part of the same case or controversy as the federal claim.

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

4. PARTIES

4.1. Plaintiff [PLAINTIFF NAME] is a natural person residing in [COUNTY] County, South Dakota, and is a "consumer" as defined by 15 U.S.C. § 1692a(3).

4.2. Defendant [DEBT COLLECTOR NAME] is a [corporation / LLC] 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 therefore a "debt collector" as defined by 15 U.S.C. § 1692a(6).

4.3. [Optional] Defendant [CREDITOR / DEBT BUYER] is a [corporation / LLC] that [purchases / owns] the alleged debt at issue and uses Defendant [DEBT COLLECTOR] to collect it.

5. FACTUAL ALLEGATIONS

5.1. The alleged debt at issue is a "debt" within the meaning of 15 U.S.C. § 1692a(5) because it arises from a transaction in which the money, property, or services that were the subject of the transaction were primarily for personal, family, or household purposes (the "Alleged Debt").

5.2. On or about [DATE], Defendant [DEBT COLLECTOR] first communicated with Plaintiff regarding the Alleged Debt by [telephone / letter / email / text].

5.3. [DESCRIBE EACH COMMUNICATION OR ACT — e.g., calls before 8:00 a.m. or after 9:00 p.m.; calls to Plaintiff's workplace after notice not to call; misrepresentation of debt amount; threats of arrest, garnishment, or legal action that could not lawfully be taken; failure to send the § 1692g(a) validation notice within five days; continued collection activity after written dispute; communication with third parties; use of false names; reporting disputed debt to credit bureaus without disclosing the dispute].

5.4. [DATE] — Plaintiff sent Defendant a written debt-validation request and dispute pursuant to 15 U.S.C. § 1692g(b). A true and correct copy is attached as Exhibit A.

5.5. Despite the dispute, Defendant [failed to cease collection / failed to provide verification / continued to call / sued without verification] as required by 15 U.S.C. § 1692g(b).

5.6. As a direct and proximate result of Defendant's conduct, Plaintiff has suffered [describe injury — emotional distress, anxiety, sleeplessness, lost wages, attorney consultation fees, damaged credit reputation, 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 1 through 5.6.

6.2. Defendant violated the FDCPA in one or more of the following ways:

• 15 U.S.C. § 1692c(a)(1) — communicating with Plaintiff at unusual or inconvenient times or places;
• 15 U.S.C. § 1692c(a)(3) — communicating with Plaintiff at the workplace after notice that the employer prohibits such contact;
• 15 U.S.C. § 1692c(b) — communicating with third parties about the Alleged Debt without authorization;
• 15 U.S.C. § 1692d — engaging in conduct the natural consequence of which is to harass, oppress, or abuse;
• 15 U.S.C. § 1692e — using false, deceptive, or misleading representations, including misrepresentation of the character, amount, or legal status of the Alleged Debt (§ 1692e(2)(A)) and threats to take action that cannot legally be taken (§ 1692e(5));
• 15 U.S.C. § 1692f — using unfair or unconscionable means to collect the Alleged Debt;
• 15 U.S.C. § 1692g(a) — failing to provide the required validation notice within five days of the initial communication;
• 15 U.S.C. § 1692g(b) — failing to cease collection upon written dispute and to provide verification.

6.3. Defendant's violations were [knowing and intentional / not the result of a bona fide error within the meaning of 15 U.S.C. § 1692k(c)].

6.4. Pursuant to 15 U.S.C. § 1692k, Plaintiff is entitled to actual damages, additional statutory damages of up to $1,000, and reasonable attorney fees and costs.

7. COUNT II — VIOLATIONS OF THE SOUTH DAKOTA DECEPTIVE TRADE PRACTICES ACT

7.1. Plaintiff realleges and incorporates Paragraphs 1 through 6.4.

7.2. The collection of consumer debt directed at a South Dakota resident in connection with goods or services originally acquired for personal, family, or household purposes constitutes the "advertising or sale" of "merchandise" or a related practice within the meaning of SDCL § 37-24-1 and § 37-24-6.

7.3. Defendant engaged in deceptive acts or practices declared unlawful by SDCL § 37-24-6(1), including but not limited to:

• Knowingly and intentionally acting, using, or employing deceptive acts or practices, fraud, false pretense, false promises, or misrepresentations as to the character, extent, or amount of the Alleged Debt;
• Knowingly concealing, suppressing, or omitting material facts in connection with the attempted collection of the Alleged Debt;
• Misrepresenting the legal status of the Alleged Debt or threatening action that could not legally be taken.

7.4. Plaintiff was "adversely affected" by Defendant's conduct within the meaning of SDCL § 37-24-31 and suffered actual damages, including [out-of-pocket payments made under threat / fees and charges incurred / damaged credit-reporting history / time and expense spent disputing the Alleged Debt], in the amount of approximately $[AMOUNT].

7.5. Pursuant to SDCL § 37-24-31, Plaintiff is entitled to recover actual damages sustained as a result of Defendant's unlawful practices, together with reasonable attorney fees and costs.

8. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court enter judgment against Defendant as follows:

• A. Actual damages pursuant to 15 U.S.C. § 1692k(a)(1);
• B. Statutory damages of $1,000 pursuant to 15 U.S.C. § 1692k(a)(2)(A);
• C. Actual damages pursuant to SDCL § 37-24-31;
• D. Reasonable attorney fees and costs pursuant to 15 U.S.C. § 1692k(a)(3) and SDCL § 37-24-31;
• E. Pre-judgment and post-judgment interest as allowed by law;
• F. Such other and further relief as the Court deems just and proper.

9. DEMAND FOR JURY TRIAL

Plaintiff hereby demands a trial by jury on all issues so triable as a matter of right pursuant to Fed. R. Civ. P. 38(b) (or, if filed in state court, SDCL § 15-6-38).

10. SIGNATURE AND SERVICE BLOCKS

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

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

Counsel for Plaintiff

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

11. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I caused the foregoing COMPLAINT AND DEMAND FOR JURY TRIAL to be served upon Defendants pursuant to Fed. R. Civ. P. 4 at the following addresses:

[SERVICE LIST WITH ADDRESSES]

[________________________________]

[ATTORNEY NAME]

12. SOUTH DAKOTA PRACTICE NOTES

• Forum choice. The FDCPA is enforceable in any court of competent jurisdiction. 15 U.S.C. § 1692k(d). Federal court (D.S.D.) is typical because of mature fee-shifting precedent and uniform procedure. State-court actions proceed in South Dakota Circuit Court under SDCL ch. 15-6 (Rules of Civil Procedure).
• Statute of limitations — FDCPA. ONE (1) year from the date of the violation, 15 U.S.C. § 1692k(d). Each violation accrues separately. Rotkiske v. Klemm, 589 U.S. 8 (2019), rejects a default discovery rule absent fraud-based equitable tolling.
• Statute of limitations — SD DTPA. FOUR (4) years from the occurrence of the deceptive practice, SDCL § 37-24-33.
• No separate SD debt collection statute. Unlike many states, South Dakota has not enacted a parallel state Fair Debt Collection Practices Act. State-court remedies for abusive debt-collection practices flow through (a) the FDCPA, enforceable in state court, and (b) the SD DTPA's private right of action under SDCL § 37-24-31. Common-law claims (e.g., invasion of privacy by intrusion, intentional infliction of emotional distress, defamation) may be added where supported.
• SD DTPA scope is narrow — Brookings Mall. Brookings Mall, Inc. v. Cpt. Ahab's, Ltd., 300 N.W.2d 259 (S.D. 1980), and subsequent decisions emphasize that SDCL ch. 37-24 reaches only practices enumerated in § 37-24-6 and does not generally cover ordinary contract or commercial disputes. The statute is to be liberally construed in the consumer's favor for those enumerated practices but should not be over-pleaded.
• SD DTPA damages — actual only. SDCL § 37-24-31 authorizes "actual damages" and reasonable attorney fees and costs. There is no treble, double, or punitive multiplier under the private right of action. Compare neighboring jurisdictions (e.g., Iowa, Minnesota) that authorize multipliers.
• Pleading reliance and causation. South Dakota courts require the plaintiff to demonstrate adverse effect (i.e., causation between the deceptive practice and the loss). Plead specific facts showing reliance where the theory rests on a misrepresentation.
• Eighth Circuit "unsophisticated consumer" standard. Duffy v. Landberg, 215 F.3d 871 (8th Cir. 2000); Strand v. Diversified Collection Serv., Inc., 380 F.3d 316 (8th Cir. 2004). The standard is more protective than the "least sophisticated consumer" articulation used in some circuits but is still consumer-friendly.
• Bona fide error defense. Defendants may raise the § 1692k(c) defense; plaintiff should anticipate by alleging knowing or reckless conduct and the absence of reasonable preventive procedures.
• Pre-suit demand letters. Not required, but a pre-suit demand often produces FDCPA settlements before litigation. Preserve all communications and certified-mail receipts.
• Credit-reporting overlay. If Defendant reported the disputed debt to a CRA without noting the dispute, add a Fair Credit Reporting Act count (15 U.S.C. § 1681s-2(b)) after submitting an indirect dispute through the CRA.
• CFPB Regulation F. 12 C.F.R. Part 1006 (effective Nov. 30, 2021) imposes additional federal limits — e.g., the seven-in-seven call cap (§ 1006.14(b)) and validation-notice content rules (§ 1006.34). Violations of Regulation F also violate § 1692f(1) of the FDCPA.

13. 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
• 15 U.S.C. § 1692g (validation of debts) — https://www.law.cornell.edu/uscode/text/15/1692g
• 15 U.S.C. § 1692k (civil liability) — https://www.law.cornell.edu/uscode/text/15/1692k
• South Dakota Deceptive Trade Practices and Consumer Protection Act, SDCL ch. 37-24 — https://sdlegislature.gov/Statutes/37-24
• SDCL § 37-24-6 (deceptive acts or practices) — https://sdlegislature.gov/Statutes/37-24-6
• SDCL § 37-24-31 (private right of action) — https://sdlegislature.gov/Statutes/37-24-31
• SDCL § 37-24-33 (limitation of actions) — https://sdlegislature.gov/Statutes/37-24-33
• Brookings Mall, Inc. v. Cpt. Ahab's, Ltd., 300 N.W.2d 259 (S.D. 1980) — https://www.courtlistener.com/opinion/2056381/brookings-mall-inc-v-cpt-ahabs-ltd/
• Rotkiske v. Klemm, 589 U.S. 8 (2019)
• Duffy v. Landberg, 215 F.3d 871 (8th Cir. 2000)
• Strand v. Diversified Collection Serv., Inc., 380 F.3d 316 (8th Cir. 2004)
• CFPB Debt Collection Rule (Regulation F), 12 C.F.R. Part 1006 — https://www.consumerfinance.gov/rules-policy/regulations/1006/
• South Dakota Attorney General — Division of Consumer Protection — https://consumer.sd.gov/
• U.S. District Court, District of South Dakota — https://www.sdd.uscourts.gov/

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