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Defendants _____________________________/ RESPONSE IN OPPOSITION TO HP LOCATES MOTION TO DISMISS COMPLAINT AND FOR ATTORNEYS FEES COMES NOW Plaintiff, by and through the undersigned attorney, and files this Response to HP LOCATE, LLCs (HP Locate) Motion to Dismiss, and would show: INTRODUCTION Despite its arguments to the contrary, HP Locate is a debt collection company disguised as a skip-trace company. The company shares the same office and has the same employees and officers as Heritage Pacific Financial, LLC., a well-known debt collection company, which has been sued numerous times in State and Federal court for the same types of consumer protection law violations as are the subject of the instant lawsuit. In an attempt to prevent such lawsuits against the company from continuing, Heritage Pacific formed a separate entity named HP Locate, which it purports to be exempt from the Fair Debt Collections Practices Act (FDCPA) because it calls itself a skip-trace company rather than a debt collector, and because it indirectly collects debts rather than directly collecting them as its sister company Heritage Pacific does. Case No. 8:13-CV-00458-MSS-AEP

Unfortunately for HP Locate, and as will be shown below, it is established law that it is the conduct and the acts of an organization that determines whether it is subject to the FDCPA, rather than the type of business the company has labeled itself as. HP Locates conduct clearly shows that, despite labeling itself as merely a skip-trace company, it is in fact a debt-collector as defined by the FDCPA, and is subject to the provisions contained therein. BACKGROUND On February 7, 2013, a representative from HP Locate called the Plaintiff and left the following message on his voice mail: This is Porsche with HP Locate, I am trying to reach Richard. Richard, we do have some urgent information that we do need to relay to you. It is extremely important that you do give us a call back as soon as possible. My toll-free call back number is 888-331-1438, again, Porsche with HP Locate, 888-331-1438. Thank you. When the Plaintiff returned the telephone call, the HP Locate representative told the Plaintiff that HP Locate had been contracted by a third party to give him some urgent information, but first she needed to verify the last four digits of the Plaintiffs social security number. The Plaintiff verified that the last four digits were in fact his, and then the HP Locate representative told him that she was going to transfer him to the third party. When the Plaintiff asked the HP Locate representative what the urgent information was that HP Locate had for him, she repeated that she had to transfer him to the third party. At that point the Plaintiff asked who the third party was, but the representative merely said again that she would transfer him. When the Plaintiff asked again for the identity of the third party, the call was disconnected.

Several minutes later, Porsche from HP Locate called back and again told the Plaintiff that she had urgent information for him, and the Plaintiff re-verified his identity. Porsche then told the Plaintiff that she would transfer him to the third party, without giving him any important information. This time when the Plaintiff asked who the third party was, the HP representative told him that it was a company named AHMSEY, which the Plaintiff recognized to be AHMSI, the former creditor of the subject debt. Upon learning who the third party was, the Plaintiff terminated the call. Immediately after the Plaintiff terminated the call, HP Locate began a barrage of telephone calls to the Plaintiffs cellular telephone, totaling nine more calls over a ten-minute period of time. When the Plaintiff would try to answer, there would be no one on the line. Finally, the Plaintiff called HP Locate again, the representative who answered the call verified the Plaintiffs identity yet again, and then transferred the Plaintiff to Homeward Residential, which attempted to collect the debt. STANDARD OF REVIEW In ruling on a motion to dismiss, all factual allegations of the operative complaint are considered true and all inferences from those facts will be construed in the light most favorable to the plaintiff. See Speaker v. U.S. Dept of Health & Human Servs. Ctrs. of Disease Control and Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). The Court must read Plaintiffs pro se allegations in a liberal fashion. See Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). The complaint must allege only enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

The factual allegations must be enough to raise a right to relief above the speculative level. Id. Determining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Ashcroft v. Iqbal, 556 U.S ___, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). I. HP LOCATE IS A DEBT COLLECTOR AND WAS ATTEMPTING TO COLLECT A DEBT FROM THE PLAINTIFF. a. Legal Standards The FDCPA defines the term "debt collector" as any person whose principal purpose of business is to collect debts or any person who regularly collects or attempts to collect, directly or indirectly, debts owed or due to another. 1692a(6). The term "debt collector" is not limited to formal debt collection agencies See Heintz v. Jenkins, 514 U.S. 291, 299, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995), citing the Fair Debt Collections Practices Act. (Emphasis supplied). b. Argument HP Locate contends that it is not subject to the provisions of the FDCPA merely because it calls itself a skip-trace company rather than a debt collector, but does not even attempt to explain its position, other than to continually deny the allegations in the Complaint. As the Plaintiffs allegations are considered true for the purpose of ruling on the Defendants Motion to Dismiss, the Motion fails and must be denied in its entirety. The Seventh Circuit best explains what a legitimate skip-trace company does for its client: Skip tracing is relatively uncomplicated. Collection agencies provide skip tracers with identifying information, such as debtors' names and social security numbers. The skip tracers then use their particular talents to discover the debtors' whereabouts. The skip tracers pass this information

back to the collection agencies, which may then contact the debtors or their employers to attempt collection of the debt through garnishment of wages or otherwise. United States v. Cummings, 395 F.3d 392, 397 (7th Cir.2005). When such a companys conduct goes beyond mere information gathering, it then becomes a debt collector, thus subject to the FDCPA. See Romine v. Diversified Collection Servs., 155 F.3d (9th Cir.1998). See also Thompson v. National Credit Adjusters, LLC., Dist. Ct. Minn. 2012, Case No. 10-cv-2307 (The Court determines that, as in Romine, [the skip tracer] went well beyond performing administrative tasks [for its client] and is a debt collector for purposes of the FDCPA); Baker v. Trans Union, LLC., Dist. Ct. Ariz. Case No. CV-10-8038. (Surpassing mere information gathering will bring a skip-trace company within the FDCPAs coverage). Inn addition, The Supreme Court has recognized that one need not gain possession of a debt, or personally benefit financially from the satisfaction of a debt, in order to assume liability as a "debt collector" under the FDCPA. See Heintz v. Jenkins, 514 U.S. 291, 299, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995). See also: Romine v. Diversified Collection Servs., 155 F.3d (9th Cir.1998). In the instant case, HP Locate was not tasked with merely gathering information with regards to the Plaintiffs location and/or telephone number. Its client, Homeward Residential, has had the Plaintiffs contact information for almost three years, and utilized that information itself to attempt to collect the subject debt, prior to the debt being settled. See Hartman v. American Home Mortgage Servicing, Inc., Case No. 8:11-cv-2030, M.D. Fla. Thus, HP Locate was not attempting to

gather information with regards to the Plaintiffs contact information, but rather was contacting the Plaintiff in an attempt, indirectly or otherwise, to collect the debt. Indeed, in HP Locates Motion to Dismiss, it admits to being retained to contact the Plaintiff, rather than being retained to gather information about the Plaintiff. 1 Had HP Locate truly been acting merely as a skip-trace company, once it verified the Plaintiffs information during the first telephone call, its job would have of been done and there would have been no further need to contact the Plaintiff. Instead, HP Locate continued to contact the Plaintiff until it was able to connect him with its client for the purpose of collecting the debt. Thus, HP Locate indirectly attempted to collect the debt and is subject to the provisions of the FDCPA. The Ninth Circuit has explained that a determination of whether an entity falls within the definition of "debt collector" for purposes of the FDCPA depends not on the entity's organizational label, but rather on the nature of its activities. See Romine 155 F.3d at 1149, citing Jenkins v. Heintz, 25 F.3d 539 (7th Cir.1994). This conduct by HP Locate is not an isolated event, but rather is its business model. According to its promotional material that it provides to its prospective clients, HP Locate has redefined the skip tracing industry. HP Locate brings more than 100 collective years of finance management experience and understands the needs that call centers & organizations face getting in contact with borrowers. The company has spent years perfecting the art of customer contact and can not only give you verified RPC

Motion to Dismiss, at Dkt. 9, page 3, last paragraph.

information, but can get the customer on the phone and connected directly with your agents. (Emphasis supplied). See Exhibit A, Print-out of HP Locates promotional materials. Moreover, the telephone message left for the Plaintiff, and the conduct of the HP Locate representatives were deceptive as the Plaintiff was told that HP Locate had urgent information for him, when in fact, its only goal was to connect the Plaintiff with its client, Homeward. The deception and conveying a false sense of urgency to the Plaintiff to get him to call HP Locate also brings the company within the grasp of the FDCPA. See Baker v. Trans Union, LLC, supra, citing Romine 155 F.3d. II. HP LOCATE VIOLATED THE FDCPA HP Locate argues that it did not know that the subject debt had been settled in full or that the Plaintiff was represented by an attorney with respect to the debt, thus absolving it of liability under the FDCPA for attempting to collect the debt, and therefore the action should be dismissed. To support its argument, HP Locate relies on Bacilli v. MFP, Inc. 729 F.Supp.2d 1328, 1334 (M.D. Fla. 2010) and Randolph v. IMBS, Inc., 368 F.3d 726 (E.D. Penn. 2004). HP Locates reliance on these cases is misplaced. According to the Seventh Circuit, [the FDCPA] creates a strict-liability rule and [d]ebt collectors may not make false claims, period. Randolph v. IMBS, Inc., 368 F.3d 726, 730 (7th Cir. 2004). Ignorance is no excuse and the provision applies "even when a false representation was unintentional." Turner v. J.V.D.B. & Assoc., 330 F.3d 991, 995 (7th Cir. 2003) (quoting Gearing v. Check Brokerage Corp., 233 F.3d 469, 472 (7th Cir. 2000)); see also Randolph, 368 F.3d at 728 (stating that a "debt collector's false

statement is presumptively wrongful" under 1692e(2)(A) even if the speaker is ignorant of the truth). With respect to Bacelli v. MFP, Inc., while the court did in fact state that a debt collector does not have a duty to verify information provided by the creditor, HP Locate fails to mention that the court goes on to state [t]he FDCPA does not ordinarily require proof of intentional violation and, as a result, is described by some as a strict liability statute. Id. citing LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1190 (11th Cir.2010). Thus, while a debt collector is not required to verify the information provided to it, if it chooses not to, it does so at its own peril. HP Locate goes on to argue that the Plaintiff has not presented any evidence to support his allegation that HP Locate caused his telephone to ring repeatedly or continuously with the intent to annoy, abuse or harass the Plaintiff. HP Locate is seeking a legal standard not required by law at this point in this action. The Plaintiff has alleged that HP Locate called him eleven times in one day, including ten telephone calls within a twelve-minute period of time. Taken as true, this allegation is sufficient to survive a motion to dismiss. Notwithstanding the same, once proven that HP Locate called the Plaintiff with such frequency, it will be obvious that the intent was to harass, abuse and annoy the Plaintiff. HP Locate utilizes the same basic argument with respect to the remaining FDCPA claims. However, once again, the argument fails. Plaintiff is not required to present evidence at this stage in the lawsuit, but rather to plead only enough facts to state a claim to relief that is plausible on its face, which the Plaintiff has done. Accordingly, the motion to dismiss must be denied.


HP LOCATE VIOLATED THE FCCPA HP Locates argument with respect to the FCCPA is largely the same as its

arguments with respect to the FDCPA, with a few notable exceptions. HP Locate argues that it is not liable under the FCCPA because it is not a debt collector. While it has already been demonstrated that HP Locate is in fact a debt collector, unlike the FDCPA, liability under the FCCPA is not limited solely to debt collectors. See Schauer v. General Motors Acceptance Corp., 819 So. 2d 809 (Fla. 4th DCA 2002). In addition, HP Locate relies on Bentley v. Bank of America, N.A., 773 F.Supp.2d 1367, 1372 (S.D.Fla. 2011), however, the case is distinguishable from the instant case. In Bentley the Plaintiff did not plead factual allegations in his complaint, but rather Plaintiff simply makes the conclusory allegation that Defendants "knew they did not have a legal right to use such collection techniques," without any specific factual allegations. Id. In addition, rather than alleging which defendant committed which violation, the Plaintiff improperly lumped all of the defendants together, making it impossible for the court to determine which defendant was responsible for which violation. Id. Neither of these scenarios are the case here. The Plaintiff has pleaded

sufficient facts to survive a motion to dismiss, and has made it obvious which defendant is responsible for which violations. Finally, incredibly, HP Locate argues that because the Second Circuit of Florida did not find eighteen telephone calls to rise to the level of harassment in Desmond v. Accounts Receivable Management, Inc., that ten calls must not constitute

harassment either. What HP Locate fails to mention with respect to Desmond is that the eighteen telephone calls in that case were made in a three month period, or approximately one call every five days. In the instant case, the ten calls were made in a twelve-minute period of time, or just under one call per minute. The Plaintiff submits that comparing these two cases would be improper. Thus, HP Locates motion to dismiss should be denied. The Plaintiff does voluntarily withdraw Paragraphs 82, 84, 88, 92 and Count X from the Complaint. IV. HP LOCATE USED AN AUTO-DIALER TO CALL THE PLAINTIFFS CELLULAR TELEPHONE AND IS LIABLE FOR DAMAGES UNDER THE TELEPHONE CONSUMER PROTECTION ACT. HP Locates argument with respect to the alleged violations of the TCPA is essentially a denial of same. As the allegations in the complaint must be taken as true for the purpose of the motion to dismiss, the motion must be denied. In addition, the Plaintiff has alleged sufficient facts regarding HP Locates use of an auto-dialer to survive a motion to dismiss. Thus, the motion to dismiss must be denied. V. INVASION OF PRIVACY Once again, HP Locates arguments rely on cases that are quite distinguishable from the case at bar. In Oppenheim v. I.C. System, the court determined that thirtyfive to forty calls over three months, or one call every two to three days, was not an invasion of privacy. In Zirena v. Capital One Bank (USA), N.A., the court determined that the defendant could be liable for invasion of privacy for making one hundred calls in a month, or approximately three calls per day. Neither of the cases relied upon by HP Locate discuss a defendant making ten telephone calls in twelve minutes.

Thus, the Plaintiff has sufficiently pleaded a cause of action for an invasion of his privacy. VI. HP LOCATE IS NOT ENTITLED TO RECOVER ATTORNEYS FEES HP Locate has suggested that the Plaintiff has brought this action in bad faith and for the purpose of harassment, and that it is therefore entitled to attorneys fees. To support its claim, it cites Rhinehart v. CBE Group, Inc. (M.D. Fla. 2010) and Tucker v. CBE Group, Inc. (M.D. Fla. 2010), however those cases are quite distinguishable from the instant case. In Rhinehart and Tucker, which are cases related to one another, the plaintiffs attorney filed lawsuits on behalf of multiple plaintiffs, based on the same alleged conduct of the defendant, and filed identical complaints in each case, comprised of boilerplate allegations and requests for types of relief that could not possibly apply to the instant case[s]. Tucker v. CBE Group, Inc., 710 F.Supp.2d 1301 (M.D.Fla 2010). What the court found particularly troubling was that Plaintiffs counsel failed to dismiss any of these claims when it became clear during discovery that they had no factual basis whatsoever, forcing Defendant to file a summary judgment motion. Id. It was only after extensive discovery had taken place, it become apparent that discoverable evidence would not bear out the majority of the Complaint's claims, but the plaintiff and his attorney continued in their quest, that the Court [found] that this is one of the rare cases where sanctions are justified. Id. In the instant case, the Plaintiff has alleged facts specific to this lawsuit, and no other, so the Complaint could not possibly be considered boilerplate. Furthermore, all of the Plaintiffs claims are supported by those facts, and all of the

Plaintiffs claims are indeed colorable, hence, the Defendants attorneys fees would not be appropriate in this action. In order for the Defendant to be entitled to attorneys fees, it would have to prove through admissible evidence that the Plaintiff brought an FDCPA action in bad faith and for the purpose of harassment. Mere conclusory assertions are not sufficient proof of same. See Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 940-41 (9th Cir. 2007); see also Bonner v. Redwood Mortg. Corp., No. C 10-00479 WHA, 2010 WL 2528962, at *5 (N.D. Cal. June 18, 2010) ("Defendants' conclusory assertion that plaintiff's purpose was to harass does not entitle them to attorney's fees under the federal Debt Collection Practices Act."). The Defendant must show that plaintiff knew the claim was meritless and that [he] pursued the claim for purposes of harassment. Carman v. CBE Group, Inc., 782 F. Supp. 2d (D. Kan. 2011). An award for the Defendants attorneys fees would not be appropriate as the facts of the case are sufficiently unique to bring an action against HP Locate. See Riebe v. Juergensmeyer and Associates, 979 F. Supp. 1218 (N.D.Ill.) As all of the Plaintiffs claims are colorable, attorneys fees also would not be appropriate under the Florida Consumer Collections Practices Act. Regarding HP Locates assertion that the Plaintiff in this action has filed approximately nine substantially similar actions, which have all been consolidated

to one court for more efficient resolution,2 the Defendants assertion is incorrect, misleading and possibly sanctionable. The Plaintiff in this action, Richard H. Hartman, II, has filed seven civil actions3, including the case at bar, in the Middle District of Florida in the past two years. Each action was based on a specific set of facts, and each specific set of facts were accurately pled in the complaints for each case. None of the complaints were boilerplate, none of the actions were consolidated to one court, and importantly, each of the lawsuits ended favorably for the Plaintiff. It is unclear to the Plaintiff whether HP Locate failed to review those seven lawsuits, which are all a matter of public record and available on PACER, or is intentionally attempting to mislead this Court, but regardless, by making those false assertions in its Motion to Dismiss and then signing the Motion, HP Locate is clearly in violation of Rule 11(b), Fed.R.Civ.P. CONCLUSION In its Motion to Dismiss Plaintiffs Complaint and for Attorneys Fees, HP Locate states many times that it is merely a skip-trace company and not a debt collector, but it fails to make a single argument substantiating its position. Instead, its arguments show that it was, in fact, acting as a debt collector with respect to the Plaintiffs debt.4 As explained in Section I, supra, if HP Locate had of truly been

2 3

See Defendant HP Locate, LLCs Motion to Dismiss Page 9. One such action, 8:11-cv-02030-MSS-AEP, pertained to the subject debt in the instant lawsuit. 4 HP was retained by Homeward, its client, to contact Plaintiff. Pg. 3, last paragraph, Motion to Dismiss HP was attempting to connect its client, Homeward, to Plaintiff. Pg. 6, first paragraph, Motion to Dismiss.

acting as a skip-trace company, and it was truly just gathering information as a legitimate skip-trace company does, once it spoke to the Plaintiff on the telephone the first time and verified that the Plaintiff was in fact the party its client was trying to locate, HP Locate would have passed that information on to its client, Homeward, and its job would have been done. But HP Locate was not hired to locate the Plaintiff. Its client, Homeward Residential, already knew where the Plaintiff was located and how to get in touch with him. HP Locates job was to get in touch with the Plaintiff and get him on the phone with its client, in any way it could.5 The way HP Locate chose to do so was to leave the Plaintiff a deceptive message on his voice mail, stating it had important information for him, when it really did not. Once it verified the Plaintiff was, in fact, the party its client wanted to get in touch with, HP Locate chose to call the Plaintiff over and over again, one call right after another, until it could finally do what it was hired to do and put the Plaintiff on the phone with its client, Homeward, for the purpose of collecting the debt. HP Locates actions were not those of a legitimate skip-trace company. They were those of a debt collector. The rest of HP Locates arguments are essentially denials of the factual allegations contained in the Complaint. Each factual allegation with pled with the specificity required to survive a motion to dismiss. Because the Plaintiffs allegations must be accepted as true, HP Locates arguments fail and its Motion to Dismiss must be denied.
HP called Plaintiff and asked to transfer him to Homeward, its client. Pg. 8, second paragraph, Motion to Dismiss. 5 See Exhibit A.

WHEREFORE, the Plaintiff, respectfully requests that the Court enter an order denying the Defendant HP Locates Motion to Dismiss Plaintiffs Complaint and for Attorneys Fees in its entirety, and for such further relief that the Court deems just and appropriate under the circumstances. Dated the _________ day of April, 2013.

Respectfully Submitted:

______________________________ Christie D. Arkovich, Esq. Florida Bar No. 963690 Erin M. Allen, Esq. Florida Bar No. 031383 CHRISTIE D. ARKOVICH, P.A. 1520 W. Cleveland St. Tampa, Florida 33606 (813) 258-2808 Attorneys for Plaintiff