in the united states district court for the middle district of florida … · 2019. 12. 16. ·...

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ANNA CHAPA and FAUSTINO CHAPA III, Hon.

Plaintiffs, Case No.

COMPLAINT AND DEMAND FOR JURY TRIAL

v. ORANGE LAKE COUNTRY CLUB, INC dba ORANGE LAKE RESORTS dba ORANGE LAKE CAPITAL MANAGEMENT, Defendant.

COMPLAINT AND DEMAND FOR JURY TRIAL

NOW COME Plaintiffs, ANNA CHAPA AND FAUSTINA CHAPA, III (“Plaintiffs” or

“Chapa”), by and through counsel, DC CAPITAL LAW, LLP, and bring this action against the

above listed Defendant, ORANGE LAKE COUNTRY CLUB, INC. (“OLCC”) dba ORANGE

LAKE RESORTS dba ORANGE LAKE CAPITAL MANAGEMENT (hereinafter collectively,

“Defendant”) on the grounds set forth herein:

I. PRELIMINARY STATEMENT

1. The Plaintiffs allege that Defendant’s collection practices violate both the Fair

Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. (“FDCPA”) and The Florida Consumer

Collection Practices Act (“FCCPA”), 559.55 et seq., statutes enacted expressly to protect

consumers from the types of harm alleged herein. Defendant violated the FDCPA by, inter alia,

Case 6:18-cv-02227-ACC-KRS Document 1 Filed 12/28/18 of 22 PageID 1

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sending Plaintiffs collection notices that failed to include the required Federal Dispute and

Validation disclosures regarding Plaintiffs’ statutorily protected rights to dispute the debt and

seek verification thereof pursuant to 15 U.S.C. § 1692g.

2. Importantly, the FDCPA and FCCPA expressly prohibit any further collection

efforts while a request for validation or verification is pending. Defendant improperly deprived

Plaintiffs of the ability to make such a request through small fonts and big attention-seeking

threats to divert Plaintiffs from participating in their rights to verify and dispute the debts the

Defendant seeks from Plaintiffs, while threatening foreclosure in the public records of Orange

County, Florida.

3. Defendant is continuing to collect on the debt even though they have failed to

respond to validation requests made to Defendant’s collection firm, Orange Lake Capital

Management, while responding to Validation requests sent by Plaintiffs through their creditor,

OLCC.

4. Defendant is continuing to contact Plaintiffs’ credit reports while not validating

the debt as requested. Post-validation credit reporting is considered a collection effort under

Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 758 F. 3d 777 (6th Cir., 2014).

5. The FDCPA requires not only that debtors be given the right to dispute the debt

and seek verification thereof, but also, inter alia, that the debt collector demonstrates its

authority to recover the alleged debt from the debtor in the first place. See 15 U.S.C. §§

1692g(a)(1) through (5) and 1692g(b). Defendant failed to properly comply with any of those

provisions.

II. JURISDICTION & VENUE

6. Jurisdiction arises under 15 U.S.C. § 1692k(d) and 28 U.S.C. §§ 1331, 1337.


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7. Supplemental jurisdiction for Plaintiffs’ state law claims arise under 28 U.S.C. §

1367. The factual basis of the FCCPA claim is the same as the factual basis of the FCCPA claim

and this district court has supplemental jurisdiction over all other claims that are so related to the

claims in the action within such original jurisdiction that they form part of the same case or

controversy under Article III of the United States Constitution. 28 U.S.C. § 1367(a).

8. Declaratory relief is available under 28 U.S.C. §§ 2201, 2202.

9. Venue is appropriate in this federal district pursuant to 28 U.S.C. §1391(b)

because a substantial part of the debt collection under the FDCPA giving rise to Plaintiffs’

claims occurred within this federal judicial district at the time this action is commenced.

III. PARTIES

10. The Plaintiffs are each a natural person and consumer-debtors located in Selma,

County of Bexar, State of Texas, who purchased a condominium timeshare that is the subject of

the debt sold to them by Defendant in Orange County, Florida. On or around March 29, 2017,

Plaintiffs purchased a timeshare interest for personal use consisting of 100,000 points in the

Orange Lake in Scottsdale Timeshare Plan from Defendant OLCC.

11. At all times relevant to this complaint, Defendant OLCC is a Florida Profit

Corporation with its principal place of business at 8505 West Irlo Bronson Memorial Highway,

Kissimmee, FL 34747. Defendant OLCC does business as Orange Lake Resorts, a registered

fictitious name, located at the same address. Defendant OLCC also does business as Orange

Lake Capital Management, unregistered as either a corporate entity or a fictitious name.

Defendant OLCC was considered a creditor or managing entity until it began improperly

collecting on Plaintiffs’ debts, as set forth below, when Defendant OLCC made threats and

sought payments using names other than Defendant’s own in Orange Lake Resorts and Orange


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Lake Capital Management.

IV. STATUTORY SCHEMES AND APPLICABLE CASE LAW

A. The Fair Debt Collection Practices Act (“FDCPA”)

12. The FDCPA regulates the behavior of debt collectors that seek to collect debts on

behalf of another. The United States Congress has found abundant evidence of the use of

abusive, deceptive, and unfair debt collection practices by many debt collectors, and has

determined that abusive debt collection practices contribute to a number of social and financial

issues, including personal bankruptcies, marital instability, loss of employment, emotional

distress, and invasions of individual privacy. Congress enacted the FDCPA to eliminate abusive

debt collection practices by debt collectors, to ensure that those debt collectors who refrain from

using abusive debt collection practices are not competitively disadvantaged, and to promote

uniform State action to protect consumers against debt collection abuses. 15 U.S.C. §§ 1692(a)

through (e). To advance the purposes of the FDCPA, Congress included several specific

consumer-protective rights, including, but not limited to, those in § 1692e, § 1692f, and § 1692g.

13. The FDCPA is a strict liability statute, which provides for actual or statutory

damages upon the showing of one violation. Courts use the “least sophisticated consumer”

standard, an objective test, when assessing whether a Defendant’s conduct violates the FDCPA.

14. To prohibit deceptive practices, the FDCPA outlaws the use of false, deceptive,

and misleading collection practices and enumerates a non-exhaustive list of certain per se

violations of false and deceptive collection conduct. See 15 U.S.C. § 1692e. Among there per se

violations are: making false representations concerning the character, amount, or legal status of

any debt, § 1692e(2)(A); making false representations of any services rendered or compensated

which may be lawfully received by any debt collector for the collection of a debt, § 1692e(2)(B);


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communicating or threatening to communicate to any person credit information which is known

or which should be known to be false, including the failure to communicate that a disputed debt

is disputed, § 1692e(8); using any false representation or deceptive means to collect or attempt to

collect any debt or to obtain information concerning a consumer, § 1692e(10); and using any

business, company, or organization name other than the true name of the debt collector’s

business, company, or organization, § 1692e(14).

15. To reduce the use of unconscionable and unfair practices by debt collectors, the

FDCPA prohibits the use of unfair or unconscionable means to collect or attempt to collect any

debt and enumerates a non-exhaustive list of unconscionable or unfair debt collection practices

that constitute per se violations of the statute. See 15 U.S.C. §§ 1692f. Included among the per se

violations prohibited by this section is the attempt to collect any amount (including any interest,

fee, charge, or expense incidental to the principal obligation) unless such amount is expressly

permitted by law, 15 U.S.C. § 1692f (1).

16. To assert a violation of the FDCPA, a Plaintiffs must allege that (1) they have

been the object of collection activity arising from consumer debt, (2) the Defendant is a debt

collector as defined by the FDCPA, and (3) the Defendant has engaged in an act or omission

prohibited by the FDCPA. Salazar v. MFP, Inc., 847 F.Supp.2d 1329, 1331 (M.D. Fla. 2012)

(internal quotations and citations omitted).

17. A “consumer” is defined as any natural person obligated or allegedly obligated to

pay any debt. 15 U.S.C. § 1692a(3).

18. A “debt” is “any obligation or alleged obligation of a consumer to pay money

arising out of a transaction in which the money, property, insurance, or services which are the


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subject of the transaction are primarily for personal, family, or household purposes, whether or

not such obligation has been reduced to judgment.” Id. § 1692a(5).

19. A “creditor” is any person who offers or extends credit creating a debt or to whom

a debt is owed. Id. § 1692a(4).

20. A “debt collector” is any person who “uses any instrumentality of interstate

commerce or the mails in any business the principal purpose for which is the collection of any

debts, or who regularly collects or attempts to collect, directly, or indirectly, debts owed or due

or asserted to be owed or due to another.” Id. § 1692a(6). A debt collector includes any creditor

who, in the process of collecting his own debts, uses any name other than his own which would

indicate that a third person is collecting or attempting to collect such debts. Id.

21. The validation notice may not be either "overshadowed" or contradicted by other

language or material in the original or subsequent collection letters sent within 30 days after

receipt of the first one. A notice is overshadowing or contradictory if it would make the least

sophisticated consumer uncertain as to her rights.

22. Numerous courts have recognized that the FDCPA’s purpose—to eliminate

abusive debt collection practices—would be frustrated and undermined if subsequent debt

collectors were excused from complying with the requirements contained in § 1692g.

23. Section 1692g(a)(4) states that if the debtor disputes the debt in writing within

thirty days, the debt collector must obtain verification of the debt and must send the debtor a

copy of the verification (emphasis added). Section 1692g(a)(5) states that, if the debtor makes a

written request, the debt collector must provide the name and address of the original creditor.

Section 1692g(b) states that if the debtor disputes the debt in writing within thirty days, the debt

collector must cease collection efforts until the debt collector has verified the debt. Critically,


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each of the foregoing requirements is mandatory rather than permissive; the debt collector is

unequivocally obligated by the FCDPA to act in accordance with its provisions.

24. The FDCPA’s substantive provisions indicate that debt collection is performed

through either “communication,” “conduct,” or “means.” “Communication” refers to the

conveying of information regarding a debt directly or indirectly to any person through any

medium. 15 U.S.C. § 1692a(2).

25. The FDCPA’s bona fide error defense at 15 U.S.C. § 1692k(c) does not apply to a

violation of the FDCPA resulting from a debt collector’s incorrect interpretation of a legal

requirement of the FDCPA. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S.

Ct. 1605, 1611-12 (2010). "[W]here Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion." Russello v. United States,

464 U.S. 16, 23, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983).

B. The Florida Consumer Collection Practices Act (“FCCPA”)

26. The FCCPA is an act promulgated to regulate the collection practices of certain

persons; to provide for the powers and duties of certain state agencies; and to provide penalties

and civil fines in furtherance of protecting consumers from unfair collection practices.

Importantly, “in applying and construing” the FCCPA, “due consideration and great weight shall

be given to the interpretations of the Federal Trade Commission and the federal courts relating to

the federal Fair Debt Collection Practices Act.” FLA. STAT. § 559.77(5).

27. The goal of the FCCPA is to provide the consumer with the most protection

possible under either the state or federal statute.

28. The FCCPA defines a “debt collector” as:


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[A]ny person who uses any instrumentality of commerce within this state, whether initiated from within or outside this state, in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. The term ‘debt collector’ includes any creditor who, in the process of collecting her or his own debts, uses any name other than her or his own which would indicate that a third person is collecting or attempting to collect such debts. FLA. STAT. § 559.66(7).

29. A “consumer collection agency” means any debt collector or business entity

engaged in the business of soliciting consumer debts for collection or of collecting consumer

debts. Id. § 559.55(3).

30. A “debtor” or “consumer” is defined as “any natural person obligated or allegedly

obligated to pay any debt.” Id. § 559.55(8).

31. “Communication” means the conveying of information regarding a debt directly

or indirectly to any person through any medium. Id. § 559.55(2).

32. Under the FCCPA, a person who suffers injury, loss, or damage, or from whom

money was collected using a method, act, or practice in violation of this act may bring an action

for actual damages and for additional statutory damages of up to $1,000, together with court

costs and reasonable attorney's fees incurred by the plaintiff. Id. § 559.77. In determining the

Defendant's liability for any additional damages arising from a claim brought under this

subsection, the court shall consider the nature of the Defendant's noncompliance with the

FCCPA, the frequency and persistence of such noncompliance, and the extent to which such

noncompliance was intentional.

33. Section 559.72 of the FCCPA sets forth prohibited debt collection practices.

Specifically relevant to this case, the FCCPA prohibits any person from:


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(5) Disclos[ing] to a person other than the debtor…information affecting the debtor’s

reputation, whether or not for credit worthiness, with knowledge or reason to know…that

the information is false.

(6) Disclos[ing] information concerning the existence of a debt known to be

reasonably disputed by the debtor without disclosing that fact.

(9) [A]sserting the existence of some other legal right when such person knows that

the right does not exist.

IV. FACTS CONCERNING PLAINTIFF

34. On or about July 29, 2017, Plaintiffs allegedly incurred a financial obligation on the

purchase of a timeshare condominium involving the Defendant OLCC. Please see Exhibit 1.

35. On or about December 15, 2017, Plaintiff received a Special Warranty Deed supposedly

transferring real property to Plaintiffs. Please see Exhibit 2.

36. On or around September 6, 2018, Defendant sent a collection letter through Defendant’s

DBA, Orange Lake Capital Management, that stated, “WARNING LETTER,” and sought

payments in unspecified amounts for a mortgage account the Plaintiffs held. The letter provided

options for payment of the debt with the warning: “Your account is under review to be sent to a

Foreclosure Attorney.” Please See Exhibit 3.

37. The September 6, 2018 letter provided the validation and verification notice required

under the FDCPA but stated the notice in a font and print three to four times smaller than the

words stating it was a “WARNING LETTER” and the account was under review for the


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Foreclosure Attorney:

38. The significantly smaller font of the mandatory dispute and validation notice under 1692g

is deliberately written in such a way so that Plaintiffs will unintentionally waive their rights and

just focus on the Defendant’s threats to Plaintiffs regarding foreclosure. Further, and in violation

of §§ 1692g(a) (1) through (5), the Defendant’s letter does not provide Plaintiffs the name of the

creditor or the amount of the debt. Please see Exhibit 3.

39. On or about September 30, 2018 Defendant OLCC then sent a letter to Plaintiffs seeking


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payments and a past due balance of $985.50. Please see Exhibit 4.

40. On or about September 28, 2018, Plaintiffs’ attorney sent a Validation and Cease and

Desist letter to Defendant’s DBA Orange Lake Capital Management, seeking validation and

proof that Plaintiffs owe the disputed debt, pointing out the small font size of the Federal Dispute

and Validation notice and how the notice was overshadowed by the “WARNING NOTICE” and

“TWO POSSIBLE OPTIONS” language that Defendant was offering as the only course of

action for Plaintiffs. Please see Exhibit 5.

41. On or about October 15, 2018, Defendant OLCC, through its DBA Orange Lake Resorts,

sent a letter in response to the validation request at Exhibit 5 and stated in its response, “Please

be advised that Developer does not qualify as a ‘debt collector’ under the Fair Debt Collection

Practices Act.” The “Developer” is identified in the Contract for Sale and Promissory Note

attached in the validation response of Defendant’s DBA Orange Lake Resorts as Defendant

“Orange Lake Country Club, Inc.” Please see Exhibit 6.

42. The Validation and Cease and Desist Letter from Plaintiffs that Defendant’s DBA Orange

Lake Resort was responding to was sent to Defendant’s DBA Orange Lake Capital Management

at their address in Florida. Defendant’s DBA Orange Lake Resort’s validation response was sent

from the “Legal Department” in Dallas, Texas. Please see Exhibit 6.

43. On or about October 15, 2018 another letter was sent by Defendant through its DBA

Orange Lake Capital Management and was titled, “FINAL COLLECTION NOTICE” and again

threatened foreclosure if the unspecified debt was not paid within 30 days of the date of the

letter: Please see Exhibit 7. The letter was not mailed to Plaintiffs until October 18, 2018.

Please see envelope at Exhibit 7. Here the letter stated:


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44. Like the first letter from Defendant’s DBA Orange Lake Capital Management at Exhibit

3, the § 1692g Notice was barely readable while the warnings of the letter were in a significantly

larger font, about three-times larger. Further, while the barely readable, very small font-type §

1692g Notice stated the Plaintiff had 30 days after receipt of the letter to dispute the debt and

seek validation, the larger font-type in the main body of the October 15, 2018 letter stated that

the Plaintiffs must make a full payment within 30 days from the date of the letter. Again, the


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letter was not sent by Defendant’s DBA Orange Lake Capital Management until three days after

the date of the letter, on October 18, 2018. Please see Exhibit 7.

45. Defendant overshadowed its validation notice in its October 15, 2018 FINAL

COLLECTION NOTICE sent through its DBA Orange Lake Capital Management letter when it

demanded full payment within 30 days from the date of the notice. However, the notice was not

even sent until October 18, 2018. That is, Defendant demanded payment by November 14, 2018,

which cut short the dispute period Plaintiffs were afforded under § 1692g that began after receipt

of the letter.

46. Defendant, through its DBA Orange Lake Capital Management, had not validated the

debt as required under 15 U.S.C. § 1692g(a) and 15 U.S.C. § 1692g(b) with the response by

Defendant’s DBA Orange Lake Resorts. On or about November 8, 2018, Plaintiffs discovered

that Defendant OLCC had pulled and contacted Plaintiffs’ credit, even though they had not

validated the debt. Please see Plaintiffs’ credit report at Exhibit 8.

47. After Defendant violated the Plaintiffs’ rights under the FDCPA, specifically the

Plaintiffs’ rights to dispute and verify the debt, and to be spared any further collection efforts

unless and until the debt was verified, Defendant continued collection efforts, in violation of the

FDCPA and FCCPA, by contacting the Plaintiffs’ credit reports at Exhibit 8.

48. Specifically, the FDCPA states at 15 U.S.C. § 1692g(b) as follows and has a mandatory

cease and desist on collection efforts once the debtor is afforded the opportunity to dispute and

seek verification of the debt:

DISPUTED DEBTS If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector


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obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. (emphasis added).

49. Defendant’s letters, at Exhibit 3 and Exhibit 7, offering the § 1692g validation notice

and rights of the consumer were too small and overshadowed by other larger warning signs from

Defendant and Defendant gave Plaintiffs less than the 30 days to dispute that Federal law

requires.

50. In order to comply with§ 1692g(a), a debt collector "must 'effectively convey' the

notice to the debtor." Smith v. Computer Credit, Inc., 167 F.3d l 052, 1054 (6th Cir. 1999).

Section 1692g requires the validation notice to state that the debtor may dispute the debt

"within thirty days after receipt of the notice" (emphasis added).

51. Defendant’s failure to effectively convey the mandatory dispute and verification notice in

its letters prevented Plaintiffs from meaningfully advocating for themselves or otherwise

disputing or seeking verification of the debt, essentially opening a loophole through which

Defendant felt it could continue collection efforts with impunity through its DBAs.

52. Indeed, Defendant felt it did not have to “cease collection of the debt, or any disputed

portion thereof, until the debt collector obtains verification of the debt or a copy of a

judgment,” under 15 U.S.C. § 1692g(b) if there was no pending dispute or request for

verification (emphasis added).

53. Essentially, Defendant has circumvented Plaintiffs’ rights to be free from continued

unfair collection practices by failing to even afford them the opportunity to dispute or verify the

debt in the first place.

54. The lack of a consumer dispute or demand for verification allows a debt collector to

continue with its collection efforts unfettered and charge and pursue any payment amounts it


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wants, as Defendant continued to do when it initiated and continued the foreclosure and

collection processes.

55. Defendant violated the verification standards of the FDCPA in Defendant’s refusals to

cease collection efforts and continue the foreclosure process.

56. Defendant continued collection efforts further damaging the Plaintiffs’ financial and

credit reputation without properly validating the debt as required by Federal law.

57. Defendant’s DBA Orange Lake Capital Management was, at all times relevant to this

Complaint, engaged in the act and/or practice of “debt collection” as that term is defined by 15

U.S.C. § 1692a(6), as stated in its letters at Exhibit 3 and Exhibit 7.

58. Defendant’s letters attached hereto as Exhibits 3, 6 and 7, are “communications” as

defined by the FDCPA and FCCPA. The alleged debt at issue arose out of a transaction in which

the money, property, insurance, or services are the subject of the transaction that are primarily

for personal, family, or household purposes.

59. Pursuant to 15 U.S.C. § 1692n, the FDCPA does not preempt state laws unless and only

to the extent "those laws are inconsistent with any provisions of this subchapter."

60. Defendant failed to comply with the FDCPA while complying with Florida foreclosure

law. Significantly, “in applying and construing” the state debt collection law applicable in this

case, “due consideration and great weight shall be given to the interpretations of the Federal

Trade Commission and the federal courts relating to the federal Fair Debt Collection Practices

Act.” FLA. STAT. § 559.77(5).

61. Plaintiffs have suffered an injury in fact and still face, or have been subject to, damage to

their financial and credit reputation, recording costs, and increased attorney fees and foreclosure

as a result of Defendant’s collection threats and demand for payment shown in Exhibit 3 and


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Exhibit 7 and credit report at Exhibit 8, and did suffer such injuries as stated above because of

the Defendant’s unlawful and improper debt collection and validation activities, including

Defendant’s failure to effectively notify Plaintiffs of their Federal right to dispute and verify the

in violation of the FDCPA and FCCPA.

V. DEFENDANT IS A DEBT COLLECTOR

62. Under the FDCPA, the term “debt collector” includes any creditor who, in the process of

collecting its own debts, uses any name other than its own which would indicate that a third

person is collecting or attempting to collect such debts. See 15 U.S.C. § 1692a(6).

63. Defendant OLCC made no disclosure of the relationship between Defendant and Orange

Lake Capital Management.

64. Orange Lake Capital Management has not been clearly designated as being affiliated with

Defendant OLCC.

65. Defendant OLCC used Orange Lake Capital Management to collect Defendant’s debts.

The principal business purpose of Orange Lake Capital Management is the collection of debts.

66. Defendant OLCC used its DBA Orange Lake Capital Management only once the debt

was in default.

67. Defendant OLCC used Orange Lake Capital Management to send out threatening letters.

See WARNING LETTER and FINAL COLLECTION NOTICE at Exhibit 3 and Exhibit 7.

68. Defendant OLCC collected or attempted to collect its own debts by using a different

name, Orange Lake Capital Management, when Defendant OLCC controlled all aspects of the

collection effort.

V. FIRST CAUSE OF ACTION: VIOLATIONS OF THE FAIR DEBT COLLECTION

PRACTICES ACT


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69. Plaintiffs re-allege and incorporate by reference the allegations in the paragraphs 1-25

and 34 – 68 of this Complaint as if fully set forth herein and further state as follows:

70. Plaintiffs are and have been, at all times relevant to this Complaint, each a “consumer.”

71. Defendant is and has been, at all times relevant to this Complaint, a “debt collector”

when Defendant collected or attempted to collect its own debts by using a different name,

Orange Lake Capital Management, while Defendant controlled all aspects of the collection

effort.

72. Plaintiffs purchased the timeshare property for personal, family, or household use.

73. Each of the letters from Defendant’s DBA Orange Lake Capital Management was a

communication under the FDCPA.

74. In violation of 15 U.S.C. § 1692g, Defendant’s FINAL COLLECTION NOTICE, dated

October 15, 2018 but not mailed until October 18, 2018 through its DBA Orange Lake Capital

Management, was inconsistent with Plaintiffs’ rights to dispute the debt for thirty days after

receipt of the letter when the FINAL COLLECITON NOTICE demanded payment no later than

thirty days from the date of the notice, which would have been November 14, 2018 and would

have cut short Plaintiffs’ thirty days to dispute the debt. That is, the payment deadline could

expire before Plaintiffs had had thirty days to dispute the debt. Please see Exhibit 7.

75. In violation of 15 U.S.C. § 1692g and § 1692e(11), Defendant failed to effectively

convey the notices of Plaintiffs’ verification and dispute rights in both of Defendant’s letters sent

through its DBA Orange Lake Capital Management. Both the WARNING LETTER! and the

FINAL COLLECTION NOTICE mislead Plaintiffs by placing the required verification notices

at the very bottom of the letters in small, ordinary face type, dwarfed by bold faced and boxed

messages—WARNING LETTER! and FINAL COLLECTION NOTICE and Foreclosure


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Attorney—at least three times the size which dominated the letters. Additionally, the two

options accompanied by references to a Foreclosure Attorney provided in both letters stood in

threatening contradiction to the text of the verification notices. Please see Exhibits 3 and 7.

76. In violation of 15 U.S.C. § 1692g, Defendant’s WARNING LETTER! sent through its

DBA Orange Lake Capital Management failed to identify either the creditor or the amount of the

alleged debt. No written notice was sent to Plaintiffs within 5 days of that WARNING LETTER!

containing such information. Please see Exhibit 3.

77. In violation of 15 U.S.C. § 1692g, and § 1692e, Defendant’s FINAL COLLECTION

NOTICE sent through its DBA Orange Lake Capital Management failed to identify the amount

of the alleged debt. Please see Exhibit 7.

78. In violation of 15 U.S.C. § 1692e(10), Defendant’s FINAL COLLECTION NOTICE sent

through its DBA Orange Lake Capital Management mislead Plaintiffs when it demanded

payment no later than 30 days from the date of the letter, which contradicted Plaintiffs’ thirty day

period after receipt of the letter to decide to request validation. Please see Exhibit 7.

79. In violation of 15 U.S.C. § 1692g and § 1692c(b), Defendant continued collection

activity without effectively conveying notices of the Plaintiffs’ verification and dispute rights

and subsequently reporting to the credit reporting agencies, including Experian, on November 1,

2018. Please see Exhibits 3, 7, and 8.

80. In violation of 15 U.S.C. § 1692e(8), Defendant communicated to Experian on November

1, 2018 information of a disputed debt that Defendant knew was disputed.

81. Plaintiffs suffered injury in fact when Defendant violated Plaintiffs’ rights under §§

1692e and 1692g.

82. Plaintiffs suffered further injury when Defendant: damaged Plaintiffs’ consumer credit


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rating and reputation; failed to report the disputed debt to Experian as disputed, exposing

Plaintiffs to a real risk of financial harm caused by inaccurate credit rating; failed to effectively

convey proper § 1692e(11) disclosures, creating the real risk that Plaintiffs may unwittingly

disclose sensitive personal information and/or waive Plaintiffs’ right to verification of the debt;

deceived Plaintiffs regarding the involvement of a foreclosure attorney; stated inaccurately the

steps the Plaintiffs must take to dispute the debt; and failed to disclose the amount of the debt.

VI. SECOND CAUSE OF ACTION: VIOLATIONS OF THE FLORIDA CONSUMER

COLLECTION PRACTICES ACT


and 26 – 68 of this Complaint as if fully set forth herein and further state as follows:

84. Plaintiffs are and have been, at all times relevant to this Complaint, each a “debtor” or a

“consumer.”

85. Defendant is and has been, at all times relevant to this Complaint, a “debt collector”

when Defendant collected or attempted to collect its own debts by using a different name,

Orange Lake Capital Management, while Defendant controlled all aspects of the collection

effort.

86. Plaintiffs purchased the timeshare property for personal, family, or household use. Any

debt arising out of such purchase constitutes a “consumer debt” under the FCCPA.

87. Each of the letters from Defendant’s DBA Orange Lake Capital Management was a

communication under the FCCPA.

88. In violations of FLA. STAT. §§ 559.72(3), 559.72(5) and 559.72(6), Defendant disclosed

to a third party, including Experian, information affecting the debtor’s reputation and credit

worthiness on November 1, 2018, when Defendant knew the debt was disputed but failed to


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report it as disputed. Please see Exhibit 8.

89. In violation of FLA. STAT. § 559.72(9), Defendant claimed, attempted, and threatened to

enforce a debt Defendant knew was not legitimate when Defendant failed to effectively convey

in its letters the Plaintiffs’ rights to verify the validity, or legitimacy, of the debt owed. Please

see Exhibits 3, 5, and 7.

90. Plaintiffs suffered further injury when Defendant: damaged Plaintiffs’ consumer credit

rating and reputation; failed to report the disputed debt to Experian as disputed, exposing

Plaintiffs to a real risk of financial harm caused by inaccurate credit rating; failed to effectively

convey proper § 1692e(11) disclosures, creating the real risk that Plaintiffs may unwittingly

disclose sensitive personal information and/or waive Plaintiffs’ right to verification of the debt;

deceived Plaintiffs regarding the involvement of a foreclosure attorney; stated inaccurately the

steps the Plaintiffs must take to dispute the debt; and failed to disclose the amount of the debt.

VII. THIRD CAUSE OF ACTION: VIOLATION OF THE FLORIDA FICTITIOUS

NAME ACT


and 34– 68 of this Complaint as if fully set forth herein and further state as follows:

92. Defendant OLCC transacts business in Florida under the name Orange Lake Capital

Management.

93. The purpose of the Florida Fictitious Name Act is to inform the public of which

individual or business entity is transacting business under a particular name, as the public has a

right to know with whom it is doing business.

94. Orange Lake Capital Management is not registered as either an incorporated entity or a

fictitious name with the Division of Corporations of the Florida Department of State.


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95. FLA. STAT. § 865.09(3)(a) states that a person may not engage in business under a

fictitious name unless the person first registers the name with the Division of Corporations of the

Florida Department of State.

96. There are at least 78 entities registered using “Orange Lake” in their names. There are

also at least 31 entities with “Orange Lake” in their names registered as fictitious names.

97. Orange Lake Capital Management differs from Defendant OLCC, which is a licensed

incorporated entity.

98. Defendant OLCC violated Florida’s Fictitious Name Act by transacting business in

Florida under an unregistered entity and/or unregistered fictitious name in Orange Lake Capital

Management.

VII. PRAYER FOR RELIEF

99. WHEREFORE, Plaintiffs respectfully request that the Court enter judgment in their favor

as follows:

A. For the FIRST CAUSE OF ACTION:

a) Statutory and Actual damages for Plaintiffs in the amount of $1,000.00 pursuant to 15

U.S.C. 1692k(a)(2)(A);

b) Costs and reasonable attorney’s fees pursuant to 15 U.S.C. 1692k(a)(3); and;

c) Awarding such other and further relief as the Court may deem just and proper.

B. For the SECOND CAUSE OF ACTION:

a) Determining that Defendant violated Fla. Stat. § 559.72(3), (5), (6), and (9) with

respect to Plaintiffs; and

b) Awarding Plaintiffs actual damages, pursuant to Fla. Stat. § 559.77(2); and


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c) Awarding Plaintiffs additional statutory damages, pursuant to Fla. Stat. § 559.77(2), in

the amount of $1,000.00 each; and

d) Awarding Plaintiffs punitive damages, pursuant to Fla. Stat. § 559.77(2); and

e) Awarding Plaintiffs such equitable relief as the Court deems necessary or proper,

including enjoining Defendant from further violations of the FCCPA through the letters

at Exhibit 3-7 and, pursuant to Fla. Stat. § 559.77(2); and

f) Awarding Plaintiffs’ counsel reasonable attorneys’ fees and costs incurred in this

action pursuant to Fla. Stat. § 559.77(2); and

g) Awarding Plaintiffs pre-judgment and post judgment interest as permissible by law;

and

h) Awarding such other and further relief as the Court may deem just and proper.

C. For the THIRD CAUSE OF ACTION:

a) Awarding Plaintiffs statutory damages in the amount of $500.00 pursuant to FLA.

STAT. § 775.083.

b) Awarding Plaintiffs’ counsel reasonable attorney fees and costs incurred in this action

pursuant to FLA. STAT. § 865.09(9)(b).

c) Awarding such other and further relief as the Court may deem just and proper.

VIII. JURY DEMAND

Plaintiff hereby demands that this action be tried before a Jury.

/s/ Brian P. Parker_____ Dated: November 15, 2018 Brian P. Parker – Trial Counsel

Florida Bar No. 0980668 DC CAPITAL LAW, LLP

700 12th Street NW #700 Washington, D.C. 20005 202-793-4433

Attorney for Plaintiffs Chapa


in the united states district court for the middle district of florida … · 2019. 12. 16. ·...

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