10.  As an example of the Defendants’ abhorrent conduct, Defendants have violated several  laws to take advantage of Plaintiff, an 87 year-old widow living on social security in East  Texas who allegedly owed $8200 on a Chase Bank debt.  Defendants Debt Choice and  Iniguez Firm solicited her in order to help her reduce the debt.  In exchange for paying  them over $1750 in fees, the sole “services” provided were two one-paragraph form  letters to Plaintiff’s creditors that were computer generated with electronic signatures.  Debt Choice   11.  One or more of the Defendants placed advertisements to be seen on television in many  states, including Texas, concerning the consolidation of debts and giving the contact  number for Defendant Debt Choice.   12.  Plaintiff saw one such advertisement while watching television in Henderson County,  Texas.  Plaintiff called Debt Choice to seek help with her consumer debts.  Debt Choice  presented, simultaneously, two contracts to Plaintiff for execution: a form contract for  PLAINTIFF’S ORIGINAL CLASS COMPLAINT AND JURY TRIAL DEMAND – Page 5  Debt Choice’s services and a form contract for Defendant Iniguez Firm’s services.  After  repeated calls from Debt Choice, Plaintiff signed both form contracts on April 1, 2009.   13.  The sole “consideration” provided by Debt Choice was the referral to the Iniguez Firm.   However, at the time Plaintiff signed the contract with Debt Choice, Debt Choice had  already referred Plaintiff to Iniguez Firm as can be seen from the presentation to her of  the Iniguez Firm’s form contract.  Thus the sole “consideration” provided by Debt Choice  – the referral to the Iniguez Firm – occurred before she contracted with Debt Choice.   14.  Debt Choice’s referral to the Iniguez Firm was a referral to a lawyer.  The contract  between Plaintiff and Debt Choice provides that Plaintiff’s first payment to Iniguez Firm  will be paid to Debt Choice as a referral fee.  “I understand that making a payment, (sic)  equal to the first program payment is paid to Debt Choice and is not paid to my  creditors.”  The “program payment” was set out in the alleged contract between Plaintiff  and Iniguez Firm.  Under Texas law, Debt Choice was prohibited by law from accepting  money or anything of value to solicit employment for the Iniguez Firm.  TEX. PENAL  59.  Pursuant to Fed. R. Civ. P. 23, Plaintiff brings this suit individually and as representative  of a class of similarly situated persons.  The court should enter an order to certify a  plaintiff class all individuals:   (1) who have either  (a)  signed a “Legal Service Agreement” with the Iniguez Law Firm,  P.C.; or  (b) signed a “Debt Choice Client Agreement” with Debt Choice, Inc.; or  (c) Lexxiom has access to a “Client Data File” for the individual; and  PLAINTIFF’S ORIGINAL CLASS COMPLAINT AND JURY TRIAL DEMAND – Page 14  (2) whose address at the time of the contract or creation of the “Client Data File”  was in Texas according to the records of any one of the Defendants.   60.  Specifically excluded from the class are all Federal judges and members of their families  within the first degree of consanguinity, and the officers, directors and counsel of record  of Defendants, and all employees of any Defendant.   61.  The proposed Plaintiff class meets the prerequisites of a class.   62.  The class is so numerous that joinder of all members is impracticable.  Plaintiff is unable  to state the exact number of the members of the class without the discovery of  information available to Defendants, but upon information and belief, aver that there are  hundreds or thousands of class members. The number of the members of the class makes  it impracticable to bring them all before the court.   63.  There are questions of law and fact common to the class.  These questions predominate  over any questions affecting only individual members of the class.  The questions of fact  and law affecting the class as a whole, include, but are not limited to:   whether the contract between Debt Choice and each class member is void for  lack of consideration;   whether the contract between Debt Choice and each class member is void for  failure of consideration;   whether the Defendant Iniguez Firm was required to register with the Texas  Office of Consumer Credit commissioner under the TDAA.   whether Defendant Iniguez Firm’s failure to meet the requirements of the  TDAA render the contract between Defendant and class members void.  PLAINTIFF’S ORIGINAL CLASS COMPLAINT AND JURY TRIAL DEMAND – Page 15   whether the Defendant Lexxiom was required to register with the Texas  Office of Consumer Credit commissioner under the TDAA.   whether Defendants’ violations of the TDAA entitle the consumers to recover  from Defendants all amounts paid by the consumers;    whether Defendants’ violations of the TDAA entitle the consumers to recover  from Defendants all costs paid by the consumers;   whether Defendants’ violations of the TDAA entitle the class to recover from  Defendants attorney’s fees,     whether Defendants’ violations of the TDAA entitle the class to recover  punitive damages;    whether Defendants’ violation of the TDAA entitle the class to injunctive  relief;   whether Defendants were unjustly enriched by class members;   whether Defendants hold money that belongs to class members in equity and  good conscience;   whether the Defendants engaged in a conspiracy;   whether Defendants are liable to Plaintiff and all class members for all  payments made to Defendants as a result of the conspiracy; and   whether class members are entitled to punitive and exemplary damages  against any or all Defendants.    64.  Plaintiff’s claims are typical of the claims of the class.  The claims have the same  essential characteristics as the claims of the members of the class as a whole and are  PLAINTIFF’S ORIGINAL CLASS COMPLAINT AND JURY TRIAL DEMAND – Page 16  based upon identical legal theories.  It is the same course of conduct that serves as the  gravamen of the claims against Defendants.  The members of the class have suffered the  same type of injury and possess the same interests as Plaintiff.  The single resolution of  these claims would be preferable to a multiplicity of similar actions.   65.  Plaintiff, as the representative party, will fairly and adequately protect the interests of the  class.  The counsel representing Plaintiff and the class are qualified, experienced and  able.   66.  This suit is maintainable as a class action under Fed. R. Civ. P. 23 (b)(2) because  Defendants have acted or refused to act on grounds generally applicable to the class,  thereby making appropriate final injunctive relief with respect to the class as a whole.     67.  This suit is maintainable as a class action under Fed. R. Civ. P. 23(b)(3) because the  questions of law or fact common to the members of the class predominate over any  questions affecting only individual members, and a class action is superior to other  available methods for the fair and efficient adjudication of the controversy.   68.  Predominance.  The questions of law or fact common to the members of the class  predominate over any questions affecting only individual members.  The facts that are  disputed will be resolved without the participation of individual class members.   Plaintiff’s claims do not present individual questions of causation or reliance.  The facts  of Defendants’ practices are common to all members.    69.  Superiority.  A class action is superior to other available methods for the fair and efficient  adjudication of this controversy.  Given the large size of the class, individual adjudication  of the claims would require hundreds of lawsuits.  Moreover, intervention and joinder  PLAINTIFF’S ORIGINAL CLASS COMPLAINT AND JURY TRIAL DEMAND – Page 17  would require the intervention or joinder of hundreds of parties.  Individual adjudication,  intervention, and joinder, therefore, are not reasonable options.  Class treatment is  superior to all other methods of adjudicating the claims of the putative class.   70.  Individual control.  The interests of members of the class in individually controlling the  prosecution or defense of separate actions do not outweigh the benefits of class treatment.   Members of the class possess claims for economic damages that in most instances do not  exceed a few thousand dollars.  Thus, no individual class member possesses an  overriding interest in the right to retain counsel and litigate to conclusion an individual  claim.  In fact, individual adjudication of these claims remains wholly impractical.  The  class members would be compelled to spend substantially more money on attorney’s fees  and case costs to prosecute their individual claim than the amount of each individual  claim.  The interest of members of the class in individually controlling the prosecution or  defense of separate actions, therefore, does not outweigh the benefits of class treatment.   71.  Other factors.  On information and belief, there are few if any other cases pending by or  against members of the class raising the claims asserted herein.  This Court is the  desirable forum for this controversy because the Defendants transact business in this  District.  No significant difficulties are likely to be encountered in the management of a  class action.  Plaintiff will be able to identify class members through discovery of  Defendants’ extensive computer databases storing information regarding past and present  consumer clients.  Thus, no difficulties exist regarding the identification of class  members.  PLAINTIFF’S ORIGINAL CLASS COMPLAINT AND JURY TRIAL DEMAND – Page 18  72.  Under Texas law, past consideration will not support a contract.  Franks v. Brookshire  Bros., Inc., 986 S.W.2d 375, 378 (Tex. App. – Beaumont 1999, no pet.)(“past  consideration will not support a subsequent promise because “consideration” is a  present exchange bargained in return for a promise.”); Alex Sheshunoff Mgmt. Servs.,  L.P. v. Johnson, 209 S.W.3d 644, 659 (Tex. 2006) (Jefferson, C.J., concurring) (noting  that “ ‘past consideration’ is not consideration”); Roark v. Stallworth Oil and Gas, Inc.,  813 S.W.2d 492, 495 -496 (Tex. 1991)(“Consideration is a present exchange bargained  for in return for a promise.”).   73.  “If anything in the classical law of contracts is clear, it is that past consideration is not  good consideration. Any exchange has to be contemporaneous by definition, because  the promise and the consideration for that promise must serve as reciprocal  conventional inducements.”  Trilogy Software, Inc. v. Callidus Software, Inc., 143  S.W.3d 452, 463 (Tex. App. – Austin 2004, pet. den.), quoting Jordan Leibman &  Richard Nathan, The Enforceability of Post-employment Noncompetition Agreements  Formed After At-Will Employment Has Commenced: the “Afterthought” Agreement, 60  S. Cal. L.Rev. 1465, 1528-29 (1987).   74.  The sole alleged consideration for the Debt Choice contract is the past “referral” to the  Iniguez Firm.  As this “referral” was made when Debt Choice presented the Iniguez  Firm contract to Plaintiff, this alleged consideration was made before the contract with  PLAINTIFF’S ORIGINAL CLASS COMPLAINT AND JURY TRIAL DEMAND – Page 19  Debt Choice was entered.   75.  Since past consideration will not support a contract, there was no consideration for the  contract between Plaintiff and Debt Choice.  Similarly, there was no consideration for  the contract between each class member and Debt Choice.   76.  Plaintiff and each class member are entitled to recover from Debt Choice all sums they  paid to Debt Choice either directly or through another Defendant or third party.  77.  If the Court finds that there is a valid and enforceable contract between Defendant Debt  Choice and class members, then Plaintiff pleads in the alternative that there has been a  failure of consideration.   78.  The Iniguez Firm is not licensed in the State of Texas to provide debt management  services.  Thus, the consideration for the contract has failed and/or Debt Choice breached  the contract.   79.  Plaintiff and each class member are entitled to recover from Debt Choice all sums they  paid to Debt Choice either directly or through another Defendant or third party.  PLAINTIFF’S ORIGINAL CLASS COMPLAINT AND JURY TRIAL DEMAND – Page 20  8.  This case is about a scheme and conspiracy by Defendants to take advantage of some of  the most vulnerable members of society – those who are facing a personal economic  crisis and have few options available to them.  Defendants prey on consumers who are  unable to pay their debts by offering “services” to help reduce the debts.  In reality,  PLAINTIFF’S ORIGINAL CLASS COMPLAINT AND JURY TRIAL DEMAND – Page 4  Defendants provide virtually no services and charge unconscionable amounts to victims  like Plaintiff and the class members – all in violation of Texas law.   80.  Plaintiff is a consumer as defined by the TDAA because she is an individual who resides  in this state and entered a debt management service agreement with Iniguez Firm. TEX.  9.  The Texas Legislature has deemed it necessary to protect debtors from unscrupulous  sellers of debt management services.  See, Chapter 394 of the TEXAS FINANCE CODE (The  Debtor Assistance Act, hereinafter the “TDAA”).  “The purpose of [the TDAA] is to  protect consumers who contract for services with debt management services providers.”   TEX. FIN. CODE § 394.201 (a).  Defendants have wholly failed to comply with that statute  and have denied Plaintiff and class members the very protections the Texas Legislature  mandated in passing that law.   91.  Defendant Iniguez is a “debt management service” provider as defined by the TDAA and  subject to that Act because he is arranging or assisting a consumer to arrange for the  distribution of one or more payments to or among one or more creditors of the consumer  in full or partial payment of the consumer's obligations.  TEX. FIN. CODE § 394.202  99.  Defendant Lexxiom is a “debt management service” provider as defined by the TDAA  and subject to that Act because it is arranging or assisting a consumer to arrange for the  distribution of one or more payments to or among one or more creditors of the consumer  in full or partial payment of the consumer's obligations.  TEX. FIN. CODE § 394.202  CLAIM FOR DAMAGES FOR VIOLATIONS OF THE TEXAS FINANCE CODE   CLAIM FOR RELIEF FOR FAILURE OF CONSIDERATION.   CLAIM FOR DAMAGES FOR VIOLATIONS OF THE TEXAS FINANCE CODE   CLAIM FOR RELIEF FOR UNJUST ENRICHMENT.  121.  As outlined above, the “contracts” entered into by Debt Choice and Iniguez Firm are  void.  As such, the Defendants were unjustly enriched when they received monies under  these void contracts.  122.  Plaintiff, on behalf of herself and the class, seeks to recover all monies that Defendants  received as a result of the void contracts.   CLAIM FOR DAMAGES FOR LACK OF CONSIDERATION   CLAIM FOR RELIEF FOR MONEY HAD AND RECEIVED.  117.  As a result of the void contracts between Plaintiff and class members with Debt Choice  and Plaintiff and class members with Iniguez Firm, Defendants came to hold sums of  money which, in equity and good conscience, belong to Plaintiff and the class members.    118.  The contracts between Plaintiff/class members and Debt Choice are void, as detailed  above, and therefore any monies that Defendant Debt Choice received should be returned  to Plaintiff and the class members.  119.  The contracts Plaintiff/class members and Iniguez Firm are void.  Therefore, any monies  received by Defendants as a result of that void contract should be returned to Plaintiff and  the class members.  120.  Plaintiff seeks recovery of all such sums of money received by Defendants on behalf of  herself and the class.  PLAINTIFF’S ORIGINAL CLASS COMPLAINT AND JURY TRIAL DEMAND – Page 28  CLAIM FOR DAMAGES FOR CONSPIRACY  112.  Defendants engaged in a civil conspiracy to obtain money from consumers, including  Plaintiff, for debt management services without the provider of such services being  licensed as required by Texas law.  113.  Each Defendant was aware that one or more of the other Defendants sought to obtain  money from consumers, including Plaintiff, for debt management services without the  provider of such services being licensed as required by Texas law.  114.  Each Defendant formed the specific intent to assist one or more of the other Defendants  to obtain money from consumers, including Plaintiff, for debt management services  without the provider of such services being licensed as required by Texas law.  PLAINTIFF’S ORIGINAL CLASS COMPLAINT AND JURY TRIAL DEMAND – Page 27  115.  Each of the actions by Defendants alleged above were made in furtherance of the  Defendants’ conspiracy to obtain money from consumers, including Plaintiff, for debt  management services without the provider of such services being licensed as required by  Texas law.  116.  Plaintiff and each class member are entitled to recover as actual damages from  Defendants, jointly and severally, all sums they paid to any Defendant either directly or  through another Defendant or third party.  EXEMPLARY DAMAGES  123.  Exemplary damages should be awarded against Defendants because the harm with  respect to which the Plaintiff seeks recovery of exemplary damages resulted from gross  negligence (which means that the Defendants’ acts and/or omissions (i) when viewed objectively  from the Defendants’ standpoint at the time of the acts and/or omissions involved an extreme  degree of risk, considering the probability and magnitude of potential harm to others and (ii)  were such that the Defendants had an actual, subjective awareness of the risk involved, but  nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others).  INJUNCTION AGAINST VIOLATIONS OF THE TEXAS FINANCE CODE  109.  Defendant Lexxiom’s violations of the TDAA entitle Plaintiff and the class to injunctive  relief. The TDAA provides for the following relief:  PLAINTIFF’S ORIGINAL CLASS COMPLAINT AND JURY TRIAL DEMAND – Page 26  An aggrieved consumer may sue for injunctive and other appropriate equitable  relief to stop a person from violating this subchapter.  TEX. FIN. CODE § 394.215 (d).  110.  Plaintiff, individually and as representative of the class, asks the Court to enter a  permanent injunction against Lexxiom prohibiting if from entering any contract for debt  management services with a person located in Texas, performing any debt management  services regarding a person located in Texas, or assisting any other person or entity in  performing any debt management services regarding a person located in Texas.  111.  Plaintiff, individually and as representative of the class, has been forced to retain  counsel to assist in bringing this action.  As such, Defendant Iniguez Firm is liable to  the Plaintiff and the class for reasonable attorneys’ fees and costs of this action.  INJUNCTION AGAINST VIOLATIONS OF THE TEXAS FINANCE CODE  