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HomeMy WebLinkAbout07-0464~7 _ .~~ ~, C'~~ ~(~`r~~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Judy E. Smith Sharon Road Enola, PA 17025 Alliance One Receivable Mgt., Inc. a/k/a Alliance One, Inc. 1684 Woodlands Drive, Suite 150 Maumee, OH 43537 and Alliance Onc, Inc. 717 Constitution Drive, Suite 202 Exton, PA 19341 Plaintiff(s) & Addresses Defendant(s) & Addresses PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. Writ of Summons shall be issued and forwarded to (X) Attorney OSheriff. Deanna Lynn Saracco, Esquire 76 Greenmont Drive Enola, Pennsylvania 17025 Phone 717-732-3750 SaraccoLaw@aol.com Signature of Attorney Dated: _ 1 / 19/07 WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HA HAVE COMMENCED AN ACTION AGAINST YOU. Proth otary Dated: p^f Deputy By: ~' _~~^\ 1 r lV .~ ~` C..,. ~ ;'._ l.J' ~: ,::. f.:..'.. N r...r c.~ ^~V V p `~ •C~ ~.~T I ~~ ~~ R'I r _~ ~ Y~ ~~i _ ( _ •-i ~ l„~ t~ =-.-: ...~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA June E. Smith, C~coR2~cTEA~ No: 07-464 Plaintiff, v. Civil Term Alliance One Receivable Mgt., Inc., a/k/a Jury Trial Demanded Alliance One, Inc., Defendant. AMENDED COMPLAINT GENERAL ALLEGATIONS 1. Jurisdiction for this Action is asserted under the Pennsylvania Fair Credit Extension Uniformity Act, 73 P.S. §2270 et seq. 2. Defendant is a business entity engaged in the business of collecting consumer debts in this Commonwealth with a mailing address 1684 Woodlands Drive, Suite, 150, Maumee, Ohio, 43537, and 717 Constitution Drive, Suite 202, Exton, Pennsylvania, 19341 3. Violating provisions of the Fair Debt Collection Practices Act also violate the Pennsylvania FCEU, 73 P.S. §2270.4(a). 4. On or about January 2007, agents of the Defendant contacted Plaintiff and by telephone. 5. Defendant discussed the alleged debt with Plaintiffs sister, without the consent of the Plaintiff. 6. During the course of the conversations, the agents of the defendant insulted the age, education and integrity of the Plaintiff. 7. The Plaintiff s husband died after which time, there was a reduction of income. 8. Defendant further stated that they were charging interest and that every month, the amount of the alleged debt would substantially increase. 9. Plaintiff has no contract or other written agreement to pay interest to any of the named Defendant. 10. Plaintiff believes and therefore avers that Defendant does not have a valid assignment and is therefore, unlawfully attempting to collect the alleged debt. 11. Plaintiff believes and therefore avers that Defendant added interest to the alleged debt, in violation of Pennsylvania law. 12. Plaintiff disputed the alleged debt. 13. Defendant offered Plaintiff a settlement offer despite being told that the debt was in dispute. 14. Plaintiff believes and therefore avers that making a settlement offer is a prelude to litigation and as such, Plaintiff believed that litigation was imminent. 15. Defendant rarely, if ever, files suit against consumer debtors as such, any inference of litigation is a violation of the FDCPA. COUNT I -PENNSYLVANIA FAIR CREDIT EXTENSION UNIFORMITY ACT 73 P.S. X2270 et sect. 16. Plaintiff hereby incorporates the foregoing as if fully set forth herein. 17. The FDCPA states that a violation of state law is a violation of the FDCPA. 15 U.S.C. §1692n. Pennsylvania law states, in pertinent part, 18 Pa.C.S. §7311: "Unlawful collection agency practices. (a) Assignment of claims. It is lawful for a collection agency, for the purpose of collecting or enforcing the payment thereof, to take an assignment of any such claim from a creditor, if all of the following apply: 1. The assignment between the creditors and collection agency is in writing; 2. The original agreement between the creditor and debtor does not prohibit assignments. 3. The collection agency complies with the act of December 17, 1968... (b.l)Unfair or deceptive methods. It is unlawful for a collector to collect any amount, including any interest, fee, charge or expense incidental to the principal obligation, unless such amount is expressly provided in the agreement creating the debt or is permitted by law." 18. Plaintiff believes and therefore avers that Defendant violated this provision of Pennsylvania law. 19. Plaintiff further believes that Defendant violated provisions of the Fair Debt Collection Practices Act, as alleged in the General Allegations and Count II, as such, said violated also violate the Pennsylvania FCEU, 73 P.S. §2270.4(a). 20. That Defendant engaged in unfair methods of competition and unfair or deceptive acts or practices, as defined by FCEU and the regulations, including but not limited to, violations of 37 Pa.Code §§303.3(3), 303.3(14), 303.3(18), 303.6 and 73 P.S. §201-2(4). 21. Defendant' acts as described herein were done with malicious, intentional, willful, reckless, negligent and wanton disregazd for Plaintiff's rights with the purpose of coercing Plaintiff to pay the alleged debt. 22. As a result of the above violations, Plaintiff is entitled to statutory, actual, treble and punitive damages and attorney's fees and costs, in an amount of not less that $30,000.00. WHEREFORE, plaintiff requests that this Honorable Court issue judgment on his behalf and against Defendant for a statutory penalty, treble damages, punitive damages, attorney fees and costs pursuant to 73 P.S. §2270.5. COUNT II -FAIR DEBT COLLECTION PRACTICE ACT 15 U.S.C. §1692 ET SEQ. 23. Jurisdiction for this action is asserted pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. §1692, et seq. ("FDCPA"), particularly 15 U.S.C. §1692k(d) and 28 U.S.C. §1337. 24. Venue lies in this District pursuant to 28 U.S.C. 1391(b). 25. Plaintiff is an individual and consumer pursuant to 15 U.S.C. § 1692a(6). 26. Defendant aze debt collectors as defined by 15 U.S.C. 11692a(3). 27. Defendant contacted Plaintiff during January 2007, which are "communications" relating to a "debt" as defined by 15 U.S.C. 11692a(2) and 1692a(5). 28. At all pertinent times hereto, the Defendant were hired to collect a debt relating to a consumer transaction. (Hereinafter the "alleged debt.") 29. Defendant communicated with plaintiff on or after one year before the date of this action, in connection with collection efforts, by letters, telephone contact or other documents, with regard to plaintiff's alleged debt. 30. FDCPA states that a violation of state law is a violation of the FDCPA. 15 U.S.C. §1692n. Defendant violated Pennsylvania law states,l8 Pa.C.S. §7311, as stated herein. 31. The FDCPA states, a debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. 15 U.S.C. § 1692f. Defendant violated this section of the FDCPA. 32. The Defendants violated 15 U.S.C. § 1692c(b) by contacting a third party, without the Plaintiffs prior consent. 33. The Defendants violated 15 U.S.C. § 1692e(2)(A), (5) and (10) by misrepresenting the imminence of legal action by Defendants. 34. At all times pertinent hereto, the Defendants made all contacts to the Plaintiff by telephone. 35. The Defendants violated 15 U.S.C. §1692e(11) by failing to provide the consumer with the proper warning, "this is an attempt to collect a debt, any information obtained will be used for that purpose," during the initial telephone communications and in subsequent communications. 36. Defendants violated 15 U.S.C. § 16928, by failing to provide the consumer with the proper validation notice within five days of the initial communication. 37. Defendants violated 15 U.S.C. §16928 by demanding payment without providing the proper consumer warnings, thus, defendants overshadowed the FDCPA. 38. Defendants violated 15 U.S.C. § 1692e(7) by implying, during the course of the conversation, that the consumer was in "trouble with the law," and/or "committed fraud." 39. Defendants violated 15 U.S.C. § 1692f, by attempting to collect a time barred debt. 40. Defendants violated 15 U.S.C. § 1692f, by threatening and/or filing suit without proper legal authority in Pennsylvania. 41. Defendants violated 15 U.S.C. § 1692d(2) by using profane and abusive language towards the consumer. 42. Defendants violated 15 U.S.C. § 1692d(5) by causing the phone to ring and engaging the consumer in repeated conversations. 43. Defendants violated 15 U.S.C. § 1692b(2) by communicating with third parties regarding the alleged debt, without the consent of the consumer. 44. Defendants violated 15 U.S.C. § 1692b(3) by communicating with persons other than the Plaintiff more than one time, without consent and without the consent of the Plaintiff. 45. The FDCPA states, a debt collector may not use false, deceptive or misleading representation or means in connection with the collection of any debt. 15 U.S.C. § 1692e(5) and (10). Defendant violated these sections of the FDCPA. 46. The FDCPA states, a debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. 15 U.S.C. § 1692£ Defendant violated this section of the FDCPA. 47. The FDCPA states, a debt collector may not use false, deceptive or misleading representation or means in connection with the collection of any debt. 15 U.S.C. §1692e. Defendant violated this section of the FDCPA. 48. The FDCPA states, a debt collector may not engage in any conduct the natural consequence of which is to hazass, oppress or abuse any person in connection with the collection of a debt. 15 U.S.C. § 1692d. Defendant violated this section of the FDCPA. 49. The FDCPA states, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer. 15 U.S.C. § 1692c(b). Defendant violated this section of the FDCPA. 50. The Defendant violated 15 U.S.C. § 1692c(b) by contacting a third party, without the Plaintiff s prior consent. 51. The Defendant violated 15 U.S.C. § 1692e(2)(A), (5) and (10) by misrepresenting the imminence of legal action by Defendant. 52. The Defendant violated 15 U.S.C. § 1692c by contacting the Plaintiff after the Plaintiff had requested the Defendant cease communication with the Plaintiff. 53. The Defendant violated 15 U.S.C. § 1692g, by failing to give the required notices to the Plaintiff in the initial communication. 54. At all times pertinent hereto, the initial communication was made by telephone. 55. At all times pertinent hereto, the Plaintiff was unable to dispute the alleged debt. 56. The FDCPA provides certain rights to the consumer regarding his/her right to dispute the alleged debt, 15 U.S.C. §1692g. Defendant violated this section of the FDCPA. 57. The FDCPA states, a debt collector may not communicate with a consumer at the consumer's place of employment if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communications. 15 U.S.C. § 1692c(a)(3). Defendant violated this section of the FDCPA. 58. The FDCPA states, it is unlawful to add interest, charges, fees or other costs unless authorized by law or contract; Plaintiff does not have a contract with Defendant. 15 U.S.C. §1692f and §1692e(2)(A) and (B). Defendant violated this section of the FDCPA. 59. Defendant's collection communications were intentionally confusing, misleading and otherwise deceptive to the Plaintiffs, in violation of 15 U.S.C. §1692e(5) and (10), § 1692f(8) and § 1692j, see also, In re Belile, 208 B.R. 658 (E.D. Pa 1977). 60. Defendant's communications created a false sense of urgency on the past of Plaintiff in violation of the FDCPA. Tolentino v. Friedman, 833 F. Supp. 697 (N.D. Ill. 1993); Sluys v. Hand, 831 F. Supp. 321 (S.D.N.Y. 1993); and Rosa v. Gaynor, 784 F. Supp 1 (D. Conn. 1989). 61. Any threat of litigation is false if the Defendant rarely, sues consumer debtors or if the Defendant did not intend to sue the Plaintiff. Bently v. Great Lakes Collection Bureau, 6 F.3d 62 (2d Cir. 1998). See also, 15 U.S.C. §1692e(5), 15 U.S.C. §1692e(10). 62. At all time pertinent hereto, the Defendant was acting by and through its agents, servants and/or employees, who were acting within the scope and course of their employment, and under the direct supervision and control of the Defendant herein. 63. At all times pertinent hereto, the conduct of Defendant as well as their agents, servants, and/or employees, was malicious, intentional, willful, reckless, negligent and in wanton disregazd for federal and state law and the rights of the Plaintiff herein. 64. Plaintiff believes and therefore avers that the Defendant's agents made false threats of litigation. 65. Defendant's threat of litigation was false because Defendant does not routinely file suit against consumer debtors, in violation of 15 U.S.C. §1692e(5) and (10). 66. Defendant's letters were intentionally confusing and deceptive, in violation of 15 U.S.C. §1692e(5) and (10), §1692f(8) and §1692j. 67. Plaintiff was confused, deceived and believed that litigation was imminent if settlement was not made. 68. The above mentioned acts with supporting cases demonstrates that the conduct of Defendant rises to the level needed for punitive damages. 69. Defendant, in its collection efforts, violated the FDCPA, inter adia, Sections 1692, b, c, d, e, f, g, h, and/or n. 70. Defendant, in its collection efforts, used false or deceptive acts and intended to oppress and harass plaintiff. 71. That, as a result of the wrongful tactics of Defendant as aforementioned, plaintiff has been subjected to anxiety, hazassment, intimidation and annoyance for which compensation is sought. WHEREFORE, Plaintiff respectfully requests that his Honorable Court enter judgment on Plaintiff s behalf and against Defendant and issue an Order: (A) Award Plaintiff statutory damages in the amount of One Thousand Dollars ($1,000.00) for each violation of the FDCPA or each separate and discrete incident in which Defendant have violated the FDCPA. (B) Award Plaintiff general damages and punitive damages for anxiety, harassment, and intimidation directed at him in an amount not less than Ten Thousand Dollazs ($10,000.00), as well as the repetitive nature of Defendant form letters. ©) Award Plaintiff costs of this litigation, including a reasonable attorney's fee at a rate of $350.00 per hour, for hours reasonably expended by Plaintiffls attorney in vindicating Plaintiff s rights under the FDCPA, permitted by 15 U.S.C. § 1692k(a)(3). (D) Award declaratory and injunctive relief, and such other relief as this Honorable Court deems necessary and proper or law or equity may provide. COUNT IV -FAIR CREDIT REPORTING ACT 72. Plaintiff hereby incorporates the foregoing as if fully set forth herein. 73. The Fair Credit Reporting at, 15 U.S.C. § 1681 b prohibits the improper use of a consumer's credit information. 74. Plaintiff believes and therefore avers that the Defendant reported false, misleading and/or inaccurate information on Plaintiff's credit report, without first validating the alleged debt. 75. Plaintiff believes and therefore avers that the Defendant reviewed Plaintiff's credit report without proper authority or assignment of the alleged debt. WHEREFORE, Plaintiff respectfully requests that his Honorable Court enter judgment for Plaintiff and against defendant sand issue an Order: (A) Award Plaintiff statutory damages in the amount of One Thousand Dollars ($1,000.00) for each violation of the FCRA or each sepazate and discrete incident in which Defendant have violated the FCRA. 15 U.S.C. §1681n(a)(1)(A). (B) Award Plaintiff general damages and punitive damages for anxiety, harassment, and intimidation directed at Plaintiff in an amount not less than Ten Thousand Dollazs ($10,000.00), as well as the repetitive nature of Defendant form letters. C) Awazd Plaintiff costs of this litigation, including a reasonable attorney's fee at a rate of $350.00/hour for hours reasonably expended Plaintiff's attorney in vindicating his rights under the FDCPA, fitted by 15 U.S.C. §1681n(3)C). Dated:2/16/07 By: /s/D Sazacco Deanna L acco, Attorney for Plaintiff 76 Greenmont Drive, Enola, PA 17025 Telephone 717-732-3750 Fax 717-728-9498 Email: SazaccoLaw~a aol.com Certificate of Service: I here by certify that a true and correct copy of the foregoing was served on Defendant via U.S. Mail, postage prepaid as follows: Andrew M. Schwartz Marshall Dennehey Warner Coleman & Goggin 1845 Walnut Street, 17`t` Floor Philadelphia, PA 19103 2/15/06 By /s/De ynn Sazacco ~~ ~ -c3 i;~' f--'i rr ~ .`.` .t ~ if ? ~ ~ _c....~ , i,,= 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA June E. Smith, No: 07-464 Plaintiff, v. Civil Term Alliance One Receivable Mgt., Inc., a/k/a Jury Trial Demanded Alliance One, Inc., Defendant. PRAECIPE TO CORRECT PLAINTIFF'S NAME IN CAPTION AND NOW comes Plaintiff, by and through her counsel, Deanna Lynn Saracco, and files this Praecipe to Correct the Plaintiff's name in the above captioned matter. This was a clerical error and Plaintiff's counsel apologized for any inconvenience this may have caused. Please correct the caption. Dated:2/21 /07 By: /s/ • L~ Deanna Lynn Saracco, Attorney for Plaintiff 76 Greenmont Drive, Enola, PA 17025 Telephone 717-732-3750 Fax 717-728-9498 Email: SaraccoLaw@aol.com Certificate of Service: I here by certify that a true and correct copy of the foregoing was served on Defendant via U.S. Mail, postage prepaid as follows: Andrew M. Schwartz Marshall Dennehey Warner Coleman & Goggin 1845 Walnut Street, 17`" Floor Philadelphia, PA 19103 Dated: 2/21 /06 By /s/D a a y ~S_ a ~? N v c7rt ~-... ' ~ ' ~ ~ ' -?"3 is = ~s - i t r.- ~./~~~ Lr~s f yam) ~ _z ,~ ~~ i , ...('t - ~.... ~} IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA June E. Smith, Plaintiff, No: 07-464 v. Alliance One Receivable Mgt., Inc., a/k/a Alliance One, Inc., Defendant. Civil Term Jury Trial Demanded PRAECIPE TO WITHDRAW WITH PREJUDICE And now comes Plaintiff, by and through her counsel, Deanna Lynn Saracco, and files this Praecipe to Withdraw the above captioned matter, with prejudice as the parties have amicably settled their dispute. This case should be discontinued and you may mark this case CLOSED. Respectfully submitted, Dated: 4/16/07 Deanna Lynn Saracco, Attorney for Plaintiff 76 Greenmont Drive Enola, PA 17025 717-732-3750 Certificate of Service: i hereby certify that I served, via U. S. Mail, a copy of the forgoing, on the defendant as follows: Peggy M. Morcom Marshall Dennehey Warner Coleman and Goggin 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 Dated: 416/07 ,~.m. Deanna Lynn Saracco `,'`' ~-> ~, `F'{ ~ ~~ ~~ --^{ _ '~ -" 1 ~'v ~~ f ~v ~ `. ~' - j 3 ~ - ^P ~~ b