HomeMy WebLinkAbout97-00871
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MAR 2 3 1999
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CAPITAL RECOVERY
ASSOCIATES. INC,
Plaintiff,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
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BYBEE & SHAW,
FLOYD BYBEE. AND
MICHAEL SHAW
Defendants
No 97.871 CIVIL TERM
AND NOW, this
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ORDER
ap-u,(
day of Mareh. it is hereby Ordercd that Plaintiffs Pctition
to Lift the Stay crcatcd by thc Deccmber 18. 1998. Order. be GRANTED,
IT IS FURTHER ORDERED. that Defendants Brief in Support for its Pctition for Rclicf
from Default Judgment be filed on or beforc /11 't;;.. J <{ I Cj qr; . 1999. and Plaintiffs Brief in
1/ .
Opposition to Defcndants Petition for Relief from Dcfault Judgmcnt be filcd on or bcforc
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'111tU;j J;{ / , 1999, and thc casc listed for Argumcnt Court in the 5ee8ns wecl( ef
May, 1999,
BY THE COURT
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Dist:
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Deanna Lynn Smith. Esquire
76 Greenmont Drive
Enola. Pennsylvania 17025
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Bybee & Shaw
3910 S Rural Road. Ste Bl
Tempe, AZ 85282
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CAPITAL RECOVERY
ASSOCIATES, INC,
PlaintilT,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY.
PENNSYLVANIA
v,
BYBEE & SHAW,
FLOYD BYBEE, AND
MICHAEL SHA W
Defendants
No 97.871 CIVIL TERM
PETITION TO LIFT STAY
AND NOW comes PlaintilT, Capital Recovery Associates, Inc" by and through its
allomey, Deanna Lynn Smith, and submits the following in support of the herein requested relief:
1) On December 18, 1998, an Order was granted permilling Defendants the opportunity to
litigate their Petition for Relief from Default Judgment, Petition filed December 15, 1998,
(Order Allached at Exhibit A,)
2) The Default Judgment was entered against Defendants on August 7, 1997,
3) The Order at Paragraph 7, stayed all proceedings pending the outcome of Defendant's
Motion to Open the Judgment.
4) On September 25, 1998, Plaintiff, by and through its allomeys FENNEMORE CRAIG,
Allomey Keith L. Hendricks. 3003 North Central A venue, Phoenix, Arizona, 85012-
2913, filed a Notice of Filing Foreign Judgment in an allemptto begin collection of the
Default Judgment. (See Filing of Foreign Judgment. Allached to Exhibit B. Affidavit of
Hendricks,)
5) On September 3. 1998. Mr. Hendricks sent a Icttcr to Dcfendants informing them that if
the judgment were not paid, the judgment would be domesticated, (See attached affidavit
of Attorney Hendricks. Exhibit C,)
6) On October 29, 1998, the Clerk of the Arizona Superior Court issued a writ of general
execution against Defendants, (See Affidavit of Hendricks,)
7) On October 29, 1998, a deputy ofthc Maricopa County Sheriff's Office scrved a copy of
the Writ on defendants, (Sce Affidavit of Hendricks,)
8) On December 7, 1998, Attorney Hendricks caused a subpoena to be issued against
Defendants, (See Affidavit of Hendricks,)
9) After the subpoenas were served, an attorney from Arizona contacted Allorney Hendricks
indicating that she represented Defendants and requesting additional time be given for
Defendants' to comply with the Subpoena and depositions, At no time did this attorney
infonn Allorney Hendricks of a Pennsylvania action, (See Affidavit of Hcndricks,)
10) Defcndants ignored a properly issued and served subpoena in Arizona,
11) Under Arizona law, in order to stay execution of a judgmcnt. bond must be posted,
A,R,S, ~12-1704(A),
12) Defendants did not post bond in this action,
13) Defendants filed a Motion to Stay execution of the proceedings in Arizona, based on this
Honorable Court's December 18, 1998. Order,
14) Defendants received an order staying the execution of the judgment in Arizona. despite
ignoring a subpoena and not posting bond, on February 18. 1999, (See Attached Arizona
Order, Exhibit C,)
,
15) PlaintilTnegotiated with Defendants' attorney,lmblum, in good faith the extension of
time in order to conduct discovery, (See Ordcr of Judge Hess dated February 10, 1999,
Exhibit D,)
16) PlaintilTbelieves and therefore avers that Defendants acted in bad faith and hired Imblum
only to cause further delay in the execution of the judgment.
17) Defendants failed to supply any of the requested documents which were requested in
January of 1999,
18) PlaintilTbelieves and therefore avers that Defendants never intended to litigate this
matter,
19) PlaintilT believes and therefore avers that Defendants intended to use this Honorable
Court merely to delay execution of the Judgment.
20) PlaintilT believes and therefore avers that Dcfendants attorncy, Imblum, acted in good
faith.
21) During Imblum's representation, dcpositions were conducted, including the Deposition of
Mr, Shaw, a Defendant.
22) In his deposition, Mr, Shaw indicated that hc knew about the Default Judgment on or
about August 7, 1998; admitted to receiving the 10-day notice in May of 1998; admitted
to making telephone calls. sending facsimilcs and other written correspondence into
Pennsylvania, admitted to defending this case while in the Middle District of
Pennsylvania and admitted that they did not act on the default judgment because they did
not believe PlaintilTwould not execute on same, (Deposition to be provided,)
23) Plaintiffbelicves and therefore avers that Dcfendants will fail in their attcmpt to obtain
rclief from thc Dcfault Judgmcnt bccausc thcy had knowlcdgc of thc Default. failed to act
in a timely manncr and have no reasonable argumcnt as Defendant Shaw admittcd to
numcrous contacts with Pcnnsylvania,
24) Dcfcndants waitcd ovcr onc and onc/halfyears to attempt to opcn/strikc thc delimit
judgcment.
25) Dcfcndants knew about thc 10-day notice and subsequent August 7. 1998, Ordcr in a
timely manncr,
26) Defendants waited until the ShcriffofMaricopa County, Arizona. came to execute on thc
Judgment to seek relief in Pennsylvania, (See Sherifrs Affidavit, last page of Hendircks
Affidavit, Exhibit B.)
27) Plaintiff respectfully requcsts that this Honorable Court lift the stay created in the
December 18. 1998, Order as Dcfendants acted in bad faith,
28) Plaintiff respectfully requests that this Honorable Court lift thc stay creatcd in the
Deccmbcr 18, 1998, Order as Dcfendants ignored a subpocna in Arizona and
misrepresented information to Plaintiffs attorney in Arizona,
29) Plaintiff respectfully requests that this Honorablc Court lift thc stay created in the
December 18. 1998, Order as Defendants failed to post bond as required by Arizona law,
30) PlaintiO'rcspectfully rcquests that this Honorablc Court lift the stay creatcd in the
December 18, 1998, Order as Defendants uscd this Honorablc Court merely to further
delay cxecution of the Judgmcnt.
31) Plaintiffbelievcs and thcrcforc avcrs that it will prcvail in its opposition to seck relief
from the Default Judgment.
32) Plaintiff believes and therefore avers tllUt it will be prejudiced if the uction in Arizonu is
not pennilled to continue in a timely manner,
33) Plaintiff believes and therefore avers Ihatl11uch of the requested discovery for this Action
was also requested in the subpoena issued in Arizona,
34) Defendants failed to comply with eithcr discovcry,
35) Plaintiff believes and therefore avers that continuing the Action in Arizona will only
expedite discovery in this Action,
36) Plaintiff believes and therefore avers that continuing the Action in Arizona will not result
in Defendants having to pay monies or lose property prior to resolution in this Honorable
Court,
37) Plaintiff believes and therefore avers that lifting the stay created in the December IS,
1995, Order will prevent Defendants from further delaying this Action,
3S) Plaintiff will not grant another extension and expects this Case to be listed for Argument
Court by the second week of May, 1999,
39) Plaintiff will have its brief completed, with or without discovery in a timely manner for
the Argument Court judges' review,
40) Plaintiff also requests that this Honorable Court issue a briefing schedule so that
Defendants cannot use their non.payment of their attorney as an excuse for failure to file
a brief and thus further delaying this Action, (See Withdrawal of Appearance of 1mblum
Exhibit E,)
5, Whcn I rcturned Mr, Bybcc's call, I infonned him that I thought that such a
request was improper, I infonned him that although I might dclay thc domestication ofthc
judgment for a few days as a mattcr of courtesy, I did not think it was a proper request to
essentially seek an open extension of time to challcngc the judgment, given the fact that he had
known about the judgment for over a ycar and had not ycttaken any action to seck to sct it aside,
Mr, Bybee did not object to or challengc my statcmcntthat hc had known about the judgment for
over a year,
6, I have had no o\her oral communication with Mcssrs, Bybec or Shaw,
7, On or about September 25, 1998, I filed the papers neecssary to effectuate the
domestication of the Pennsylvaniajudgmcnl in Arizona, A copy of those papers is attached as
Exhibit B, On the same date, I sent a copy ofthesc papcrs to Messrs, Bybec and Shaw and the
law linn of Bybee & Shaw, In addition, we filed a proofofmailing with the Arizona court,
8. On or about October 29, 1998, the Clerk of thc Arizona Superior Court for
Maricopa County issued a writ of general execution against Messrs, Bybcc and Shaw and the law
linn of Bybee & Shaw,
9, On or after October 29, 1998, a deputy of the Maricopa County Sheriffs Office
served a copy of this writ of general execution on the law linn of Bybee & Shaw. A copy of the
proof of service of process is attached as Exhibit C,
10, On or about December 7,1998, I noticed several depositions to aid in the
enforcement ofthejudgmenl. I also caused subpoenas to be issued, It is my understanding that
these subpoenas were served on Messrs, Bybee and Shaw and the law linn of Bybee & Shaw on
or about December 8, 1998, The depositions were scheduled to take place on December 23,
1998 at my office,
2
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MARICOPA COUNTY SHERIFF'S OFFICE
Civil Process Section
102 Weal Madison Slreot
Phoenix. Arizona 8'003.2292
CAPITAL RECOVERY ASSOCUTES IN
vs.
BYBEE 6 SHAW
STATE OF ARIZONA ) Case # CV9817S49
) 55.
county of Maricopa ) Docket # C0138022
1, JOSEPH H. ARPAIO, SHERIFF OF MARICOPA COUNTY, ARIZONA, DO HEREBY
CERTIFY THAT 1 RECEIVED THE WITHIN WRIT OF GENERAL EXECUTION ON THE 29TH DAY
OF OCTOBER, 1998, SERVED THE DEFENDANT WITH A COPY OF THE WRIT, AND HAVING
BEEN UNABLE TO LOCATE SUFFICIENT UNENCUMBERED PROPERTY TO LEVY, 1 HEREWITH
RETURN SAID WRIT OF GENERAL EXECUTION TO THE CLERK OF THE SUPERIOR COURT OF
HARICOPA COUNTY, UNSATISFIED.
I . ED KLH
NOV ~ 'J 1999
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DATED THIS 8TH DAY OF NOVEMBER, 1998.
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Depot" t .............. S
L.ss Hil.lge ( ) .... S
Return ............... S
Additionll Fe.s ...... S
125.00
18.00
10.00
10.00
REFUND
....... S
87.00
Joseph H. Arpl10
Mlricopl County Sh.riff
By
D. SHEETS, 1150827, Deputy Sheriff
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CVLF003
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SUPERIOR COURT OF ARIZONA
IoWlICOPA COlM'Il'Y
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IP CV 98-17'49
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CAPITAL 1U!:COVJmY AUOC%A'l'EB,
DC.
kith L. HendriclCs, U27'O
v.
BYBU Ii SHAW, et; al.
KlCRABL C. SHAW
PLGYD It. bXImA
3910 S RllItAL JIQAD S'l'!l 11-1
TEIIPE AZ 8'0182
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'1'he cow:t bas received and considared De1:~' Motion
to suy Enttln:_t: tit JUdglleJtt aJld Uae RolJponH.
'.rha Court: has also considered tJle provisions D~ A.R.S.
U3-1704 (A). :It; appears that: in 1:h1s case, the pannsylvanla Cl::lI1rt
did in faen: Mur an Order having tbo errect tlf a stay or lbrecnlt:ion
of the JUdpent: which vas previouly ent.A4 by the l'ennllylvania
Court. The Pentlsylvanl. o~" in liI\IUtion. wl1iah b: da1:e4 De(!_h.r
18, Ultll, was entered after Defendan1:1l rUed a Kotlon t:o Set AIlic!Q
tba o.fault Jud'J1lent whiob. VAll ~er.d in l'ennaylvanill. It would
not appear that pllrllqraph 7 of' the order would rerer to anything'
oth_ t:blUl a Stay of BxQcUtolon of t:hll .Tudgaent. Thus, unless and
untU tho PannarlvlUlla Court: clarities tJl.e Decll'lllber 18, 1511'8 ONel:',
this co1.lrt int:axprsts _ 118 being in the nature of an ordllr
stayin'it execution of the 1'ennliylvania Jud~.
It further appears that the Pennaylvanla COW;1; 414 not
condition antry of toh. at:ay upon tbe postoin", of any bone! 01:' otbeJ;
security for the sat:1sfac'tion of the J\1dg11ent. The authority cite
hy Detendants appeilrlil to enable 1;I1e PGnnsylvania Court to eDtlit' an
order in thD nat:ura of a Suy of Exeoution wlthOllt the requU~t
ot . po$ting or security. 'l'hia CDl1rt is, tberefore, of t:he opinion
tI1.at uat; portion of 112-1704(~) bas hMn pt.
Continued ,....1
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FEB 24 '99 1~:51 FR "3
602 915 5999 TO 0503801430011717 P.04/04
SUPERIOR COURT OF ARIZONA
WJo'JeClPA COUNTY
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11tE HONORAIltE JOtIN H. 8I!lII!L
III CV 98-17549
RBI CAPIDL IUICOVllRY ASSOCIATES v. BYJlUIf , SHAW
ContlJlued
F" the fOrlMioing reuone,
IT 18 nDnOl>KD guyi.ng enfo~t of tho Poreign ",udgaant
in this c... unt~l fUrtftGr ord.r ot tho court.
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In the Court of Common Pleas of
Cumberland County, Pennsylvania
VS,
<"1>0' 1 /J,.. Judgment in fa\'or of PJainLifl on h-hh_U_UhU____
6.lj2t.'.t:;.'!:>:?...!':~.!!!)l-{(!.z..fY>:-.... !'~!J!lWIL,;J /1 . t 'I ('1' 7 . I"
(' 'h! Y LIJ!:,1f!;'........tI_._..__.._ lor $:!.'I..~!!:
.-lky..d.n?!I.k!~(...~f..-.t!/!{..t2/jL. ~.2~('.,.~..._ 27. \>/1 {} I
.,', :<;0, .::.0..' ....lx.!___u_. Tenn, 19...__.
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Enlered ----.,-:.J~(..:nn..:-u---u_____ 19....:.
................ ~......-............. '.'.'.'.'.'.'.~; ;;!~~~,-;.'. ~;:';~:;-~;: ;.~; ~I- (2~~r:~c.:~ 1::".. .:&.t ~.,......... _.... _.... Plaintifl
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in the aba\': Judsrm:nt. do 3pPl'ar and acknowh:d;e th:u I' f -, tha day ha\'c had and receivcod and
Irorn cl/bt.t;.x:!W..IJ.2' at 1 /1l.,.~a_1_1.2~c.It2f !:.sl1'f!.. .tlct;.?'!. f!x/11:. .o.t!!l!C /?a~/ ~~'c )
U1C d=:~nd:J.nt in the abo\'~ Jud;:n':rHj full p:\yment :lnd ',:lh!Jction of the SJr;:e, wit!} intcrc't Jr.d lOSU, Jod desired lh:u
s:uisCi1cuon thereCorc sh:LU be entered upon the recorc!s lhereor.
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And further, ..Y do hereby JuthOrlZC and empoweL-U-un.--uhu__U:..:,r___nu..nu____....__n__
.......__n................._ theProthonotJry of SJid Court, to JppcJr -nR,-c_m_~n______n__uhhu.._...._________
Jod in My n,1rne :lnd stCJd to enter full sJtisbc:1on upon the record of SJid Judgment. :LS full}' .:lnd cCfectually. to JII
intents Jnd purposes. JS I could wcre I pt:!"~on;'\lIy p~esent in person 10 do so, And for so doing this shJII be
)'our suHicient W:Lrr:Lnl of Juthority,
[0 te.nimoD)' whereof, r
C3l' 01 .u_.__._.0~~.c~~______u_________....._. AD/93:'~\~L .
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ha\c hereunlo sct cur h:L~cS :md SCJIs this
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St3.le of Penru)'lnni:1 }
COUDry of Cumberl3nd.
Person311y 3ppmcd belore me, L'le subscribe" [laOj.k:;.I.-!<!.'f:P_~~'!faf;.r.~:~~~!.c._s.;{;,.~...--.-----
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-uu.....___._uuu.___._...._..u.______ .__.___.__... __ __.. __.. __.. _.u_.__ .__..___.. the P13intill in the
3.bove Jud3mcm, and in due fonn of law :lcknowh:dgcd the \,ithin ar.d fort:going- Power of Anomey to satisfy the Judg.
m~nt set forth, ~r) be
:let and deed, and dl:sir~l! tholt t1..: S'::':.~~ 5:1::.11 be filed of record in the office of the Prothon-
,Jl"l.1) of tll~ (..".\lrt 'Jf Common PJC:LS of said Count)',
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Ir. -.estim,my whcreor, I h:l....e hereunto set my h:llld and scal this 7
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MARICOPA COUNTY SHERIFF'S OFFICE
Civil Process Section
102 Wo.l Madilon Streol
Phoonlx, Arizona 85003-2292
CAP IT AL RECOVERY
VI.
BYBEE & SHAW
STATE DF ARIZONA ) case # 97871
) 55,
county of Maricopa ) Docket # C120844
J. SKINNER IIS405, BEING FIRST DULY SWORN ON OATH DEPOSES AND SAYS: THAT HE
IS A CITIZEN OF THE UNITED STATES OVER THE AGE OF 21 YEARS: THAT HE HAS NO
INTEREST WHATSOEVER IN THE WITHIN ENTITLED HATTER; THAT HE IS A REGULARLY
APPOINTED DEPUTY SHERIFF OF MARICOPA COUNTY, ARIZONA, AND AS SUCH HAS THE
POWER TO SERVE CIVIL PROCESSES WITHIN SAID COUNTY; THAT HE SERVED THE WITHIN
NOTICE ON THE 24TH DAY OF MARCH, 1997, ON THE WITHIN NAMED DEFENDANT MICHAEL
SHAW, ESQUIRE, IN PERSON, AT 3910 S. RURUAL ROAD, SUITE #8-1, TEMPE,
ARIZONA, AT 10:30 A.H., IN THE COUNTY OF MARICOPA, A COPY OF SAID NOTICE TO
WHICH WAS ATTACHED A TRUE COPY OF THE COMPLAINT, VERIFICATIONS AND
MISCELLANEOUS MENTIONED THEREIN.: Notice to plead entered as notice.
Certificate of service entered as miscellaneous.
Feu:
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II mil............
J notary.........
__ c.rtific.tion..
20.00 Jos.ph H. Arp.io
22.50 M.ricop. County Sheriff
10.00
Tot.l 52.50
Subscrib.d Ind sworn to before me thil ~ dlY of ~L /9q1
'-fJ'UiUIAA _ ~, mah.uIJ
Not.ry Public in Ind for the County of H.ricop. - St.te of Artzonl
AB20
CVLF002
My Comm:SSion Expires r/ov. 28, 10111
-
CAPITOL RECOVERY ASSOCIATBS I
INC., I
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Plaintiff I
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V. I
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BYBEE " SHAW, FLOYD BYBEE, and I
Ml:CHAEL SHAW, I
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Defendants I
IN THE UNITED STATES DISTRICT COURT
FOP. THE MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. lICV-97-646
FILED
HARRISBURG. PA
Jut 11997
ORDER
MAR~. ' m~E'\. CI.'::"l"
Per ~___ ___
.
(1) Defendants' motion
Before the court are two motions:
to dismiss for lack of personal jurisdiction, or, in the
alternative, to transfer venue, and (2) Plaintiff's motion to
remand. For the reasons stated below, the court will grant
Plaintiff's motion to remand and deny Defendants' motion as moot,
Prior to commencing the present action, Plaintiff
initiated an almost identical case in the Cumberland County Court
of Common Pleas, The amount in controversy alleged in that case
exceeded the amount in controversy requirement of $75,000. On
February 5, 1997, Defendants removed the prior case to this court
and filed a motion to dismiss for lack of personal jurisdiction,
or alternatively, to transfer venue, The case was docketed as
Civil Action No. 1:CV-97-180. Plaintiff never responded to
Defendant's mc~~on but voluntarily discontinued 97-180 without
preju1ice on Feb~ "' 18, 1997.
Plaintiff s;se~~ently filed the present action in the
Court of Common Pleas. ~efendants removed the case to this court
/
on April 24, 1997, simultaneously filing a motion to dismiss for
personal jurisdiction, or, in the alternative, to transfer venue.
Plaintiff responded to Defendants' motion on May 12, 1997 and
filed a motion to remand to the state court. In its motion to
remand, Plaintiff argues that the amount in controversy does not
exceed the jurisdictional amount requirement of $75,000,'
Plaintiff also contends that Defendants have not served notice of
removal upon the Prothonotary of the Cumberland Court of Common
Pleas and have not, therefore, effectuated removal of the instant
case.
Defendants have not responded to Plaintiff's motion to
remand, nor have they filed a reply brief in support of their own
motion. Defendants' response to Plaintiff's motion was due May
,27, 1997.2 On or about June 5, 1997, the court received a
telephone call from Defendant Shaw. Defendant Shaw represented to
the law clerk assigned to this case that he had not responded to
Plaintiff's motion to remand because the documents he received
contained the caption number of the previously dismissed action,
Civil No. 1:CV-97-180. Defendant Shaw was informed that the
, Plaintiff mistakenly identifies the requisite jurisdictional
amount as $50,000, The amount in controversy requirement was recently
amended and effective January 17, 1997 changed to $75,000.
2 The Middle District Local Rules provide that a nonmovant
has fifteen days after service of the movant's brief to respond.
(M.D. Pa. R. 7,6), Federal Rule of Civil Procedure 6(e) adds three
days when service is accomplished by mail, Federal Rule 6(a) excludes
from computation the day on which the movant filed its motion.
2
motion had been correctly docketed in Civil No. 1:CV-97-646. The
law clerk recommended to Shaw that he contact Plaintiff's counsel,
explain his mistake, attempt to obtain additional time within
which to respond, and then communicate with the court.
On or about June 12, 1997, the court received a copy of
a letter addressed to Shaw from Plaintiff's counsel, indicating
that he would not agree to grant Shaw any additional time within
which to respond to Plaintiff's motion to remand. Shaw has not
communicaced with the court in any manner since his telephone call
to chambers.
A review of the complaint reveals an allegation of an
amount in controversy of approximately $34,0000, an amount well
below the $75,000 jurisdictional amount requirement, Plaintiff's
complaint differs primarily from the complaint filed in Civil
Action No. 1:CV-97-180 in its omission of Plaintiff's prior claim
for punitive damages in the amount of $500,000, and in its
reduction of the amount of damages claimed for defamation of
business reputation and intentional interference with contractual
relations. "As the plaintiff is considered to be 'the master of
his or her own claim,' he may insulate a case from removal by
waiving a portion of his damages and asking for less than the
jurisdictional amount," Corwin Jeeo Sales. v. American Motor
Sales, 670 F.Supp" 596 (M.D. Pa. 1986) (Rambo, J.) (auotina 14A
Wright, Miller & cooper, Federal Practice and Procedure,S 3702 at
3
Venue
3) Venue is proper for this action pursuant to Pa,R,C.P,
No. 1006 the cause of action arose and/or the
transactions took place out of which this cause of
action arose, in Cumberland County, Pennsylvania.
Parties
4) Plaintiff, Capital Recovery Associates, rnc, ("CRA"),
is a Pennsylvania corporation with its principal place
of business located at 324 Market Street, Lemoyne,
Cumberland County, Pennsylvania.
5) Plaintiff is engaged in the business of collections,
primarily collecting personal checks that were
dishonored by the individual check-writers' financial
institutions.
6) Defendant Floyd Bybee is an attorney who is domiciled
in Arizona and practices law in Arizona at 3910 South
Rural Road, Suite B-1, Tempe, Arizona, and is a partner
with Bybee & Shaw,
7) Defendant Michael Shaw is an attorney who is domiciled
in Arizona and practices law in Arizona at 3910 South
Rural Road, Suite B-1, Tempe, Arizona, and is a partner
with Bybee & Shaw,
General Allegation.
B) On March 13, 1996, Defendants sent CRA a demand
letter for one of Defendants' clients, Sherry,
threatening to sue eRA for an alleged violation of
the Fair Debt Collection Practices Act ("FDCPA").
(Exhibit A)
9) Defendants' client, Sherry, had allegedly written an
NSF check (non-sufficient funds) check to CRA's client.
10) On March lB, 1996, Defendants sent CRA another letter
regarding the terms of a settlement with Sherry,
(Exhibit B)
11) On March 25, 1996, CRA sent a $500,00 check to Bybee &
Shaw in an attempt to settle the case with Sherry,
(Exhibit C)
12) On April 9, 1996, Defendants sent a facsimile to CRA
demanding money for another of their clients, Riley,
for alleged violations of the FDCPA. (Exhibit D)
13) Defendants' client, Riley, had allegedly written an
NSF check (non-sufficient funds) check to CRA's client.
14) On or about April 19, Carl Burd, General Manager of CRA
(hereinafter "Burd") telephoned Defendant Shaw
regarding the allegations against CRA.
15) Burd and Defendant Shaw agreed that CRA would pay
$2700.00 for both claims, Sherry and Riley.
16) Burd and Defendant Shaw agreed that Defendant Shaw
would return to CRA, the first installment of $500.00,
as described in Paragraphs 9) and 10) above, un-cashed,
and CRA would send another check for the total
settlement amount to Defendant Shaw.
17) On May 9, 1996, CRA sent a check for $2700 for
the Sherry/Riley settlement. (Exhibit E)
18) On May 9, 1996, CRA sent a letter to Defendants,
memorializing the Sherry/Riley settlement and
requesting the $500,00 be returned, (Exhibit f)
19) On June 3, 1996, Defendants sent a letter to CRA
acknowledging the receipt of the settlement money from
CRA along with copies of the releases for both cases,
(Exhibit G)
20) On June 3, 1996, Defendants sent a letter to Mark
Bradshaw, counsel for CRA at that time, regarding a new
alleged claim against CRA under the fDCPA for another
client of Defendants named Pollard. (Exhibit H)
21) Defendant's client, Pollard, had allegedly written an
NSf (non-sufficient funds) check to CRA's client,
22) Defendants cashed and retained the $500,00 payment
from the Sherry settlement, despite acknowledging
receipt of full satisfaction combined Sherry/Riley
settlement.
23) Defendants cashed and retained the $500.00 in
anticipation of future settlements because they planned
to continue these actions against CRA.
24) The June 3, 1996, letter from Shaw to Attorney Bradshaw
stated that, "I am already in receipt of $500,00
towards the amount," (See Exhibit H,)
25) Defendants elected to retain the $500,00 over-payment
for the Sherry/Riley settlement, before any alleged new
claims were made known to CRA.
26) Plaintiff contacted Shaw and requested the $500.00
payment be returned to CRA.
27) Defendants improperly retained $500.00 and were
unjustly enriched by this act.
28) Defendants breached the settlement agreement with
CRA for Sherry/Riley by improperly retaining additional
consideration that was not part of the settlement
agreement.
29) Defendants knowingly made a false statement regarding
the $500,00 as part of an ongoing scheme to defraud CRA
of money.
30) On or about July 26, 1996, Defendant Shaw contacted one
of CRA's major clients in order to damage CRA's
business reputation,
31) Defendant Shaw told this CRA client that CRA was not
properly "licensed" in the States of Arizona and
Connecticut in order to damage CRA's business
reputation,
32) Defendant Shaw's representation to CRA's client was
false as CRA was not conducting business in the States
of Arizona and Connecticut,
33) Defendants knew that any prior CRA activity within the
state of Arizona was accidental and acknowledged same
on several occasions.
34) Plaintiff believes and has knowledge that Defendants'
primary practice is illegally and wrongfully making
demands for payment or maliciously filing law suits
against individuals and entities that collect on
worthless/bad checks.
35) Plaintiff believes and has knowledge that Defendants
file suits and threaten legal action for the purpose of
shielding their clients from criminal and civil
liability.
36) Plaintiff believes and has knowledge that Defendants'
practices and procedures are unethical and illegal and
have been perpetrated on numerous individuals and
entities throughout the United States,
37) Defendants, in their letters and phone calls, allege
that Plaintiff violated the FDCPA for not being
"licensed" in Arizona, and this tactic is part of
Defendants' scheme to defraud and to seek monies from
Plaintiff through unconscionable and illegal means,
38) Defendants and their clients have no standing to sue
under Arizona law for state licensing violations.
39) Plaintiff believes and has knowledge that Defendants
clients have not paid for their worthless/bad checks
and may never intend to pay for their worthless/bad
checks.
40) Defendants intend to practice this scheme to defraud
upon Plaintiff by threatening to file or by filing a
law suits against Plaintiff in an attempt to extort
monies from Plaintiff, to cause interference with
Plaintiff's business and to cause injury and damage to
Plaintiff's business reputation by willfully and
maliciously publishing defamatory statements.
41) On or before July 25, Plaintiff received a call from
Matthew Nayden ("NaydenH), attorney for Stacy Allen
("AllenH); Ms, Allen was CRA's former in-house counsel.
42) Nayden informed Plaintiff, through its counsel, that
Allen received a phone call from Defendant Shaw,
demanding $1,500.00 to settle an alleged FDCPA
violation.
43) Plaintiff, through its counsel, informed Nayden that
CRA would not settle any alleged claims with
Defendants,
44) On July 30,1996, Defendant Shaw sent a demand letter to
Allen, through her counsel, (Exhibit J)
45) Nayden, Allen's counsel, again contacted CRA and sent a
facsimile copy of the demand letter from Defendants,
46) Nayden, Allen's counsel, was again advised that CRA
would not settle any alleged claims with Defendants.
47) On September 5, 1996, Defendant Shaw filed a law suit
.'
against CRA and Allen.
48) The September 5,1996, the lawsuit against CRA and Allen
was dismissed, sua sponte by the judge, on September 6,
1996. (Exhibit K)
49) As of this date, Defendants have not returned the
$500.00 as requested,
50) On or about December 11, 1996, Defendants contacted
Larry Rosen, an attorney that also represents CRA, and
demanded $1,500.00 to settle an alleged .DCPA claim,
51) As of this date, Defendants have continued their
practice of demanding money from CRA or CRA
representatives under the means described herein,
Count I - Fraud And Conspiracy To Dexraud
52) Plaintiff hereby incorporates Paragraphs 1 through 51
as if fully set forth herein.
53) Defendants misrepresented their right to retain the
$500.00 payment.
54) Defendants misrepresented that the allegations and
demands for money were valid legal claims.
55) Defendants knew or should have known that writing a
worthless check is a tortious activity pursuant to
Arizona Statute, A,R,S, ~12-671.
56) Under Arizona Statutes, A.R.S.. ~12-671(C), failure
within 12 days after receiving notice of nonpayment or
dishonor to pay the check or draft is prima facie
evidence of intent to defraud,
57) Defendants knew or should have known that writing a
worthless check is a criminal act under Arizona
Statute, A,R.S, S13-1807, 13-1802,
58) Defendants knew or should have known that they neither
they nor their clients had standing to sue under
Arizona law for state licensing violations,
59) Defendants acknowledged that CRA's activity within the
state of Arizona was accidental, thereby giving them a
viable defense for alleged FDCPA violations/claims.
60) Defendants knew that defending a lawsuit in Arizona
would be both costly and time consuming to CRA,
regardless of the results.
61) Defendants made these misrepresentations with the
intent of inducing Plaintiff into mailing money to
Defendants on behalf of Defendants' clients.
62) Plaintiff justifiably relied on these
misrepresentations which did mislead and deceive
Plaintiff to mail money to Defe~dants.
63) Plaintiff negotiated two settlement agreements for
alleged FDCPA violations based on Defendants'
misrepresentations.
64) As a result of Defendants misrepresentations, Plaintiff
has sustained damages in the amount of $5000,00,
representing actual monies paid to Defendants, plus
attorneys fees for out-side counsel to assist in the
negotiacion process of approximately $200,00.
claim between eRA and their clients, Sherry and Riley,
70) Defendants received the full satisfaction under the
terms of the Sherry/Riley agreement, $2,700.00,
71) Defendants failed to return the initial payment of
$500,00, despite receiving $2,700,00 in full
satisfaction for the Sherry/Riley agreement,
Wherefore, Plaintiff demands judgment against Defendant
in the amount of $3,200.00, plus appropriate interest,
attorney's fees and costs,
Count IV - Fraud with respect to Settlement Agreements
72) Plaintiff hereby incorporates Paragraphs 1 through 71
as if fully set forth herein.
73) Defendants negotiated the Sherry/Riles joint settlement
agreement for $2,700.00,
74) Defendants misrepresented that they would return the
$500,00 initial payment for the Sherry settlement.
75) Defendants planned to continue threatening and/or filing
lawsuits against Plaintiff.
76) Defendants never intended to return the $500,00 rather,
kept the $500.00 in anticipation that Plaintiff would
settle another alleged claim.
77) Defendants knew that Plaintiff would rely on their
misrepresentations.
78) Plaintiff did rely on Defendants misrepresentations and
were induced into settling the Sherry/Riley alleged claim
and an earlier alleged claim,
79) Plaintiff was damaged by Defendants' acts.
Wherefore, Plaintiff demands judgment against
Defendants in the amount of $3,200,00, plus appropriate
interest, attorney's fees and costs, Additionally, Plaintiff
requests that Defendants be enjoined from this practice
within the Commonwealth of Pennsylvania.
Count V - Defamation to Business Reputation
80) Plaintiff hereby incorporates Paragraphs 1 through 79
as if fully set forth herein.
81) Defendants telephoned one of Plaintiff's major clients
and made defamatory statements regarding CRA and their
business practices.
82) Defendants caused to be published defamatory statements
such as:
a. that, Plaintiff has caused harm or damage to
Defendants' clients;
b, that, Plaintiff has attempted to collect monies
from Defendants' clients in an attempt to deceive
Defendants' clients; when in fact, these amounts
were legally owed to Plaintiff's clients;
c, that, Plaintiff has violated certain laws and
statutes governing the collection of worthless
checks.
83) Such statements made by Defendants were false and made
with the intent to injure Plaintiff's business
reputation or for the purpose of oppressing Plaintiff
into paying monies for acts that Plaintiff did not
participate in or commit.
84) Defendants' acts of defamation were committed
knowingly, willfully, wrongfully and maliciously, and
without legal justification or excuse.
85) As a result of Defendants' publication of such
defamatory statements, Plaintiff has been injured in
their good name, business interest, and reputation in
the business community ascertainable.
Wherefore, Plaintiff demands judgment against
Defendants in the amount of $5,000.00, plus appropriate
interest, attorney's fees and costs,
Count VI - Intentional Interference With
Contractual Relations
86) Plaintiff hereby incorporates Paragraphs I through 85
as if fully set forth herein,
87) Defendants knowingly, willfully, wrongfully,
maliciously, and without legal justification or excuse,
interfered with Plaintiff and its client,
88) Defendants have and continue to cause harm by making
misstatements, threatening or filing lawsuits, and by
committing other acts with the direct purpose to
discredit Plaintiff and with the purpose of interfering
with Plaintiff's relationship with its client,
89) As a result of Defendants' intentional interference
with Plaintiff's contractual relations, Plaintiff has
been harmed,
Wherefore, Plaintiff demands judgment against
Defendants in the amount of $10,000,00, plus appropriate
interests, attorney's fees and costs.
Count VI - Unfair Business Practices
90) Plaintiff hereby incorporates Paragraphs 1 through 89
as if fully set forth herein,
91) Defendants' conduct as described herein constitutes
unfair or deceptive business acts or practices within
the meaning of the Unfair Trade Practices and Consumer
Protection Law, ("UTpN), 73 P.S, 5201-1, et seq,
92) As a result of Defendants' unconscionable acts and
practices, and Defendants' violation of the UTP,
Plaintiff is entitled to recover attorney's fees and
costs, In addition, Plaintiff requests that Defendants be
enjoined from this practice within the Commonwealth of
Pennsylvania.
rrmuW' 0I'I'IC1iS 01'
BYBEE & SHAW
MICHAEL C. SIIA W
fUlYD W. BYBEE
3910 NOlTfll RURAl. ROAD. SUITF. n.I, TEMPF.. ARIZONA 85281
TF.LF.PIIONElI601) 911.7545
FAX. 601) 858.oJ48
March 13, 1996
SENT VIA FACSIMILE TO: (717\ 730-7070
AND BY REGULAR MAIL
Mr. Edward Maxwell
CRA SECURITY SYSTEMS
P.O. Box 625
LeMoyne, PA 17043
Re: Kimberly Sherry
Your Ref: 02311692-01N
Dear Mr, Maxwell:
Please be advised that I have been retained by the above
captioned individual regarding a dunning letter that she has
received in Arizona from CRA Security Systems ("CRA") concerning a
debt allegedly owed Walgreens. I am enclosing a copy of the
dunning notice dated December 13, 1995, received and read by Ms.
Sherry, for your convenience. At present, it is my client's
intention to file a lawsuit against CRA unless resolution of her
claims is reached.
CRA has violated several provisions of the Fair Debt
Collection Practices Act, 15 U.S.C. S1692 et sea. and applicable
Arizona state law in its attempt to collect this alleged debt from
Ms. Sherry.
First and foremost, eRA was not licensed by the Arizona State
Banking Department to collect debts within the state of Arizona.
As a member of the American Collectors Association, you are no
doubt aware that Arizona is a closed border state, and as such, all
collection agencies must be licensed to collect debts here pursuant
to A.R.S. S32-1024. Despite that knowledge, CRA has continued to
dun Ms. Sherry knowing she was residing in Arizona. Furthermore,
the majority of courts that have examined the issue have held that
violations of applicable state law constitute violations of 15
U.S.C. SI692e(10). (See Siblev v, Firstcollect, Inc" WL 782171
(M.D.La 1995), Gaetano v. pavco of Wisconsin. Inc" 774 F.Supp.
1404 (D.Conn. 1990), and Kuhn v. Account Control Technoloav. Inc.,
865 F.Supp. 1443 (D.Nev. 1994).
E. )t h',b;~ A
Mr. Edward Maxwell
CRA SECURITY SYSTEMS
March 13, 1996
page -2-
At this point, however, Ms. Sherry is willing to resolve her
claims without litigation, by releasing eRA trom any and all
liability concerning its illegal attempt to collect the debts
allegedly owed walgreens for the following:
(1) CRA agrees to pay the sum of Two Thousand Five Hundred
Dollars ($2,500.00) to Ms. Sherry in the form of a certified
check made payable to the order of Bvbee /;, Shaw. Trust
Account.
I will diary this matter for Tue~day, March 19, 1996, at 4:00
p.m. (M.S.T.). If I have not received a reply by then, I will
follow the instructions of my client and litigation will be
initiated in the United States District Court for the District of
Arizona alleging violations of the Fair Debt Collection practices
Act.
Thank you for your prompt attention to this matter.
Sincerely,
THE LAW OFFICES OF BYBEE /;, SHAW
:rI1.#.f?ff:J 5(
. . .
THIS ENTIRE LETTER IS MEANT SOLELY FOR
SETTLEMENT PURPOSES PURSUANT TO RULE 408 OF
THE FEDERAL RULES OF EVIDENCE.
. . .
MCS:lr
Encl: as stated
cc: Client (w/O enclosures)
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March 18, 1996
SE~ VIA FAX TO: (7171 730-7070
Mr. Carl Burd
CRA SECURITY SYSTEMS
P.O. Box 625
LeMoyne, PA 17043
Dear Mr. Burd:
This letter will confirm our telephone conversation of last
Thursday, wherein it was agreed that Ms. Sherry would settle her
claim against CRA for its payment of $1,500,00. It was agreed that
eRA will pay said sum as follows: 1) $500.00 on March 25, 1996; 2)
$500.00 on April 25, 1996; and 3) $500.00 on May 25, 1996.
I am also enclosing a proposed Release for your review. I
will hold the executed Release until receipt of the final payment.
At that time I will forward the Release to you for your records.
Thank you for your assistanco in bringing this matter to a
quick and equitable resolution. Feel free to contact me if you
have questions regarding any of the above.
Sincerely,
THE LAW OFFICES OF BYBEE & SHAW
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Mr. Carl Burd
P.O. Box 625
Lemoyne, PA 17043-0625
Re: Kimberly R Sheny and Maria C. Riley
Dear Carl:
I am in receipt of payment in the amount of $1200.00 each for Kimberly Sheny and Maria
Riley. As per our agreement, enclosed please find the two original Releases executed by my clients,
Thank you for resolving both matters in a prompt and equitable fashion.
Sincerely,
BYBEE & SHAW
111 ulJf:l
Michael C. Shaw, Esq.
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July 30, 1996
S&NT VIA FAc;SIMlLE TO: (410) 547-0699
~ BY llEGULAR mJt
Matthew Nayden, Esq,
Ober, Kaler
120 E, Baltimore Street
Baltimore, MD 21202
Re: Joseph W. Draper
Your cl: Slaty Allen
Dear Mr, Nayden:
As per our telephone diSl:USsion, please be advi'lCd tlw I have been retained by the above
referenced individual concerning a dunning letter he received from SllJcy L, Allen, Esq., regarding a
debt allegedly owed Walgreens, I am enclosing a copy of the letter, received lI1d'read by Mr. Draper.
for your convenience At present, it is my client's intention to file a law suit against Ms. ADen, eRA
Security Systems. Inc II1d Walgreens, unless resolution of his claims is reached.
Ms ADen's letter sent to Mr Draper violated the Fair Debt CoUection Practices Act,' IS
USC See 1692!:1 Klj, and applicable Arizona state law in several respects,
First, Ms, ADen's client, CRA Security Systems Inc, remains unlicensed within the state of
Arizona. to coDect debts here, Therefore, if eRA has no power or authority to coDcct the alleged
debt owed Walgreens, obviously neither can Ms, Allen, Thus, the letter violated l692e (5) and (10)
Second, the letter contains numerous threats regarding litigation over the N S F check. Since
Ms Allen is not licensed to practice law in Arizona. the threats were false Moreover, since eRA is not
Iicen.sed by the Arizona SWe Banking Dcpanment to coDcct debts here, Ms. Allen could have talcen no
action, including the 9/6/95 letter, 011 its behalf Lastly, in conducting my reasonable investigation of the
facts, pursuant to FRCP. RJJ!e II, it is my belief that WaIgrcens never authorized legal intervention on
behalf of Ms ADen, Baled on the above, I believe Ms. ADen, in IlIct, did not even mail this letter.
Rather, CRA is responsible for its contents and mailina.
AUl-06-1996 15:35
EKhibit A
4107271362
P.02
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OCt '07'961MONI 16:08 RENAUD COOK VIDEAN
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TEL 602154144&
p, 008
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SEP 1 1 1996 f
l<U S O/S7:
fl.,. O/STRICTop~~Tcoullr
....IZO'~14
OEPUl
3
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IN '!'HE UNITED ST~ES DISTRICT COUR'1'
FOR TKB DISTRICT OF ARIZONA
1
8
9
JOSEPH w. DRAPER,
10
Plaintiff
I
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I No. qrv 96-2038 PHI PGR
I
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I ORDER
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vs.
11
12
CRA SECURITY SYSTBKS, INC.
13 Defendant
14
IS On September 5, 1996, the plaintiff filed a complaint alleging
16 that the defendantB violated the Fair Debt Collection Practices Act
11 in th~ir attempts to collect on a non-Bufficient fundo check.
18 Havin; reviewed the complaint, the Court finds that it should sua
19 sponte dismis8ed for failure to Btate a claim pursuant t:o
20 Fed.R.Civ.P. l2(b)(6). See SDarlin' v. Hoffman Con8trucUon Co..
21 ~, 864 F.2d 635, 638 (9th Cir. 1,98). The Court's finding i8
22 baoed upon its decision in Charles v. Checkrite. Ltd., CIV 95-2263
23 PBX PGR, filed Kay 9, 1996 (doc. '48), wherein it concluded that a
24 HSF chsck does not constitute a debt within the purview of the
2S
26
1
AO 12
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OCT-e7-1996 19:1e
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Associates, Inc., :
Plaintiff, .
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v. .
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Bybee & Shalf, an .
.
Arizona Partnership, .
.
Floyd Bybee, and .
.
Michael Shalf, :
Defendants. .
.
In the Court of Common Pleas
CUmberland County, Pennsylvania
No. 97-871 Civil Term
Complaint in Lalf
TO: Lawrence E. Welker, PROTHONOTARY:
PRAECIPE TO WITHDRAW APPEARANCE OF COUNSEL
Please take notice, as of this date, I hereby withdraw
my appearance as counsel in the above referenced matter
pursuant to the request of Capital Recovery Associates, Inc.
Please mark the docket accordingly.
Respect full y submit ted,
Dated: if 17 ') 7-
.5 1'1 /17
By: A}U-1tAU- i3.."..... n J/I-i-"-;{ 4-
Deanna~nn Smith
Attorney for Plaintiff
IDU 77414
1101 North Front Street
Harrisburg, PA 17102
(717) 234-4583
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CAPITAL RECOVERY ASSOCIATES . IN 'l'HE COURT OF CCMMON PLEAS OF
.
INC. , . CUMBERLAND COUNTY, PENNSYLVANIA
.
Plaintiff :
,
.
v. . NO, 97-871 Civil Tezm
.
:
BlIBEE & SHAW, an Arizona, : CIVIL ACTION - LAW
Partnership, and FLOYD BlIBEE, :
and MICHAEL SHAW, .
.
Defendants : JURY rnIAL DEMANDED
RULE TO SHOW CAUSE
AND NOW, this
I '-( ,
day of
A,., ',/
,
, 1997, a
Rule is hereby issued on all parties to show cause why Deanna Lynn
Smith should not be permitted to withdraw as counsel for Plaintiff
in the above matter.
RULE RETURNABLE
-z..t>
.
DAYS FROM SERVICE go,., eJ..I rtUhw
BY THE COURT:
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CAPITAL RECOVERY ASSOCIATES . IN THE COURT OF CCM<1ON PLEAS OF
.
INC., . CUMBERLAND COUNTY, PENNSYLVANIA
.
Plaintiff :
:
v. : NO. 97-871 Civil Tenn
:
BYBEE & SHAW, an Arizona, : CIVIL ACTION - LAW
Partnership, and FLOYD BYBEE, .
.
and MICHAEL SHAW, :
Defendants . JURY TRIAL DEMANDED
.
PETITION FOR RULE TO SHOW CAUSE
TO THE HONORABLE, JUDGES OF SAID COURT:
AND NOW, comes Deanna Lynn Smith, Esquire who respectfully
sets forth the following in support of this Petition:
1. Plaintiff has requested that Deanna Lynn Smith, Esquire
withdraw as its counsel in the above matter,
WHEREFORE, it is hereby requested that Your Honorable Court
Order that Deanna Lynn Smith, Esquire be permitted to withdraw as
counsel for Plaintiff in the above case.
Respectfully Submitted:
DATE: c.f, 1,Ql
t'U.A. -
eanna Lynn lth, Esquire
1101 North ont St,
Harrisburg, Pa. 17102
(717) 234-4583
Atty, I,D. 77414
VERIFICATION
I hereby verify that the statements made in the
foregoing document are true and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S.
Section 4904, relating tu unsworn falsification to authorities,
Dated: If ~ 1- '17
~~ ~',
DEANNA LYNN?~ ~
.
.'. )..
i
1 Michael C. Shaw
2 Floyd W. Bybee
3910 S, Rural Road
3 Suite B-1
Tempe. Arizona 85282
4 (602) 921-7545
5 Defendants Pro Se
6
7
8
,
. I
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IN THE UNITED STATES DISTRICf COURT
FOR THE MIDDLE DISTRlCf OF PENNSYLVANIA
9
10
11 CAPITAL RECOVERY ASSOCIATES, INC"
12
13
14
Plaintiff,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
APR 241991
No, 97- cj71 c;;J~
v.
NOTICE OF REMOVAL OF
ACfION UNDER
28 U,S,C. ~1441(b)
(DIVERSITY)
15 BYBEE & SHAW, an Arizona Partnership,
FLOYD BYBEE, and MICHAEL SHAW,
16
17
FILED
HARRISBURG, PA
Defendant(s),
18
19
20
t" ~ '-~ ,
TO THE CLERK OF THE ABOVE-ENTITLED COURT:
" .
PLEASE TAKE NOTICE that defendants. Bybee & Shaw. an Arizona partnership. Floyd
21
22
23
24
25
Bybee. and Michael Shaw, hereby removes to this Court the state court action described below,
I, On December 23, 1996 an action was commenced in the Common Court of Pleas
in and for the State of Pennsylvania, Cumberland County. entitled Capital Recovery Associates,
Inc,. Plaintiffs vs, Bybee & Shaw, an Arizona Partnership. Floyd Bybee, and Michael Shaw.
26
27
Defendants, as case number 96-6917 Civil Term,
2,
The first date upon which defendants received a copy of that complaint was
28
January 16, 1997 when defendants were served with a copy of the complainl and a Notice to
.'
'.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Plead from the state coun,
3, On February 5. 1997, defendants filed with this Coun a Notice of Removal of
Action Under 28 U,S,c. ~1441(b) and a Motion 10 Dismiss for Lack of Personal Jurisdiction; or
A1lernatively 10 Transfer Venue Pursuant to 28 U,S,C, ~ 1404(a), The action was subsequently
removed to this Coun and assigned to the Honorable Sylvia H, Rambo. under case no, I :CV-97-
0180,
4, Plaintiff never responded to defendants' NOlice of Removal nor their Motion to
Dismiss, Inslead, plaintiff filed a Notice of Dismissal without Prejudice, which was signed by
Judge Rambo and filed with the Coun on February 18. 1997,
5, On February 20, 1997, another action was commenced in the Common Coun of
Pleas in and for the State of Pennsylvania, Cumberland County, entitled Capital Recovery
Associates. Inc,. Plaintiffs vs. Bybee & Shaw, an Arizona Pannership. Floyd Bybee, and Michael
Shaw, Defendanls, as case number 97-871 Civil Tenn, A copy of that complaint is attached
hereto as Exhibit A.
6, The firsl date upon which defendants received a copy of this complaint was March
25, 1997 when defendants were served with a copy of the complainl and a Notice to Plead from
the state coun, A copy of the Notice to Plead is attached hereto as Exhibit B.
7, State action no. 96-6917 and state action 97-871 are vinually identical except for
the amount prayed for by plaintiff.
8, Under the doctrine enunciated in .'II. Paulllldem/lilV Co. \I. Cah Co.. 303 U,S,
283,58 S,CI. 586 (1938), this action is a civil action of which this Coun has original jurisdiction
under 28 U,S,C, ~ 1332. and is one which may be removed to this Coun by defendants pursuant
10 the provisions of28 U,S,C, ~1441(b) in that it is a civil action between citizens of different
slates and the matter in controversy exceeds the sum of$75.000,OO, exclusive of interest and
. I .
Venue
3) Venue is proper for this action pursuant to Pa,R.C.P.
No, 1006 the cause of action arose and/or the
transactions took place out of which this cause of
action arose, in Cumberland County, Pennsylvania.
Parties
4) Plaintiff, Capi tal Recovery Associates, Inc. ("CRA"),
is a Pennsylvania corporation with its principal place
of business located at 324 Market Street, Lemoyne,
Cumberland County, Pennsylvania,
5) Plaintiff is engaged in the business of collections,
primarily collecting personal checks that were
dishonored by the individual check-writers' financial
institutions,
6: Defendant Floyd Bybee is an attorney who is domiciled
in Arizona and practices law in Arizona at 3910 South
Rural Road, Suite B-1, Tempe, Arizona, and is a partner
with Bybee & Shaw.
7) Defendant Michael Shaw is an attorney who is domiciled
in Arizona and practices law in Arizona at 3910 South
Rural Road, Suite B-1, Tempe, Arizona, and is a partner
with Bybee & Shaw.
.'
General Allegations
8) On March 13, 1996, Defendants sent CRA a demand
letter for one of Defendants' clients, Sherry,
threatening to sue CRA for an alleged violation of
the Fair Debt Collection Practices Act ("FDCPAN),
(Exhibit A)
9) Defendants' client, Sherry, had allegedly written an
NSF check (non-sufficient funds) check to CRA's client.
101 On March 18, 1996, Defendants sent CRA another letter
regarding the terms of a settlement with Sherry.
(Exhibit B)
11) On March 25, 1996, CRA sent a $500.00 check to Bybee &
Shaw in an attempt to settle the case with Sherry,
(Exhibit CI
12) On April 9, 1996, Defendants sent a facsimile to CRA
demanding money for another of their clients, Riley,
for alleged violations of the FDCPA. (Exhibit D)
13) Defendants' client, Riley, had allegedly written an
NSF check (non-sufficient funds) check to CRA's client.
14) On or about April 19, Carl Burd, General Manager of CRA
(hereinafter "BurdN) telephoned Defendant Shaw
regarding the allegations against CRA.
15) Burd and Defendant Shaw agreed that CRA would pay
$2700.00 for both claims, Sherry and Riley.
16) Burd and Defendant Shaw agreed that Defendant Shaw
would return to CRA, the first installment of $500.00,
as described in Paragraphs 9) and 10) above, un-cashed,
and CRA would send another check for the total
settlement amount to Defendant Shaw,
17) On May 9, 1996, CRA sent a check for $2700 for
the Sherry/Riley settlement. (Exhibit E)
18) On May 9, 1996, CRA sent a letter to Defendants,
memorializing the Sherry/Riley settlement and
requesting the $500,00 be returned, (Exhibit F)
19) On June 3, 1996, Defendants sent a letter to CRA
acknowledging the receipt of the settlement money from
CRA along ~ith copies of the releases for both cases.
(Exhiblt G)
20) On June 3, 1996, Defendants sent a letter to Mark
Bradshaw, counsel for CRA at that time, regarding a new
alleged claim against CRA under the FDCPA for another
client of Defendants named Pollard. (Exhibit H)
21) Defendant's client, Pollard, had allegedly written an
NSF (non-sufficient funds) check to CRA's client,
22) Defendants cashed and retained the $500.00 payment
from the Sherry settlement, despite acknowledging
receipt of full satisfaction combined Sherry/Riley
settlement.
23) Defendants cashed and retained the $500.00 in
anticipation of future settlements because they planned
to continue these actions against CRA,
24) The June 3, 1996, letter from Shaw to Attorney Bradshaw
stated that, "I am already in receipt of $500.00
towards the amount." (See Exhibi t H,)
25) Defendants elected to retain the $500,00 over-payment
for the Sherry/Riley settlement, before any alleged new
claims were made known to C~A.
26) Plaintiff contacted Shaw and requested the $500,00
payment be returned to CRA.
27) Defendants improperly retained $500.00 and were
unjustly enriched by this act.
22) Defendants breached the settlement agreement with
CRA for Sherry/Riley by improperly retaining additional
consideration that was not part of the settlement
agreement,
29) Defendants knowingly made a false statement regarding
the $500,00 as part of an ongoing scheme to defraud CRA
of money,
30) On or about July 26, 1996, Defendant Shaw contacted one
of CRA's major clients in order to damage CRA's
business reputation,
31) Defendant Shaw told this CRA client that CRA was not
properly "licensed" in the States of Arizona and
Connecticut in order to damage CRA's business
reputation,
32) Defendant Shaw's representation to CRA's client was
false as CRA was not conducting business in the States
of Arizona and Connecticut,
33) Defendants knew that any prior CRA activity within the
state of Arizona was accidental and acknowledged same
on several occasions,
34) Plaintiff believes and has knowledge that Defendants'
primary practice is illegally and wrongfully making
demands for payment or maliciously filing law suits
against individuals and entities that collect on
~orthless/bad checks.
351 Plaintiff believes and has knowledge that Defendants
file suits and threaten legal action for the purpose of
shielding their clients from criminal and civil
liability,
36) Plaintiff believes and has knowledge that Defendants'
practices and procedures are unethical and illegal and
have been perpetrated on numerous individuals and
entities throughout the United States.
37) Defendants, in their letters and phone calls, allege
that Plaintiff violated the FDCPA for not being
"licensed" in Arizona, and this tactic is part of
Defendants' scheme to defraud and to seek monies from
Plaintiff through unconscionable and illegal means.
38) Defendants and their clients have no standing to sue
under Arizona law for state licensing violations,
39) Plaintiff believes and has knowledge that Defendants
.
clients have not paid for their worthless/bad checks
and may never intend to pay for their worthless/bad
checks,
40) Defendants intend to practice this scheme to defraud
upon Plaintiff by threatening to file or by filing a
law suits against Plaintiff in an attempt to extort
monies from Plaintiff, to cause interference with
Plaintiff's business and to cause injury and damage to
Plaintiff's business reputation by willfully and
maliciously publishing defamatory statements,
41) On or before July 25, Plaintiff received a call from
Matthew Nayden ("NaydenH), attorney for Stacy Allen
("AllenH); Ms, Allen was CRA's former in-house counsel.
42) Nayden informed Plaintiff, through its counsel, that
Allen received a phone call from Defendant Shaw,
demanding $1,500,00 to settle an alleged FDCPA
violation.
43) Plaintiff, through its counsel, informed Nayden that
eRA would not settle any alleged claims with
Defendants,
44) On July 30,1996, Defendant Shaw sent a demand letter to
Allen, through her counsel, (Exhibit J)
45) Nayden, Allen's counsel, again contacted CRA and sent a
facsimile copy of the demand letter from Defendants.
46) Nayden, Allen's counsel, was again advised that CRA
would not settle any alleged claims with Defendants,
47) On September 5, 1996, Defendant Shaw filed a law suit
against CRA and Allen.
48) The September 5,1996, the lawsuit against CRA and Allen
was dismissed, sua sponte by the judge, on September 6,
1996, (Exhibit K)
49) As of this date, Defendants have not returned the
$500.00 as requested.
50) On or about December 11, 1996, Defendants contacted
Larry Rosen, an attorney that also represents CRA, and
demanded $1,500.00 to settle an alleged fDCPA claim.
51) As of this date, Defendants have continued their
practice of demanding money from CRA or CRA
representatives under the means described herein,
Count I - Fraud And Conspiracy To De:fraud
52) Plaintiff hereby incorporates Paragraphs 1 through 51
as if fully set forth herein.
53) Defendants misrepresented their right to retain the
$500.00 payment,
54) Defendants misrepresented that the allegations and
demands for money were valid legal claims,
55) Defendants knew or should have known that writing a
worthless check is a tortious activity pursuant to
Arizona Statute, A,R,S, ~12-671.
56) Under Arizona Statutes, A.R,S., ~12-671 (C), failure
within 12 days after receiving notice of nonpayment or
dishonor to pay the check or draft is prima facie
evidence of intent to defraud,
57) Defendants knew or should have known that writing a
worthless check is a criminal act under Arizona
Statute, A,R,S, 513-1807, 13-1802.
58) Defendants knew or should have known that they neither
they nor their clients had standing to sue under
Arizona law for state licensing violations.
59) Defendants acknowledged that CRA's activity within the
state of Arizona was accidental, thereby giving them a
viable defense for alleged FDCPA violations/claims,
60) Defendants knew that defending a lawsuit in Arizona
would be both costly and time consuming to CRA,
regardless of the results.
61) Defendants made these misrepresentations with the
intent of inducing Plaintiff into mailing money to
Defendants on behalf of Defendants' clients,
62) Plaintiff justifiably relied on these
misrepresentations which did mislead and deceive
Plaintiff to mail money to Defendants,
63) Plaintiff negotiated two settlement agreements for
alleged FDCPA violations based on Defendants'
misrepresentations.
64) As a result of Defendants misrepresentations, Plaintiff
has sustained damages in the amount of $5000.00,
representing actual monies paid to Defendants, plus
attorneys fees for out-side counsel to assist in the
negotiation process of approximately $200,00.
Wherefore, Plaintiff demands judgment against
Defendants in the amount of $5200.00, plus appropriate
interest, attorney's fees and costs,
Addi tionally,
Plaintiff requests that Defendants be enjoined from this
fraudulent practice within the Commonwealth of Pennsylvania.
Count II - Unjust Enrichment
65) Plaintiff hereby incorporates Paragraphs I through 64
as if fully set forth herein.
66) Defendants acquired the value $500.00 from Plaintiffs
and were unjustly enriched.
67) Defendants acquired the value of $4,500,00 from
Plaintiffs from Defendants continuous practice of
threatening lawsuits and/or filing lawsuits, despite
the tortious activity of their clients.
Wherefore, Plaintiff demands judgment against
Defendants in the amount of $5200.00, plus appropriate
interest, attorney's fees and costs.
Count III - Breach of Contract
68) Plaintiff hereby incorporates Paragraphs 1 through 67
as if fully set forth herein,
69) Defendants negotiated an agreement to settle an alleged
!
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"
.
claim between eRA and their clients, Sherry and Riley.
70) Defendants received the full satisfaction under the
terms of the Sherry/Riley agreement, $2,700,00.
71) Defendants failed to return the initial payment of
$500,00, despite receiving $2,700,00 in full
satisfaction for the Sherry/Riley agreement.
Wherefore, Plaintiff demands judgment against Defendant
in the amount of $3,200.00, plus appropriate interest,
attorney's fees and costs.
Count IV - Fraud with respect to Settlement Agreements
72) Plaintiff hereby incorporates Paragraphs 1 through 71
as if fully set forth herein.
73) Defendants negotiated the Sherry/Riles joint settlement
agreement for $2,700.00,
74) Defendants misrepresented that they would return the
$500,00 initial payment for the Sherry settlement.
75) Defendants planned to continue threatening and/or filing
lawsuits against Plaintiff.
76) Defendants never intended to return the $500,00 rather,
kept the $500.00 in anticipation that Plaintiff would
settle another alleged claim.
77) Defendants knew that Plaintiff would rely on their
misrepresentations.
78) Plaintiff did rely on Defendants misrepresentations and
, .
checks.
B3) Such statements made by Defendants were false and made
with the intent to injure Plaintiff's business
reputation or for the purpose of oppressing Plaintiff
into paying monies for acts that Plaintiff did not
participate in or commit,
B4) Defendants' acts of defamation were committed
knowingly, willfully, wrongfully and maliciously, and
without legal justification or excuse,
B5) As a result of Defendants' publication of such
defamatory statements, Plaintiff has been injured in
their good name, business interest, and reputation in
the business community ascertainable,
Wherefore, Plaintiff demands judgment against
Defendants in the amount of $5,000,00, plus appropriate
interest, attorney's fees and costs.
Count VI - Intentiona~ Interference With
Contractua~ Relations
B6) Plaintiff hereby incorporates Paragraphs I through B5
as if fully set forth herein.
B7) Defendants knowingly, willfully, wrongfully,
maliciously, and without legal justification or excuse,
interfered with Plaintiff and its client.
BB) Defendants have and continue to cause harm by making
misstatements, threatening or filing lawsuits, and by
committing other acts with the direct purpose to
discredit Plaintiff and with the purpose of interfering
with Plaintiff's relationship with its client.
89) As a result of Defendants' intentional interference
with Plaintiff's contractual relations, Plaintiff has
been harmed.
Wherefore, Plaintiff demands judgment against
Defendants in the amount of $10,000,00, plus appropriate
interests, attorney's fees and costs.
Count VI - Unfair Business Practices
90) Plaintiff hereby incorporates Paragraphs 1 through 89
as if fully set forth herein.
91) Defendants' conduct as described herein constitutes
unfair or deceptive business acts or practices within
the meaning of the Unfair Trade Practices and Consumer
Protection Law, ("UTP"), 73 P,S, 5201-1, et seq.
92) As a result of Defendants' unconscionable acts and
practices, and Defendants' violation of the UTP,
Plaintiff is entitled to recover attorney's fees and
costs, In addition, Plaintiff requests that Defendants be
enjoined from this practice within the Commonwealth of
Pennsylvania.
\'
nIB lA" 0I'PfC63 01'
BYBEE" SHAW
3910 SOlrrll RURAl. ROAD. SUITE 8.1. TEMPE. ARIZONA 15181
TELEPIIONElI601l911.7545
FAX. 601 158-43411
MICHAEL C, SllAW
fl,OYD W, BYBEE
March 13, 1996
SENT VIA FACSIMILE TO: (717\ 730-7070
AND BY REGULAR MAIL
Mr. Edward Maxwell
CRA SECURITY SYSTEMS
P.O. Box 625
LeMoyne, PA 17043
Re: Kimberly Sherry
Your Ref: 02311692-01N
Dear Mr. Maxwell:
Please be advised that I have been retained by the above
captioned individual regarding a dunning letter that she has
received in Arizona from CRA Security Systems ("CRA") concerning a
debt allegedly owed Walgreens. I am enclosing a copy of the
dunning notice dated December 13, 1995, received and read by Ms.
Sherry, for your convenience. At present, it is my client's
intention to file a lawsuit against CRA unless resolution of her
claims is reached.
CRA has violated several provisions of the Fair Debt
Collection Practices Act, 15 U.S.C. 51692 et sea. and applicable
Arizona state law in its attempt to collect this alleged debt from
Ms. Sherry.
First and foremost, CRA was not licensed by the Arizona State
Banking Department to collect debts within the state of Arizona.
As a member of the American Collectors Association, you are no
doubt aware that Arizona is a closed border state, and as such, All
collecticn agencies must be licensed to collect debts here pursuant
to A.R,S, 532-1024. Despite that knowledge, CRA has continued to
dun Ms. Sherry knowing she was residing in Arizona. Furthermore,
the majority of courts that have examined the issue have held that
violations of applicable state law constitute violations of 15
U,S.C. 51692e(10). (See Siblev v, Firstcollect. Inc., WL 782171
(M.D.La 1995), Gaetano v, Pavco of Wisconsin, Inc., 774 F.Supp.
1404 (D.Conn, 1990), and Kuhn v. Account Control Technoloav, Inc.,
865 F,Supp. 1443 (D.Nev. 1994).
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3910 SOurH Iluw.RoAD. SlIltr 8,1. H""u. ^""nHA "'1'1
1ILlrllnH': (AlIZI ;;;j";~~-
FNI' (&01111I" lilt.
rAX TRANSMITTAL COVER SHEET
Date:
y- q -96
Timel
To: C~' I ~.,(J
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Pr'./()c(ia e;\~
HeBsag~: Cod../k.\\~..'> I('tt~\ m~ 0-,'((>:1 N'C"'f,'vu9 SI;:;"~f),Q12.
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Fall ,:
Page 1 of ;J-
If you do not receive all pages, pteaee call (602) 921-7545,
pages,
This lacBlmi II> IlIIIY cont.ain confid.mt.lal informat I.on illt~nrl,!,l r."
t.he 801e u,,, nf the recipient. named abovo. If t.It" r.,,,der '.>1 ~ 1.;'
IBc~\milc in not the intended recipient., or an ~mp\oyoe or n~.n'
aut.hor l7.p<1 to delivsr it to t.he intended recipient, the rP',,<1~' ;..
warned t.hat nny reading, dills9minfttion, dist.ribut.ion, or copyln'l ,.,
thl!'l facsimile is strictly prohibited. If you hilve received lid"
communi Cl\~, i on in error, please immodiatel Y not,l f,y 0.: hy t:n 1 "1"""'"
and destroy the materii\lB received or return them to U!l via ~h'"
United states postal Service.
Any error
constitute
privilegc,
in the transmission of t.his facsimile
a waiver of the att.orney-client privilege,
or any other applicablc privilege.
shall n,,1
work prO(ItI"~
4~;~;r A
RPR-OS-\9S6 1~:36
Founded 1978
Capital Recovery Associates, Inc.
SM
Mal' 9, 1991>
B}ilce & Shaw
3910 Suulll Rural Ruad
Suile B.I
Tempe. AZ 85282
Dear Mt, Shaw:
Enclosed IS a check for Ille agreed amOWll of 52700. lu sCllle your lwo clients: Maria Riley and Kimberly
Sherry, This check will he /\ill and final paymenl. in which eRA is requestiug Ileller releasing us from
any funhcr ubhgauun, Ahu. Ille pa>n1em of 5500. " null and void and should be relUmed promplly.
Thank yuu,
Sincerely, ,
/.-" ,
( ;..........~.:::::::,..c
Carl Burd
CWih
Enclusme
This is an ancmpltu cullecl a dehl,
E)t J, ;b,~
Any mfumlatiun ul~,"ncd "';11 be used for thaI purpose only,
F
ExecutIVe Offices' 324 Malkel Slleel. POBox 625, Lemoyne. PA 170,13.0625 (800) 486.0950 (717) 730.7062 Fax (717) 730.7070
.080tv96 P_-,.' J", '!'.,uER "I'H'" JIII't'EL
. ... -' r n r; L:,f. + .t't,.: LLP .. 71777307070
NO.555 P002-00,
THll.A..Om~o'
BYBEE & SHAW
Mo\AA C SlIAW
F,O\'O W Bftrl
~,o SourHRulI.alRO.Ill, SurTiB.1. Tpi, ARszOllA esm
T lWMllOf tIl2l ;2'. TSl3
FAa (lll2)1I6I.Q3lI
July 30, 1996
grrr VIA FACSIMlLE TO: (410) S47.o69~
~ BY REGULAR MAlL
Matthew Nayden. Esq
Ober. Kaler
120 E Baltimore Street
Baltimore. MD 21202
Re Joseph W. Draper
Your c1: Stacy Allen
Dear Mr Nayden
As per ow telephone discussion. please be advised that I have been retained by the above
referenced individual concerning a dUlllllllg letter he received from Stacy L Allen. Esq" regarding a
debt allegedly owed Walgreens I am enclosing a copy of the lener, re<<ived and'Tead by Mr. Draper.
for your convenience At present, it is my cIient's intention to file a law suit egainst Ms. ADen. eRA
Security Systems. Ine and Walgrcens. unless resolution of his c:1aims is reached,
Ms AIIen's letter sent to Mr Draper violated the Fair Debt Collection Practices Act.' IS
use See 1692 ~ Kg, and applicable Arizona state law in several respects,
First. Ms Allen's c:lient, CRA Security Systems Inc. remains unlicensed within the state of
Arizona. to coUect debts here Therefore, if C R. A. has no power or authority to coUect the alleged
debt owed Walgreens. obviously neither WI Ms Allen Thus, the letter violated 1692e (5) and (10)
Second, the letter contains numerous threats RgMding litigation over the N S F check Since
Ms Allen is notlieensed to practice law in Arizona, the threalS were false Moreover. since CRA is nOI
licensed by the Arizona Swe Banking DepartmCllt to coUect debts here, Ms. AIICl1 couId have taken no
action. including the 9/6/95 letter, on its behalf Lastly, in conducting my reasonable investigation of the
facts. purNalltto FRCP. lWIe II. it is my belief that WaIgrec:ns never authorized legal intervention on
beha1f of Ms Allen Based on the Ibove, I believe Ms. Allen, in flatt. did not even lnIIiI this letter,
Rather, CRA is responsible for its contents and mailing,
RUG-D6-1996 15:35
Exhibit A
410727136:'
P.02
e '4th ',bt'+ :t
08/06/96 15:35 FISHER FISHER. WINNER LLP ~ 71777307070
, .
NQ,555 P00J~006
Manhew Nayden, Esq
Obet.KaIer
July 30. 1996
Page-2-
r
At Ibis point. however, my client is wi1Iing to resolve his claims without 1itiaation. by releasing
you IIld your client from any and all liability concerning your illegal attempts to collect the debt owed
Walgreen.s for the following
(I) You ~ to pay the 5llm of Two Thousand Five Hundred Do11ars ($2.500,00) to
Mr. Draper in the fonn ora cenified check made payable to BYbee &. Shaw Trost
Ac.c.ount
I wiU dWy this matter for Monday. Augu~996, at 4:00 p,m (M ST), If I have not
received a reply by then. I will follow the insuuctions of my client and litigation wiU be initiated in the
Federal District Coun for the Distnct of Anzona alleging violations of the Fair Debt Collection
Practices Act,
t
!
Thank you for your prompl auention 10 this mauer
Sincerely,
BYBEE&. SHAW
m~~
Michael C, Shaw, Esq
. . .
THIS ENl'IRE LEITER IS MEANT SOLELY FOR
SETl'LEMENT PURPOSES PURSUANT TO RULE 40B OF
THE FEDERAL RULES OF EVIDENCE.
. . .
MCS/d
end as stated
cc, Clienl (without enclosures)
AUG-06-1996 15:36 4107271362
P,03
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in the above captioned action prior to sending said ten day
notice.
4. Defendants, on May 22, 1997, filed a Notice of Removal
in the above captioned action. A copy of the Certificate of
Service and cover letter to the Prothonotary are attached hereto
as Exhibit "C" and incorporated herein by reference.
5. In the Federal action, Plaintiffs filed a Motion to
Remand and Defendants filed a Motion to Dismiss for Lack of In
Personam Jurisdiction and Motion to Transfer Venue. A copy of
the Scheduling Order in the Federal action is attached hereto as
Exhibit "D" and incorporated herein by reference.
6. On July 1, 1997, Judge Rambo granted Plaintiff's Motion
to Remand the Federal Action and ordered the case transferred
back to Cumblerland County. A copy of the Judge Rambo's Order is
attached hereto as Exhibit "E" and incorporated herein by
reference.
7. On or about August 7, 1997, Defendants were sent a
Notice under Rule 236 that a Default Judgment had been entered
against them in the above matter.
B. The Default Judgment was entered in error since the case
was removed to Federal Court before the response was due pursuant
to the ten (10) day Notice and no additional ten (10) day Notice
was sent after the case was transferred back to Cumberland
County.
9. The preceding paragraphs demonstrate that Defendants'
failure to file an Answer is excusable since filing to remove a
2
state court action to federal court before the time to file a
response in the state court action pursuant to a ten (10) day
Notice of intention to enter Default Judgment eliminates the
right of Plaintiff to take a Default Judgment once the case is
transferred back to state court without resending another ten
(10) day Notice.
10. Count I of the Complaint requests Judgment for
$5,200.00. Plaintiffs allege in paragraph 64 of the Complaint
that $5,000.00 represents actual monies paid to Defendants and
that the $200.00 represents Attorneys fees. Nowhere in the
Complaint is the calculation of the $5,000.00 set forth. The
allegations in the Complaint only support a calculation of
$3,200.00 being paid to Defendants. Accordingly, the calculation
of the amount of the Default Judgment is erroneous.
11. A Default Judgment was entered in the total amount of
$34,000.00. That amount was calculated by adding all the amounts
requested for the various counts. Nonetheless, many of the
counts are duplicative in that they request the same damages
based upon monies being paid by Plaintiff to Defendants.
Accordingly, the Default Judgment is excessive.
12. The Judgment is improper and in violation of Pa. R.C.P.
1037 (b) (1) since the damages alleged in the Complaint are not a
sum certain or an amount which may be made certain by computation
and therefore a trial as to damages is required.
13. Defendants attach hereto as Exhibit "F" proposed
Preliminary Objections to the Complaint. The proposed
3
CAPITOL RECOVERY ASSOCIATES INC,
Plaintiff
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY. PENNSYLVANIA
v.
No. 97.871 Civil
BYBEE & SHAW, an Arizona Partnership,
& FLOYD BYBEE and MICHAEL SHAW
Defendants
Civil Action..Law
DATE: MAY 13, 1997
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN
THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF TIDS NOTICE, A
JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR
PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER
AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNO'J,' AFFORD ONE, GO TO OR TELEPHONE
THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP:
COURT ADMINISTRATOR
THIRD FLOOR
CUMBERLAND COUNTY COURTHOUSE
1 COURTHOUSE SQUARE
CARLISLE, PA 17013
(717).240.6200
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Shawn A. Bozarth, Esquire
Attorney for CRA INC,
120 South St.
Harrisburg, PA 17101
71 7-232-4227
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EXillBIT B
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,
1 Michael C. Shaw
2 Floyd W. Bybce
3910 S. Rural Road
3 Suite B-1 .
Tempe, Arizona 85282
4 (602) 921.7545
5 Derendants Pro Se
6
7
8
iN THE UNITED STATES DISTRJCT COURT
FOR THE MIDDLE D1STRJCT OF PENNSYLVANIA
9
10
11
12
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)
)
)
)
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CERTIFICATE OF SERVICE
CAPITAL RECOVERY ASSOCIATES, INC.
No, I.CV.97-646
13
Plaintiff.
14
15
16
v,
BYBEE & SHAW, an Ari7.ona Partncrship,
FLOYD BYBEE, and MICHAEL SHAW,
17
Derendant(s)
18
19
20
The undersigned hereby certifies that a true and correct copy or the Notice or Removal
21
has been sent to be filed with the Clerk and I or Prothonotary or the Common Court of Pleas in
and ror the State or Pennsylvania, Cumberland County on this ;l/lJ._d day May, 1997
22
23
24
25
~A -cy---
Floycr'Bybee
Copy orthe foregoing mailed
"-.7.2-"7 to:
Deanna Lynn Smith, 1101 North Front Street, Harrisburg. PA 17102
Shawn A. Bozarth, 120 South Street, Harrisburg, PA 17101
Attorneys ror Plaintiff
26
27
28
~//r
by
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CAPITOL RECOVERY ASSOCIATES INC.,
NO. CV: 97-~0
Plaintiff
v.
Hon. Sylvia Rambo
FILED
HARRISBURG,
BYBEE & SHAW, an Arizona Partnership,
& FLOYD BYBEE and MlCHAEL SHAW
Complaint in Law
Defendants
MARY'iSYI",P\Oi\
perul7T-
ORDER
AND NOW, this ~ day of ~7..' ,1997 upon consideration of the
foregoing MOTION TO POSTPONE CASE MANAGEMENT CONFERENCE:
IT IS ORDERED AND DECREED that the Case Management Conference scheduled to be
held on or before June 5, 1997 is postponed until after and within thirty days following this Court's
ruling on these motions:
a. Plaintiff's Motion to Remand.
b. Defendants' Motion to Dismiss for Lack orIn Personam ~urisdiction.
c. Defendants' Motion to Transfer Venue..
BY TIlE COURT:
If. .~~
via Rambo, C.],
-';'.::~..'';.~-;''-;';:':;'''T''''''''-_''
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EXHIBIT D I
on April 24, 1997, simultaneously filing a motion to dismiss for
personal jurisdiction, or, in the alternative, to transfer venue,
plaintiff responded to Defendants' motion on May 12, 1997 and
filed a motion to remand to the state court. In its motion to
remand, plaintiff argues that the amount in controversy does not
exceed the jurisdictional amount requirement of $75,000.1
plaintiff also contends that Defendants have not served notice of
removal upon the Prothonotary of the Cumberland Court of Common
pleas and have not, therefore, effectuated removal of the instant
case.
Defendants have not responded to Plaintiff's motion to
remand, nor have they filed a reply brief in support of their own
motion. Defendants' response to Plaintiff's motion was due May
27, 1997.2 On or about June 5, 1997, the court received a
telephone call from Defendant Shaw. Defendant Shaw represented to
the law clerk assigned to this case that he had not responded to
plaintiff's motion to remand because the documents he received
contained the caption number of the previously dismissed action,
Civil No. 1:CV-97-1BO. Defendant Shaw was informed that the
1 plaintiff mistakenly identifies the requisite jurisdictiona)
amount as $50,000. The amount in controversy requirement was recentl:
amended and effective January 17, 1997 changed to $75,000.
2 The Middle District Local Rules provide that a nonmovant
has fifteen days after service of the movant's brief ~o respond.
(M.D, Pa. R, 7.6). Federal Rule 0: Civil Procedure 6(e) adds three
days when service is accomplished oy mail. Federal Rule 6(a) exclude:
from computation the day on which the movant filed its motion.
2
motion had been correctly docketed in civil No. 1:CV-97-646. The
law clerk recommended to Shaw that he contact Plaintiff's counsel
,
explain his mistake, attempt to obtain additional time within
which to respond, and then communicate with the court.
On or about June 12, 1997, the court received a copy of
a letter addressed to Shaw from Plaintiff's counsel, indicating
that he would not agree to grant Shaw any additional time \~ithin
which to respond to Plaintiff's motion to remand. Shaw has not
communicated with the court in any manner since his telephone call
to chambers,
A review of the complaint reveals an allegation of an
amount in controversy of approximately $34,0000, an amount well
below the $75,000 jurisdictional amount requirement. Plaintiff's
complaint differs primarily from the complaint filed in Civil
Action No. 1:CV-97-1BO in its omission of Plaintiff's prior claim
for punitive damages in the amount of $500,000, and in its
reduction of the amount of damages claimed for defamation of
business reputation and intentional interference with contractual
relations. "As the plaintiff is considered to be -the master of
his or her own claim,' he may insulate a case from removal by
waiving a portion of his damages and asking for less than the
jurisdictional amount." Corwin Jeeo Sales. v. American Motor
Sales, 670 F.Supp., 596 (M.D. Pa, 1986) (Rambo, J.) (auotina 14A
Wright, Miller & ~::per, Federal Practice and Procedure,~ 3702 at
3
CAPITAL RECOVERY
ASSOCIATES, INC.
plaintiff
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-871 CIVIL TERM
BYBEE & SHAW, an Arizona
Partnership, and
FLOYD BYBEE, and
MICHAEL SHAW,
COMPLAINT IN LAW
.
.
Defendants
JURY TRIAL DEMANDED
PRELIMINARY OBJECTIONS
AND NOW, come Defendants Bybee & Shaw, an Arizona
Partnership, and Floyd Bybee and Michael Shaw individually, by
and through their Attorneys, KnUpp & Kodak, P.C. and
preliminarily objects as follows:
I. LACK OF PERSONAL JURISDICTION
1. Defendant Bybee and Shaw, is an Arizona Partnership, and
Defendants Floyd Bybee and Michael Shaw are residents of the
State of Arizona.
2. Defendants have not have the minimum contacts sufficient
for in personam jurisdiction under the Pennsylvania Long Arm
Statute, 42 Pa. C.S. ~s322 since Defendants' only contact with
the State of pennsylvania consisted of sending letters to the
State of Pennsylvania.
3. This Court does not have personal jurisdiction over the
Defendants.
WHEREFORE, Defendants request that plaintiff's Complaint be
dismissed.
"~ "'1,1.'''''\' , "',;.\i'
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EXlUBIT F
II. LACK OF SPECIFICITY
4. Plaintiff's Complaint is vague and lacks specificity as
follows:
a.) In paragraph 29, Plaintiff alleges that
"Defendants knowingly made a false statement". The alleged false
statement is not set forth;
b.) In paragraphs 30 and 31, Plaintiff alleges
"Defendant Shaw contacted one of CRA's major clients". The name
of the major client is not set forth;
c.) In paragraphs 34, 36, 37, Plaintiff alleges that
Defendants' practice is "illegal and wrongful". Plaintiff does
not specify in what way, if any, they believe that Defendants'
actions are illegal or wrongful;
d.) In Count V, and Count VI, Plaintiff requests a
specific amount of damages without setting forth any reasonable
basis for calculations of same;
e.) In Count V, Plaintiff alleges defamation.
Plaintiff fails to set forth the name of the person to whom the
alleged communication was made and the content of the
communication;
f.) In Count VI, Plaintiff alleges interference with
contractual relations. Plaintiff fails to identify its client or
in what way Defendants allegedly interfered with Plaintiff and
its client and to what extent, if any, the relationship between
Plaintiff and its client was harmed;
g.) In paragraph VI (Sic) Plaintiff alleges violations
2
CAPITAL RECOVERY
ASSOCIATES, INC.
Plaintiff
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
:
NO. 97-871 CIVIL TERM
: r:
COMPLAINT IN LAW
BYBEE << SHAW, an Arizona
Partnership, and
FLOYD BYBEE, and
MICHAEL SHAW,
Defendants
JURY TRIAL DEMANDED
ANSWER
AND NOW, come Defendants Bybee & Shaw, an Arizona
Partnership, and Floyd Bybee and Michael Shaw individually, by
and through their Attorneys, Knupp & Kodak, P.C. and respectfully
respond as follows:
JURISDICTION
1. Denied. It is specifically denied that Defendants
transacted business in Pennsylvania. Strict proof is demanded.
2. Denied. It is specifically denied that Defendants had
"minimum contacts" with Pennsylvania. It is specifically denied
that Defendants' contacts with Pennsylvania were purposeful in
order to realize pecuniary benefit and/or tortious injury to
Plaintiff. Defendants only informed Plaintiff in writing of its
violation of the Federal Fair Debt Collection Practices Act.
(Hereinafter "FDCPA").
VENUE
3. Denied. This action properly lies in Federal Court
under the FDCPA.
EXHIBIT G
PARTIES
4. Admitted.
S. Denied. After reasonable investigation, Defendants are
without knowledge or information sufficient to form a belief as
to the truth of the matter asserted. Strict proof is demanded.
6. Admitted.
7. Admitted.
GENERAL ALLEGATIONS
B. Admitted in part, denied in part. The March 13, 1996
letter contains no threat. It only sets forth Plaintiff's
violation of the FDCPA.
9. Admitted. It is admitted that Plaintiff alleoed that
Sherry had written an NSF check.
10. Admitted.
11. Admitted.
12. Admitted in part, denied in part.
for itself .
The document speaks
13. Admitted. It is admitted that Plaintiff alleged that
Riley had written an NSF check.
14. Admitted.
15. Admitted.
16. Denied. The $500.00 payment was to be credited towards
the entire amount due from Plaintiff to Defendant.
17. Admitted.
lB. Admitted in part, denied in part. The document speaks
for itself. It is denied that the document sets forth the
2
\
,
!
agreement of the parties.
19. Admitted.
20. Admitted in part, denied in part. Exhibit "H" confirms
that the $500.00 would be credit6d towards the Pollard
Settlement. Plaintiff received this letter and did not object to
its terms.
21. Admitted in part, denied in part. It is admitted that
Plaintiff alleged that Pollard wrote an NSF check.
22. Denied. By the terms of Exhibit "H", this payment was
not for the Sherry/Riley settlement.
23. Admitted in part, denied in part, The Five Hundred
Dollars ($500.00) was credited towards the Pollard settlement.
24. Admitted.
25. Denied. It was specifically communicated to Plaintiff
that this amount would be credited towards the Pollard
settlement. (See Plaintiff's Exhibit "H").
26. Admitted.
27. Denied. See response to paragraphs 22, 23 and 25
above.
28. Denied. See response to paragraphs 22, 23 and 25
above.
29. Denied. See response to paragraphs 22, 23 and 25
above. Plaintiff had full disclosure and knowledge of
Defendants' actions on June 3, 1996 and did not object to same.
30. Denied. Defendant at no time had any intent to damage
Plaintiff's business reputation. It is specifically denied that
3
Plaintiff's business reputation was damaged. Strict proof is
demanded.
31. Denied. See response to prior paragraph. Further,
said allegation is true.
32. Denied. Plaintiff was at least conducting some
business in the State of Arizona if not also in the State of
Connecticut.
33. Admitted in part, denied in part. It is admitted that
Plaintiff conducted activity in the State of Arizona. It is
denied that Defendants knew and acknowledged that same was
accidental.
34. Denied. It is denied that Defendants did anything
illegal or wrongful and/or filed malicious lawsuits.
35. Denied. Defendants filed suits and threatened legal
action if and when same were warranted. Defendants have no
information as to what Plaintiff believes or of what Plaintiff
has knowledge.
36. Denied. Responses to paragraphs 34 and 35 above are
incorporated herein by reference.
37. It is denied that Defendants had a scheme to defraud
and to seek monies through unconscionable and illegal means. In
paragraph 33 of Plaintiff's Complaint, Plaintiff admits that it
was not "licensed" in Arizona.
38. Denied. The allegations of paragraph 38 are
conclusions of law to which no response is required.
39. Denied. After reasonable investigation, Defendants are
4
without knowledge or information sufficient to form a belief as
the truth of the matter asserted. Strict proof is demanded.
40. Denied. It is denied that Defendants intended to
defraud, extort, interfere with Plaintiff's business and/or cause
injury and damage to Plaintiff's business reputation. It is
denied that Defendants willfully and maliciously published
defamatory statements. Strict proof is demanded.
41. Denied. After reasonable investigation, Defendants are
without knowledge or information sufficient to form a belief as
to the truth of the matter asserted. Strict proof is demanded.
42. Denied. After reasonable investigation, Defendants are
without knowledge or information sufficient to form a belief as
to the truth of the matter asserted. Strict proof is demanded.
43. Denied. After reasonable investigation, Defendants are
without knowledge or information sufficient to form a belief as
to the truth of the matter asserted. Strict proof is demanded.
44. Admitted. The document speaks for itself.
45. Denied. After reasonable investigation, Defendants are
without knowledge or information sufficient to form a belief as
to the truth of the matter asserted. Strict proof is demanded.
46. Denied. After reasonable investigation, Defendants are
without knowledge or information sufficient to form a belief as
to the truth of the matter asserted. Strict proof is demanded.
47. Admitted.
48. Admitted. Further, such dismissal is without
prejudice.
5
49. Admitted.
50. Admitted. Further, the violation of the FDCPA was the
same as previous violations which Plaintiff admitted and settled.
51. Admitted in part, denied in part. Defendants contacted
Plaintiff when Plaintiff violated the FDCPA. Said contacts were
legal.
COUNT I - FRAUD AND CONSPIRACY TO DEFRAUD
52. Denied. Defendants incorporates herein by reference
the responses to paragraphs 1 through 51 above.
53. Denied. plaintiff was advised of the status of the
$500.00 on June 3, 1996. (See Exhibit "H" to Plaintiff's
Complaint) and did not object.
54. Denied. All claims were valid under the FDCPA.
plaintiff acknowledged their violations and settled the claims.
55. Denied. These allegations are conclusions of law to
which no response is required. said allegations are irrelevant
to Plaintiff's violations of the FDCPA.
56. Denied. These allegations are conclusions of law to
which no response is required. Said allegation is irrelevant to
plaintiff's violations of the FDCPA.
57. Denied. These allegations are conclusions of law to
which no response is required. Said allegation is irrelevant to
Plaintiff's violations of the FDCPA.
58. Denied. These allegations are conclusions of law to
which no response is required. Said allegation is irrelevant to
Plaintiff's violations of the FDCPA.
6
r
,"
59. Denied. Defendants did not acknowledge that
Plaintiff's activity within the State of Arizona was accidental.
Plaintiff admits it transacts business in Arizona without a
license in paragraph 33 of its Complaint. It is denied that
Plaintiff has a viable defense to the alleged FDCPA violations
and claims.
60. Denied. Defendants cannot estimate how costly or time
consuming it would be for Plaintiff to defend a law suit in
Arizona. Strict proof is demanded.
61. Denied. All payments by Plaintiff were voluntary,
after arms length bargaining, and occurred as a result of
Plaintiff's violation of the FDCPA.
62. Denied. No misrepresentations were made to Plaintiff.
Defendants have no knowledge as to upon what Plaintiff relied.
Defendants assumed that the payments were made because Plaintiff
knew that they repeatedly violated the FDCPA. Further, Plaintiff
had the responsibility to independently assess the claims of
Defendants prior to settling same.
63. Denied. See response to paragraph 62 above.
64. Denied. It is denied that Defendants made
misrepresentations. It is specifically denied that Plaintiff
sustained damages. It is specifically denied that if Plaintiff
sustained damages they are in the amount of $5,000.00. The total
amount paid by Plaintiff to Defendants was $3,200.00. Strict
proof is demanded.
WHEREFORE, Defendants respectfully requests that this
7
Honorable Court enter judgment in favor or Defendants and against
the Plaintiff.
COUNT II - UNJUST ENRICHMENT
65. Denied. Paragraphs 1 through 64 are incorporated as
set forth above are incorporated herein by reference.
66. Denied. plaintiff was informed of the disposition of
the $500.00 and did not object to same.
67. Denied. It is denied that Defendants' clients engaged
in tortious activity, Defendants did nothing improper. Further,
according to Plaintiff's Complaint, the total amount paid the
Defendants by Plaintiff was only $3,200.00.
WHEREFORE, Defendants respectfully requests that this
Honorable Court enter judgment in favor or Defendants and against
the Plaintiff.
COUNT III - BREACH OF CONTRACT
68. Denied. Paragraphs 1 through 67 as set forth above are
incorporated herein by reference.
69. Admitted.
70. Admitted.
71. Admitted in part, denied in part. Defendants did not
return the $500.00 due to other pending cases against the
Plaintiff. As set forth in Exhibit "F" of Plaintiff's Complaint,
Defendants proposed to apply said money towards the "Pollard"
settlement. Plaintiff did not object to same.
WHEREFORE, Defendants respectfully requests that this
8
Honorable Court enter judgment in favor or Defendants and against
the Plaintiff.
COUNT IV - FRAUD WITH RESPECT TO SETTLEMENT AGREEMENTS
72. Denied. The allegations of paragraphs 1 through 71 as
set forth above are incorporated herein by reference.
73. Admitted.
74. Denied.
75. Denied.
violated the FDCPA.
76. Denied.
77. Denied.
See response to paragraph 71 above.
Defendants only sued Plaintiff when Plaintiff
Defendants never threatened Plaintiff.
See response to paragraph 71 above.
It is specifically denied that Defendant made
any misrepresentations.
78. Denied. It is specifically denied that there were any
misrepresentations. The settlement of the Sherry/Riley claim and
an earlier claim were arms length transactions. Plaintiff had
the responsibility to independently assess the claims of
Defendants prior to settling same.
79. Denied. There were no acts by Defendants which caused
damage to Plaintiff. Any alleged damages are denied as
hypothetical and speculative and strict proof of any calculation
thereof is demanded at trial.
WHEREFORE, Defendants respectfully requests that this
Honorable Court enter judgment in favor or Defendants and against
the Plaintiff.
9
COUNT V - DEFAMATION TO BUSINESS REPUTATION
80. Paragraphs 1 through 79 as set forth above are
incorporated herein by reference as if set forth at length.
81. Denied. It is denied that Defendants made any
defamatory statements regarding Plaintiff and its business
practices. Strict proof is demanded.
82. Denied. After reasonable investigation, Defendants are
without knowledge or information sufficient to form a belief as
to the truth of the matter asserted. Plaintiff fails to allege
where, when and to whom said statements were allegedly made.
Strict proof is demanded.
83. Denied. After reasonable investigation, Defendants are
without knowledge or information sufficient to form a belief as
to the truth of the matter asserted. Specifically, Plaintiff
fails to state where, when and to whom the alleged statements
were made. Strict proof is demanded.
84. Denied. After reasonable investigation, Defendants are
without knowledge or information sufficient to form a belief as
to the truth of the matter asserted. Specifically, Plaintiff
fails to state where, when and to whom the alleged statements
were made. It is specifically denied that Defendants defamed
Plaintiff in any way. Strict proof is demanded.
85. Denied. After reasonable investigation, Defendants are
without knowledge or information sufficient to form a belief as
to the truth of the matter asserted. Specifically, Plaintiff
fails to state where, when and to whom the alleged statements
10
were made. Further, the alleged monetary injuries are
hypothetical and speculative and strict proof of any calculation
thereof is demanded at trial.
WHEREFORE, Defendants respectfully requests that this
Honorable Court enter judgment in favor of Defendants and against
the Plaintiff.
COUNT VI - INTENTIONAL INTERFERENCE WITH
CONTRACTUAL RELATIONS
86. Denied. Paragraphs 1 through 85 as set forth above are
incorporated herein by reference as if set forth at length.
87. Denied. The allegations are conclusions of law to
which no response is required. Defendants have no knowledge of
Plaintiff's contractual relationship with its client. Plaintiff
fails to identify the client to which it refers. Strict proof is
demanded.
88. Denied. After reasonable investigation, Defendants are
without knowledge or information sufficient to form a belief as
to the truth of the matter asserted. Specifically, the
allegations of this paragraph are vague. The allegations of this
paragraph are conclusions of law to which no response is
required. Strict proof is demanded,
89. Denied. After reasonable investigation, Defendants are
without knowledge or information sufficient to form a belief as
to the truth of the matter asserted. Specifically, the
allegations of this paragraph are vague. The allegations of this
11
paragraph are conclusions of law to which no response is
required. Any alleged damages are denied as hypothetical and
speculative and strict proof of any calculation thereof is
demanded at trial.
WHEREFORE, Defendants respectfully requests that this
Honorable Court enter judgment in favor of Defendants and against
the Plaintiff.
COUNT VI ISICI- UNFAIR BUSINESS PRACTICES
90. Denied. Paragraphs 1 through 89 as set forth above are
incorporated herein by reference as if set forth at length.
91. Denied. The alleg~tions are conclusions of law to
which no response is required. The allegations are vague in that
they do not specifically set forth in what way, if any, the
Unfair Trade Practices and Consumer Protection Act (hereinafter
"UTPCPA") was violated. Strict proof is demanded.
92. Denied. The allegations are conclusions of law to
which no response is required. Upon reasonable investigation,
Defendants are without knowledge or information sufficient to
form a belief as to the truth of the matter asserted.
Specifically, Plaintiff fails to state which acts of Defendants
were allegedly unconscionable and which acts of Defendants
allegedly violated the UTPCPA. Allegations regarding enjoining
Defendants' actions are denied. They are improperly pled in a
civil action.
WHEREFORE, Defendants respectfully requests that this
12
VERIFICATION
I, Michael Shaw, hereby verify that the statements made in the
foregoing document are true and correct, and further, I understand
that false statements therein are made subject to the penalties of
18 Pa.C.S.A. ~ 4904 relating to unsworn falsification to
authorities.
'1n1I~roP~
Michael Shaw
I
Date: /.).-//-9'6
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understood that a judgment would be cntcrcd against them, Judgc Rambo's Ordcr was
dated an entire month before thc defaultjudgemcnt was cntered, Defendants werc clcarly
on notice that the state action was pending against thcm; had rcccivcd both a Noticc to
Plead on the Complaint indicating thcrc was a 20-day responsc rcquired and rcceivcd a
lO-day notice indicating thatjudgcment would be entcred.
9, Denied, Dcfendants had continuous knowledge of thc pending state action; defended
against their action in the Middle District of Pennsylvania two times; made numerous
telephone calls to both Attorney Smith and Attorncy Bozarth regarding the case,
indicating their knowledge of the pending state action; were in contact with several
attorneys in Arizona regarding the execution of the judgment; and, waited over a year
and a half to exercise any rights with respect to the judgment, despite their knowledge of
same.
10, Denied,
II. Denied, The amount of the claim was valued by both the allegations in the Complaint
and Judge Rambo's order valuing the case. By way of further response, Defendants had
ample time and notice to exercise their rights if they disagreed with the judgment.
12, This is a conclusion of law to which no response is required; to the extent a response is
required, it is hereby denied and strict proof of same is required at time of trial.
13. This is a conclusion of law to which no response is required; to the extent a response is
rcquired. it is hereby dcnied and strict proof of samc is rcquired at timc of trial.
14. This is a conclusion of law to which no response is rcquired; to thc extent a rcsponse is
required. it is hercby denied and strict proof of same is required at timc of trial.
15. This is a conclusion of law to which no response is required; to the extent a response is
...
rcquircd. it is hcrcby dcnicd and strict proof of samc is rcquircd at timc uf trial.
16. Denied. The Judgmcnt was cntcrcd ovcr unc and onc halfycars ago, during which thc
entire time, Defcndants had knowlcdgc of and noticc of the statc procecding, Defcndants
chose to ignorc samc. despitc Plaintiff's attempts to enforcc said judgment for the past
year in Arizona,
PLAINTIFF'S NEW MATTER
17, On October 29, 1999. Dcfendants wcrc scrvcd with a writ of gencral execution regarding
the judgment in question by the sheriff in Muricopy County, Arizona, (Copy will be
provided.)
18, On December 7.1998, Defendants werc servcd with a subpoena duces tecum for thc
Superior Court of Arizona. Maricopa County, requiring infonnation on Defendants'
assets, (Copy will be provided,)
19. Prior to October 29, 1999, the law linn of Fennemore and Craig of Phoenix, Arizona was
in contact with Defendants regarding the judgment. (Affidavits will be provided.)
20, Prior to and after August 7. 1998. thc date of the judgment, Defcndants had numerous
contacts with both attorncys for Plaintiff rcgarding the state action.
21. Plaintiff asscrts that Defendants had sufficient notice of the state action.
22, Plaintiff asserts that Defendants had sufficicnt notice of the judgment.
23. Plaintiff asserts that Defendants failed to reply in a timely manner to the judgment,
waiting over one and one half years.
24, Plaintiff objects to the opening and/or striking of the judgment.
25. Plaintiff was properly served with this Ilonorable Court's rule to show cause on
January 4. 1998. and respondcd in a timely manncr.
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CAPITAL RECOVERY
ASSOCIATES,lNC,
Plaintiff.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v,
No 97-871 CIVIL TERM
BYBEE & SHA W,
FLOYD BYBEE. AND
MICHAEL SHAW
Defendants,
NOTICE OF DEPOSITION WITH REOUEST FOR PRODUCTION
TO: DEFENDANT AND TO THE COUNSEL OF RECORD:
PLEASE TAKE NOTICE that on January ~1999, at ~O~,::nd continuing until
complete, before an individual authorized to administer oaths, plaintiff will take the deposition
upon oral exwnination of DEFENDANT MICHAEL SHA W. The deposition will taken pursuant
to Pa,r.C.P, 4007.1. VIA telephone conference. for all purposes therewith,
Pursuant to Pa.R.C.P. 4007.1(d)(I) and 4009.1 el seq., defendant is further requests to
produce, at the deposition, the documents and things described more particularly in the attached
schedule,
8')
Dated: January l\1999
J; j JJti;A,
By:
Deanna Lynn Smith
Attorney for Plaintiff
76 Greenmont Drive
Enola, P A 17025
717-732-3750
Fax 717-728-9498
law, specifically but not including, all lawsuits threatencd or filed by you pursuant to the
Fair Debt Colleetion Pmctices Act, 15 U,S,C, 91692 et seq, (FDCPA), and disputed facts
alleged with particularity in the pleadings.
2, Provide the name. last known addrcss and tclcphone number of all such persons in
Pennsylvania to whom you threatcned or filed lawsuits under the FDCPA, as alleged in
the Complaint, including but not limited to records of telephone calls, letters, facsimiles,
and pleadings.
3, Provide all documents related to your fee agreements, engagement letters, representation
policies, records of retainers, and/or contracts between you and your clients when
pursuing an FDCP A threatened or filed lawsuits,
4, Provide all documents related to your agreements. letters, facsimiles, telephone records,
pleadings, representation policics and/or contracts between you and the individuals you
represented against Plaintiff,
5, Provide all documents pertaining to your compliance or noncompliance with the rules of
professional conduct for attorneys practicing in the State of Arizona, the fedeml court
where you practice, Please include all orders, memoranda, opinions and/or documents
regarding any sanctions imposed, fines, penalties for your noncompliance.
6, Copies of any insurance agreement under which any person carrying on an insurance
business may be liablc to satisfy all or part of a judgment that may be entered in this
action or to indemnify or reimbursc you for payments made to satisfY the judgment.
7, Copies of all telephone invoices, bills, records for the period stated.
8. Copies of any litigation, administrative action. judgments, court opinions, complaints and
consent orders relating to you and your practice oflaw. including but not limited to
violations of the Rules of Profession Conduct fllr attorneys in the state of Arizona, Rule
II Sanctions in the federal court in which you practice. lawsuits for malpractice, errors or
omissions or lawsuits similar to the suit brought by Plaintiff,
9, Copies of all training, education, seminar materials obtained by you for the practice of
law/continuing legal education or similar materials, for the period requested.
10, Copies of all documents provided to and by persons consulted by you with respect to your
practice of law pursuant to the FDCP A. Please include all attorneys contacted outside
the state of Arizona who have provided documentation, infonnation, pleadings on the
FDCPA.
II. Copies of all documents provided to and by persons consulted by you with respect to your
practice threatening/filing lawsuits against Plaintiff, Please include all attorneys
contacted outside the state of Arizona who have provided documentation, infonnation,
pleadings regarding Plaintiff.
12, Copies of all documents transmitted l.Q you. by you. or on behalf of you, or any other
person or entity concerning PlaintifT's alleged collection practices.
13. Copies of all documents reflecting billing. invoicing and/or contingent fee arrangements
between you and the clients you represented against Plaintiff,
14. Copies of all documents reflecting your communications with regulatory authorities
coneerning Plaintiff,
15, Copies of all documents reflecting your communications with clients and other
individuals regarding. either directly or indirectly. the Plaintiff or individuals employed or
associates with Plaintiff,
16, Copies of all reports. memoranda. letters, facsimiles. notes. regarding PlaintifT's case/
matter,
17, Copies of all records of any consultation with individuals inside and outside the state of
Arizona regarding Plaintiff's case/matter.
18, Copies of all letters, facsimiles, pleadings, correspondence. and similar items sent by you
to the Commonwealth of Pennsylvania.
19, Copies of all federal, state and other income related tax returns (including W-2's,
schedule and wnendments) filed: (i) by or on behalf of you anywhere and at any time
since 1995; and/or (ii) by Of on behalf or any business enterprise in which you currently
hold or at any time held any ownership or other interest at any time since 1995.
20. All documents which evidence. regard. refer or relate to any o....nership or other interest in
any account of any nature whatsoever (including, but not limited to, any checking
account, savings account, money market account, investment account, certificate of
deposit, retail repurchase agreement or other account) held or maintained by, on behalf of,
for the benefit of or in trust for you with any person or business enterprise (including,
without limitation, any bank, savings and loan, credit union, depository, brokerage finn or
investment entity) at any time since 1995.
21. All documents which evidence. regard, refer or relate to the purchase. option to purchase,
sale or ownership of any gold. silver or other bullion, and precious stones or semi.
precious stones by, on behalf of, for the benefit of, or in trust for you at any time since
1995,
22, All documents which evidence. regard. refer. or relate to any ownership or other interest
in any certificate. share of stock, bond or other security whatsoever held or maintained by,
on behalf of, for the benefit of. Of in trust for you at any time since 1995,
23. All documents which evidence, regurd, refer. or relute to uny ownership or other interest
in any contmct, promissory note, dmlt. negotiable instrument, mortgage. deed of trust, bill
of exchange. pledge ugreement. account receivable. or commercial paper held by and/or
payable to, on behalf of, for the benefit of. or in trust for you at anytime since 1995,
whether or not the same is now due and/or payable,
24, All documents which evidence. regard. refer or relate to any ownership or other interest in
any personal property of value in excess of $250 held b or maintained by, on behalf of.
for the benefit of. or in trust for you at any time since 1995,
25. All documer.ts (including. but not limited to, deeds, contracts of sale, leases, trust
agreements and property assessment notices) which evidence. regard, refer or relate to
any ownership or other interest in any real property held or maintained by, on behalf of,
for the benefit of, or in trust for you at any time since 1995.
26, All documents which evidence. rcgurd. refer or relate to any ownership or other interest in
any personal property of a value in excess of $250 Sold, transferred, gifted, put into trust,
encumbered. or otherwise conveyed by. on behalf of, or for the benefit of you at any time
sincel995,
27. All documents which evidence. regard, refer or relate to any ownership or other interest in
any real property sold, transferred, gifted, put into trust, encumbered, or otherwise
conveyed by, on behalf of, or for the benefit of you at any time since 1995.
28, All document (including, but not ,limited to, any corporate charter, certificate of
incorporation (including all amendment). bylaws. stock transfer book. minute book,
partnership agreement. articles of organization (including all amendments), opemting
agreements. records of capital contribution, transfer books and member books) which
evidence. rcgard. rcfer or rclatc to any bu~incss entcrprisc in which you (in your own
name, or by any person on behalf of. for the bcnefit of. or in trust for you) currently have
any ownership or other interest or had any owncrship or other interest at any time since
1995,
29, All documents which evidence, regard, refer or relate to any business enterprise in which
you currently hold any position (including. without limitation. any position as an officer,
director or employee) or in which you held any position at any time since 1995,
30, All documents which evidence. regard. rcfcr or relate to ny money or other thing of value
paid. given or transferred to you by any person or business enterprise for any reason
whatsoever at any time since 1995.
31. All documents which evidence, regard, refer or relate to any money or other thing of
value owed, owing, or payable to you now or at any time in the future by any person or
business enterprise for any reason whatsoever at any time since 1995.
32, All documents which evidence, regard. refer or relate to any fire, burglary, homeowners.
automobile, or other insurance policy in force upon any real or personal property which is
or was held or maintained by. on bchalf of, for the benefit of, or in trust for you at any
time since 1995 (including copies of such inventories thereon),
33, All accident, health or life insurance policies upon your person or in which you are or
were nllmed as a beneficiary. in force at any time since 1995,
34, The keys to all safety deposit boxes wherever situated, issued to and/or held by, on behalf
of, for the benefit of. or in trust for you at any time since 1995.
35. All certificates of title and/or bills of sale to automobiles. motor vehicles, aircraft, and/or
water-crafts owned or leased (in wholc or part) by. on behalf of, for the benefit of. or in
"
36.
37.
trust for you or any time since 1995,
All soeial security cards held by, on bchalf of. for the bcncfit of, or in trust for you.
All documents (including. but not Iimitcd to. chcckhook. check registcrs and Icdgers)
Which show any receipt and/ or disbursement of money or any other thing of value by or
to you, and/or on behalf of you, for your benefit. or in trust for you at any time since
1995,
38. All documents which evide4nce, regard, refer or relate to any litigation, pending or
threatened, against you ( and/or any business enterprise in which you hold any ownership
or other interest).
39. All documents including. but not limited to judgments or record and/or settlement
agreements) resolving litigation in which you (and/or business enterprisc in which you
hold or held any ownership or other interest) were a named party at any time since 1995.
40, All documents (including. but not limited to net worth and/or financial statements) which
evidence, regard, refer or relate to the assets, liabilities and net worth prepared by, on
behalf of, or for the benefit of you and/or given to any person or business enterprise
(including, but not limited to any bank, savings and loan, credit union, financial
institution, or finance company) at any time since 1995.
41. All documents which evidence, regard. rcfer. or relate to you acting as executor. personal
representative. administrator, trustee, receiver guardian or in a nay other capacity under
any will, trust agreement or Court appointment at any time since 1995,
42, A complete list or inventory of all real property and personal property in which you have
held or maintained any ownership or other interest at any time since 1995 and/or in which
any person has held or maintained any ownership or other interest on behalf of, for the
benefit of, or in trust for you at any timc sincc 1995. which has bcen sold, convencd.
giSficd. put into trust, or otherwisc transfcrrcd to any person or busincss entcrprise.
including the date of the transfer and the name and address of the person or business
enterprise to whom it was transferred,
43. To the extent not otherwise listcd abovc, all documents which cvidencc, regard. refcr or
relatc to any contract or agrccmcnt bctwccn: (I) you in your namc, or by any person on
behalf of. for thc benefit of. or in trust for you; and/or (ii) any person or business
enterprise, either written or verbal, at any timc since 1995,
44. To the extent not otherwise listed abovc. a list of cashier's checks, money orders,
traveler's ehecks, certificates of deposit, utility deposits and other deposits of any nature
whatsoever, advance payments to any person or business enterprise, and airline tickets
held by, on behalf of, for the benefit of, or in trust for you.
Respectfully submitted,
Dated: r d;) , rCf
)IJ :I ~ttJt
Deanna Lynn Smith
Attorney 1011 77414
Attorney for Plaintiff
76 Greenmont Drive
Enola. Pennsylvania 17025
(717) 732-3750
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
-
CAPITAL RECOVERY
ASSOCIATES, INC.
Plaintiff
NO. 97-871 CIVIL TERM
BYBEE & SHAW, an Arizona
Partnership, and
FLOYD BYBEE, and
MICHAEL SHAW,
COMPLAINT IN LAW
Defendants
JURY TRIAL DEMANDED
ORDER
AND NOW, this 13~ day of
j2).e.....~
, 1998,
upon consideration of the foregoing petition, it is hereby
ordered that
(1) a Rule is issued upon the Respondent to show cause why
the Petitioner is not entitled to the relief requested;
(2) the Respondent shall file an Answer to the Petition
within ~ days of this date;
(3) the petition shall be decided under Pa. R.C.P. No.
206.7;
(4) depositions shall be completed within ~S days of
this date;
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(5) argument shall be held on -1Y) D.Ad.. .3
o:t.~/1'a.'d..,,-~ ~ Ck~ ~ aJ-;t4.
ev~.A.......",", gf ~qe' Cumberland County Courthouse;
and
(6) notice of the entry of this Order shall be provided to
all parties'by the Petitioner.
(7) all proceedings shall stay in the meanwhile.
TRUE COpy FROM RECORD
In Test:mony whereof, IIHe unlo set my hand
and the seal of said Court at Carlisle, Pa.
This ...I.J.!!::.. day 01...,1;> ~ . 10 7' 8'
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BY THE COURT:
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CAPITAL RECOVERY
ASSOCIATES, INC.
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-871 CIVIL TERM
BYBEE & SHAW, an Arizona
Partnership, and
FLOYD BYBEE, and
MICHAEL SHAW,
COMPLAINT IN LAW
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Defendants
JURY TRIAL DEMANDED
STIPULATION TO EXTEND TIME
FOR DEPOSITIONS. FILING OF
BRIEFS AND ARGUMENT
Capital Recovery Associates, Inc. by and through their
Attorney Deanna Lynn Smith and ByBee& Shaw, an Arizona
Partnership, and Floyd ByBee and Michael Shaw, Defendants, by and
through their Attorney Gary J. Imblum, hereby stipulate and agree
that each party shall be granted an extension until May 6, 1999
to take depositions, file briefs and list for argument
Defendants' Motion for Relief from Judgment. This Stipulation
shall be considered an extension of the time limits indicated in
this Court's Order of December 18, 1998. A copy of said Order is
attached hereto.
Date:
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Gary J, I 1
or Defendants
Date:
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Deanna Lynn ~th-
Counsel for Plaintiff
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'l7VUT1H'T' A
Robort L, Knupp
Robert 0, Kodak
Gary J, Imblum
LAW OFFICES OF
KNUPP, KODAK & IMBLUM, P.C,
CAMERON MANSION
407 NORTH FRONT STREET
POST OFFICE BOX 1184B
HARRISBURG, PA 17108-1B4B
Tolophane: 7171238-7151
Facsimile: 717123B-7158
omail: kondkpc@aol.com
February 8, 1999
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Robort Ewing Knupp
(1909-1976)
Robert H. Mouror
(1923-199B)
MICHAEL C SHAW ESQUIRE
FLOYD BYBEE, ESQUIRE
3910 S RURAL ROAD STE B 1
TEMPE AZ 85282
RE: Capital Recovery v, Bybee & Shaw, et a1.
Civil Action No, 97.871
Dear Mike & Floyd:
I enclose herewith a copy of the bilI for January. Please be advised that I will require at least
$1,000.00 on this bilI in February. I will need to receive $500.00 by February 15, 1999 and another
$500,00 by the end of February, 1999, Ifl do not receive same, I will not be able to represent you
further in this matter,
Very truly yours,
GJI/at
Enclosure
EXHIBIT B
, .
CAPITAL RECOVERY
ASSOCIATES, INC.
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-871 CIVIL TERM
BYBEE & SHAW, an Arizona
Partnership, and
FLOYD BYBEE, and
MICHAEL SHAW,
I
I COMPLAINT IN LAW
Defendants
JURY TRIAL DEMANDED
CERTIFICATE OF CONCURRENCE/NONCONCURRENCE
I, Gary J. Imblum, spoke with Deanna Lynn Smith, Attorney at
Law, attorney for the Plaintiff on March 2, 1999. Attorney Smith
indicates that she neither consents nor objects to the within
Motion but wanted her concern that to avoid delay the case
proceed to Argument Court in May to be known.
Respectfully submitted,
KNUPP, KODAK
/' Gary J. Imb um
Attorney I . No. 42606
407 North ront Street
Harrisbur , PA 17108
(717) 238-7151
Date:
t')- <6 f7 ~
Attorney for Defendants
, '
CERTIFICATE OF SERVICE
I, GARY J. IMBLUM, ESQUIRE, hereby certify that I have this
date served a true and correct copy of the Petition to Withdraw
Appearance in the above-captioned matter upon the below listed
individual(s) by causing same to be deposited in the United States
mail, first class postage prepaid at Harrisburg, Dauphin County,
Pennsylvania, addressed as follows:
BYBEE & SHAW
FLOYD BYBEE ESQ
MICHAEL SHAW ESQ
3910 S RURAL ROAD STE B 1
TEMPE AZ 85282
DEANNA LYNN SMITH ATTORNEY AT LAW
76 GREENMONT DRIVE
ENOLA PA 17025
Gary J. Imbl m
407 North Font
Post offic Box
Harrisburg, PA
(717) 238-7151
Attorney I.D. No. 42606
Attorney for Defendants
Street
11848
17108-1848
Dated:
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