HomeMy WebLinkAbout03-2125NOTICE TO PLEAD
TO THE DEFENDANT NAMED HEREIN:
You have been sued in court. If you wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this Complaint is served, by
entering a written appearance personally or by attorney and
filing in writing with the court your defenses or objections to
the claims set forth against you. You are warned that if you
fail to do so, the case may proceed without further notice for
any money claimed in the Complaint, or for any other claim or
relief requested by the Plaintiff. You may lose money or
property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA
717-249-3166
800-990-9108
NOTICIA
Le han demandado a usted en la corte. Si usted quire defenderse de
estas demandas expuetas en las paginas siquientes, usted tiene viente (20)
dias de plazo al partir de la fecha de la excrita o en persona o pot abogado y
archivar en la corte en forma excrita sus defensas o sus objectiones a las
demande, la corte tomara medidas y puede entrar una orden contra usted sin
previo aviso o notificacion y por cualquier queja o alivio que es pedido en la
peticion de demanda. Usted puede perder dinero o sus propiedades o otros
derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADOO SI
NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICION, VAYA EN PERSONA O LLAME
POR TELEFONO A LA OFICINA CUYA DIRECCION SE PUEDECONSEGUIR ASISTENCIA LEGAL.
PAULA MUMBAUER,
Plaintiff,
JBC & ASSOCIATES, P.C.
Defendant.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
:PENNSYLVANIA
COUNT I
Jurisdiction for this action is asserted pursuant to the Fair Debt Collection Practices Act,
15 U.S.C. {}1692, et seq. ("FDCPA"), particularly 15 U.S.C. {}1692k(d) and 28 U.S.C.
{}1337.
Venue lies in this District pursuant to 28 U.S.C. 1391(b).
Plaintiff is an individual and consumerpursuant to 15 U.S.C. {} 1692a(6)..
Defendant is a debt collector/business entity(ies) engaged in the business of collecting
debts within this Commonwealth via letters and telephone calls, with its principal place
of business located at 2 Broad Street, 6~ Floor, Bloomfield, New Jersey, 07003-2591.
Defendant communicated with plaintiff on or after one year before the date of this action,
in connection with collection efforts, by letters, telephone contact or other documents,
with regard to plaintiff's alleged and disputed debt.
Defendant is a debt collectors as defined by 15 U.S.C. {}1692a(3).
Defendant sent a letter to Plaintiff, dated March 6, 2003, which are a "communications"
relating to a "debt" as defined by 15 U.S.C. §1692a(2) and §1692a(5).
At all pertinent times hereto, defendants were hired to collect an alleged debt relating to a
consumer transaction. (Hereinafter the "alleged debt.")
The FDCPA applies to obligations and alleged obligations.
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Defendant alleged that Plaintiff owed an obligation to one of its clients for the purchase
of personal/household/consumer goods.
The FDCPA defines debt very broad, as an obligation, which is not specific as compared
to the definitions of credit contained in other subsections of the Truth in Lending Act.
A check is covered under the FDCPA. See, Charles v. Lundgren & Associates, P. C. et
al., 119 F.3d 739 (9th Cir. 1997); Bass v. Stolper, Koritzinsky, Brewster & Neider, et al,,
111 F.3d 1322, (7th Cir. 1997); Snow v. Riddle, P. C., No. 97-4045 (10th Cir. 1998); and
Duffy v. Landberg, et al., No. 97-1560 (Sth Cir. 1998).
Defendant, in its collection practices, used the same mass-mailed, form letters, same
telephone contact and the same collection practices as collection agencies that collect on
accounts.
Defendant in its collection efforts, demanded return check fees in violation of
Pennsylvania law, 18 Pa.C.S. §4105(e)(3), and a violation of state law is a violation of the
FDCPA.
Defendant Telecheck, in its collection efforts, demanded return check fees in violation of
the FDCPA, 15 U.S.C. §1692f(1) and 1692e(2)A and B.
The FDCPA states, a debt collector may not use unfair or unconscionable means to
collect or attempt to collect any debt. Without limiting the general application of the
foregoing, the following conduct is a violation of this section: (1) The collection of nay
amount (including any interest, fee, charge or expense incidental to the principal
obligation) unless such amount is expressly authorized by the agreement creating the debt
or permitted by law. 15 U.S.C. §1692f(1).
The FDCPA states, a debt collector may not use false, deceptive or misleading
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representation or means in connection with the collection of any debt. Without limiting
the general application of the foregoing, the following is a violation of this section, (2)
The false representation of (A) the character, amount or legal status of any debt, or (B)
any services rendered or compensation which may be lawfully received by any debt
collector for the collection of a debt. 15 U.S.C. §1692e(2)A and B.
There was never an express agreement by Plaintiff to pay any additional fees.
Pennsylvania law permits a $20.00 fee, upon conviction.
There was no conviction in this case.
In fact, these alleged debts are over 5 years old and were paid over 5 years ago.
Defendant's letters were false, misleading and deceptive and failed to inform Plaintiff of
her rights under the FDCPA.
The form of Defendant's letters was intentionally confusing, deceptive and misleading.
Defendant's letter failed to inform Plaintiff that she is entitled to make partial payments,
in violation of 15 U.S.C. §1692h.
The language of Defendant's letters was intended to intimidate and coerce Plaintiff into
paying the alleged debt.
Plaintiff believes and therefore avers that he was confused, mislead and deceived by
Defendant's mass mailed for letters. In re Belile, 208 B.R. 658 (E.D. Pa 1977).
Defendant's letter created a false sense of urgency in both Plaintiff as well as would
create same in the least sophisticated consumer. Tolentino v. Friedman, 833 F. Supp. 697
(N.D. I11. 1993); Sluys v. Hand, 831 F. Supp. 321 (S.D.N.Y. 1993); and Rosa v. Gaynor,
784 F. Supp 1 (D. Conn. 1989).
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Defendant's letter was intentionally confusing and deceptive, in violation of 15 U.S.C.
§1692e(S) and (10), §1692f(8) and §1692j.
Defendant's conduct rises to the level required for punitive damages due to the form and
language of its notice and the continuous and repetitive nature of the violations under the
FDCPA.
Plaintiffs believe and therefore aver that attorneys are liable for their letters and telephone
contacts. Clomon v. Jackson, 988 F.2d 1314, (2na Cir. 1992).
Plaintiffs believe and therefore aver that an attorney did not afford Plaintiff account
individual review, otherwise, defendant would have known that Plaintiff was not liable
for the alleged debt, thus violated the FDCPA and Bitah v. Gobal Collection Sorv., 1997
WL 369437. See also, Avila v. Rubin, 84 F.3d 222(7th Cir 1996.)
Defendant's use of certain legal terms in its telephone contacts were simply tactics to
create and did create a false sense of urgency on the past of Plaintiff in violation of the
FDCPA. To10nfino V, Friodman, 833 F. Supp. 697 (N.D. Ilk 1993); Sluys v. Hand, 831 F.
Supp. 321 (S.D.N.Y. 1993); and Rosav, Q'4ynor, 784 F. Supp 1 (D. Conn. 1989.
At all time pertinent hereto, the defendant was acting by and through its agents, servants
and/or employees, who were acting within the scope and course of their employment, and
under the direct supervision and control of the defendants herein.
At all times pertinent hereto, the conduct of the defendant, as well as its agents, servants,
and/or employees, was malicious, intentional, willful, reckless, negligent and in wanton
disregard for federal and state law and the rights of the Plaintiff herein.
Plaintiff believes and therefore avers that the defendant made false threats of litigation.
Defendant's threat of litigation was false because defendants do not routinely file suit
against consumer debtors, in violation of 15 U.S.C. §1692e(5) and (10).
37. Defendant, in its collection efforts, violated the FDCPA, inter aba, Sections 1692, b, c, d,
e, f, g, h, and/or n.
38. Defendants, in their collection efforts, used false or deceptive acts and intended to
oppress and harass plaintiff.
39. That, as a result of the wrongful tactics of defendants as aforementioned, plaintiff has
been subjected to anxiety, harassment, intimidation and annoyance for which
compensation is sought.
WltEREFORE, Plaintiff respectfully requests that his Honorable Court enter judgment
on her behalf and against defendants and issue an Order:
(A) Award Plaintiff statutory damages in the amount of One Thousand Dollars
($1,000.00) for each violation of the FDCPA or each separate and discrete
incident in which defendants have violated the FDCPA. Kashak v. Raritan Valley
Collection Agency, F. Supp. (D.N.J. May 23, 1989), and Rabideau v,
Management Adjustment Bureau, 805 F. Supp. 1086, 1095 (W.D.N.Y. 1992)
(B) Award Plaintiff damages for anxiety, harassment, and intimidation directed at him
in an amount not less than Ten Thousand Dollars ($10,000.00), as well as the
repetitive nature of defendants form letters.
(C) Award Plaintiff costs of this litigation, including a reasonable attorney's fee at a
rate of $200.00/hour for hours reasonably expended by his attorney in vindicating
his rights under the FDCPA, permitted by 15 U.S.C. §1692k(a)(3).
(D) Award declaratory and injunctive relief, and such other relief as this Honorable
Court deems necessary and proper or law or equity may provide.
COUNT II
40. Plaintiff hereby incorporates Count I of this Complaint as if fully set forth herein.
41. Jurisdiction for Count II is pursuant to the Pennsylvania Fair Credit Extension Uniformity
Act. 73 P. S. {}2270.1 et seq.
42. That defendants engaged in unfair methods of competition and unfair or deceptive acts or
practices.
43. Defendants acts as described herein were done with malicious, intentional, willful,
reckless, negligent and wanton disregard for Plaintiff's rights with the purpose of
coercing Plaintiff to pay the alleged debt.
44. As a result of the above violations, Plalntiffis entitled to statutory, actual, treble and
punitive damages and attorney's fees and costs.
45. Plaintiff believes and therefore avers that defendant made material misrepresentations to
Plaintiff.
46. Plaintiffbelieves and therefore avers that defendant did not have an attorney review her
account.
47. Plaintiff believes and therefore avers that defendant made false threats of litigation.
48. Defendant misrepresented to Plaintiff that she owed return check fees of $30.00, in
violation of Section 2270.4(b)(5) of the Fair Credit Extension Uniformity Act.
49. Defendant intended to made false statements and material misrepresentations to Plaintiff,
via United States Mail, in order to coerce Plaintiff into paying more than the alleged debt.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court, find against
defendant and award One Hundred Dollars in statutory damages, treble damages as permitted by
statute, attorney fees and costs as permitted by statute along with $5,000.00 for anxiety,
harassment and intimidation directed at her.
Dated: 5/1/03 By:
xl~Y6~ma Eyn~Smith
Attorney for Plaintiff
76 Greenmont Drive
Enola, Pennsylvania 17025
Telephone 717-732-3750
Fax 717-728-9498
SMITHDELYN~aol.com
March 6. 2003
JBC & ASSOCIATES, P.C.
Attorneys at Law
2 Broad Street 6th Floor - Bloomfield NJ 07003-2591
Telephone: (800) 241-1510 Fax: (973) 259-0497
CA Office
9465 Witshire Blvd Suile 340
Beverly Hills CA 90212
NY Office
1 I Penn Plaza 5th Floor
New York NY 10001
MA Office
306 Dartmouth Street
Boston MA 02116
Paula Mumbauer
629 Martins Ln
Bethlehem PA 18018-5419
Re: Cvs
File #: H49427
Driver's License:
Balance: $148.11
Dear Paula Mumbauer:
You have obviously chosen to ignore our previous communication demanding that you make restitution on an
NSF check(s) written to our above-referenced client(s). Our client(s) may now assume that you delivered the
check(s) with intent to defraud, and may proceed with the allowable remedies.
Since you have not tendered payment for the full amount of the check(s) and service charge(s) within the 30 days
provided, pursuant to Pennsylvania law, you may be subject to a civil penalty, court costs and reasonable attorney
fees after suit has been filed.
You may wish to settle this matter before we seek appropriate relief before a court of proper jurisdiction by a
qualified attorney by remitting immediate payment of $148.11 to our offices. Contact Lori Brown at 800-241-
1510 if you need further instructions. If you qualify, you may also be able to use your American Express,
Discover, Mastercard or Visa credit card to meet this obligation.
Very truly yours,
JBC & ASSOCIATES, P.C.
Attorneys at Law
This is an attempt to collect a debt by a debt collector. Any information obtained will be used for that purpose.
***Detach Lower Portion And Return With Payment***
NSDJBCA01002PA
JBC & Associates, P.C., Attorneys at Law
2 Broad Slreet 6~ Floor
Bloomfield NJ 07003-2591
ADDRESS SERVICE REQUESTED
March 6, 2003
H49427-002PA 299201 105151
h.lll.hlh.,,,,llh,h.hh.h,h,,llhh,.,hlhh.,hll
Paula Mumbauer
629 Martins La
Bethlehem PA 18018-5419
JBC & Associates, P.C.
Attorneys at Law
2 Broad Street 6th Floor
Bloomfield NJ 07003-2591
Ill..h,,llh.lh,.,Ih,,hhhhhh,,,,lllh,.,hh,.lll
March 6, 2003
JBC & ASSOCIATES, P.C.
Attorneys at Law
2 Broad Street 6th Floor - Bloomfield NJ 07003-2591
Telephone: (800) 241-1510 Fax: (973) 259-0497
CA Office
9465 Wilshire Blvd Suite 340
Beverly Hills CA 90212
NY Office
11 Penn Plaza 5u~ Floor
New York NY 1000 I
MA Office
306 Dartmouth Street
Boston MA 02116
Paula Mumbauer
629 Martins Ln
Bethlehem PA 18018-5419
Re: Cvs
File #: H49421
Driver's License:
Balance: $248.74
Dear Paula Mumbauer:
You have obviously chosen to ignore our previous communication demanding that you make restitution on an
NSF check(s) written to our above-referenced client(s). Our client(s) may now assume that you delivered the
check(s) with intent to defraud, and may proceed with the allowable remedies.
Since you have not tendered payment for the full mount of the check(s) and service charge(s) within the 30 days
provided, pursuant to Pennsylvania law, you may be subject to a civil penalty, court costs and reasonable attorney
fees after suit has been filed.
You may wish to settle this matter before we seek appropriate relief before a court of proper jurisdiction by a
qualified attorney by remitting immediate payment of $248.74 to our offices. Contact Lori Brown at 800-241-
1510 if you need further instructions. If you qualify, you may also be able to use your American Express,
Discover, Mastercard or Visa credit card to meet this obligation.
Very truly yours,
JBC & ASSOCIATES, P.C.
Attorneys at Law
This is an attempt to collect a debt by a debt collector. Any information obtained will be used for that purpose.
***Detach Lower Portion And Return With Payment***
NSDJBCA01002PA
JBC & Associates, P.C. Attorneys at Law
2 Broad Street 6~ Floor
Bloomfield NJ 07003-2591
ADDRESS SERVICE REQUESTED
March 6, 2003
H49421-002PA 299200 105150
h,,llh,hlh,,,,,llh,h,hh,h,h,,llhh,,,hlhh,,,hll
Paula Mumbauer
629 Martias Ln
Bethlehem PA 18018-5419
JBC & Associates, P.C.
Attorneys at Law
2 Broad Street 6th Floor
Bloomfield NJ 07003-2591
IIh,,h,,llh,,Ih,,,,Ih,,hhhhhh,.,,lllh,,,,hh,,lll
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PAULA MUMBAUER,
Plaintiff,
No.: 03-2125, Civil Term
JBC & ASSOCIATES, P.C.,
Defendant.
PRAECIPE TO WITHDRAW THE CASE
AND NOW comes Plaintiff, by and through his counsel, Deanna Lynn Smith, and files
this Praecipe to Withdraw the above captioned matter. The case may now be
marked CLOSED.
Respectfully submitted,
Dated: 7/14/03 By:
Deanna Lynn Smith
Attorney for Plaintiff
76 Cn'eenmont Drive
Enola, Pennsylvania 17025
Telephone 717-732-3750
Fax 717-728-9498
SMITHDELYN~aol.com