Loading...
HomeMy WebLinkAbout03-2126 NOTICE TO PLRAD 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 bO 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. CumbeHand CounW Bar Association 2 Libe~y 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 pot 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. ~ ~ ~HvICION, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE PUEDECONSEGUiR ASISTENCIA LEGAL. TERRY L. GREGG, III, Plaintiff, V. TELECHECK SERVICES, INC. Defendant. · IN THE COURT OF COMMON PLEAS · CUMBERLAND COUNTY, 'PENNSYLVANIA 'No.: COUNT 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 consumer pursuant to 15 U.S.C. § 1692a(6).. Defendant Telecheck Services, Inc., (Hereinafter "Telecheck"), 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 5251 Westheimer, Houston, TX 77056, mailing address of Dept. 80, Denver, CO 80281-0080. 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 Telecheck sent a letter to Plaintiff, dated February 13, 2003, which is a "communication" relating to a "debt" as defined by 15 U.S.C. § 1692a(2) and § 1692a(5). 8. At all pertinent times hereto, defendants were hired to collect an alleged debt relating to a consumer transaction. (Hereinafter the "alleged debt.") 9. The FDCPA applies to obligations ~ alleged obligations. 10. Defendant alleged that Plaintiff owed an obligation to one of its clients for the purchase °f personal/household/consumer goods. 11. 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. 12. A check is covered under the FDCPA. See, ~ al., 119F.3d739(9thCir. 1997);B sv. ol er K rizink Brw r Nei r et al, 111 F.3d 1322, (7th Cir. 1997); Snow v. Riddle, P. C~, No. 97-4045 (10th Cir. 1998); and Dully v, Landberg, et alL, No. 97-1560 (8th Cir. 1998). 13. Defendants, in their collection practices, used the same mass-mailed, form letters, same telephone contact and the same collection practices as collection agencies that collect on accounts. 15. 16. 14. Defendant Telecheck, 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 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 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 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 Plainfiffto pay any additional fees. Pennsylvania law permits a $20.00 fee, upon conviction. There was no conviction in this case. On or about February 13, 2003, Telecheck drafted and mailed a letter to Plaintiff, via U.S. Mail, a dunning notice or collection letter entitled "Notice of Returned Check" in bold letters. Telecheck's letter further stated, "return check fee $30.00." Telecheck's letter misrepresented the character and amount of the debt and informed Plaintiff that compensation was due to them when it was not. The return check fee is not authorized by contract or law. Defendant's letter further stated, "As a result, we have entered your name in our National Computer Files. This action was taken by defendant prior to the expiration of the 30-day notice period. Defendant's letter overshadowed the FDCPA. 28. 29. 30. 31. Defendant's letter was false, misleading and deceptive and failed to inform Plaintiff of her rights under the FDCPA. The form of Defendant's letter 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 letter was intended to intimidate and coerce Plaintiff into paying the alleged debt. 32. Plaintiff believes and therefore avers that she was confused, mislead and deceived by Defendant's mass mailed for letters. ~, 208 B.R. 658 (E.D. Pa 1977). 33. 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); $1uys v. Hand, 831 F. Supp. 321 (S.D.N.y. 1993); and l~,3;~t02a~, 784 F. Supp 1 (D. Conn. 1989). 34. Defendant's letter was intentionally confusing and deceptive, in violation of 15 U.S.C. §1692e(5) and (10), §1692f(8) and §1692j. 35. 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. 36. 37. 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 38. 39. 40. disregard for federal and state law and the rights of the Plaintiffherein. 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). Defendant, in its collection efforts, violated the FDCPA, inter alia, Sections 1692, b, c, d, e, f, g, h, and/or n. 41. Defendants, in their collection efforts, used false or deceptive acts and intended to oppress and harass plaintiff. 42. 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. WHEREFORE, Plaintiff respectfully requests that his Honorable Court enter judgment on her behalf and against defendants and issue an Order: (c) 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 ~ Management Adjustment Bureal!, 805 F. Supp. 1086, 1095 (W.D.N.y. 1992) 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. 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 43. 44. 45. 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. Plaintiff hereby incorporates Count I of this Complaint as if fully set forth herein. Jurisdiction for Count II is pursuant to the Pennsylvania Fair Credit Extension Uniformity Act. 73 P. S. §2270.1 et seq. That defendants engaged in unfair methods of competition and unfair or deceptive acts or practices. 46. 47. 48. 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. As a result of the above violations, Plaintiff is entitled to statutory, actual, treble and punitive damages and attorney's fees and costs. Plaintiff believes and therefore, avers that defendant made material misrepresentations to Plaintiff 49. 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. 50. 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. WltEREFORE, 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 him. By: Dated: 5/1/03 Deanna Lynn Smith Attorney for Plaintiff 76 Greenmont Drive Enola, Pennsylvania 17025 Telephone 71%732-3 750 Fax 717-728-9498 SMITHDELYN~aol.com TELECHECK CORPORATE OFFICES LOCATED AT: 5251 Westheimer, Houston, TX 77056 Customer: SheetzNo 178 Amount: $11.75 Returned Check Fee: $30.00 Total Amount Due:- $41.75 Mamh 08, 2003 Date Written: February 13, 2003 Check Number: 214 Returned: Refer~t0. maker.,.~ TeleCheck has purchased the check referenced in this notice. As a result, we have entered ycur name into our NATIONAL COMPUTER FILES. Until this is resolved, we may not approve your checks or the opening of a checking account at the more than 120,000 merchants and banks who use TeleCheck nationally. Please send a cashier's check, money order or personal check for the Total Amount Due in the return envelope provided. For faster service in updating Your file: 'With your permission, and with funds available in your account, we are able to draft your account for the amount due. By doing so, you will avoid the delay of sending your payment through the mall. Simply call us at (713) 567-0499 and request your payment be processed by draft. This is an attempt to collect a debt. Any information obtained will be used for that purpose. This is a communication from a debt collector. See reverse side for important information including the Federal Validation notice. TeleCheck Recovery Department P.O. Box 17380 RECS1-TCLS07 Denver, CO 80217 04/15/98 SEE .BACK FOR TELECHECK pRIVACY STATEMENT. Detach bottom portion and return with payment. - 090306309007237000011751101000030006 09030630900723-RECS1_March 08, 2003 GREGG TERRY L III 8139B MOLLY PITCHER HWY SHIPPENSBURG PA 17257 TELECHECK SERVICES, INC. PO BOX 17120 DENVER CO 80217-0120 Ih'hlh,,,,hlh,h,,,lllh,,Ih,,h,hlh,,hh,hh,,hhl ~ote: Send general correspondence to the address on the back of the form and payments to the address above. Please do not send cash. ;.-'. TERRY L. GREGG, III, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA TELECHECK SERVICES, INC. Defendant. : No.: 03-2126 Civil Term 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. Dated: 6/12/03 Respectfully submitted, By: /4~/~C~. , Deanna Lynn Smith Attorney for Plaintiff 76 Greenmont Drive Enola, Pennsylvania 17025 Telephone 717-732-3750 Fax 717-728-9498 SMITHDELYN~aol.com