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HomeMy WebLinkAbout03-2127 fh urn iv4;-.\.)tSK V rtS2 cO~ CIG 03 - ~/~7 C~u~L I~~ NOTICE 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, P A 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 0 en persona 0 por abogado y archivar en la corte en forma excrita sus defensas 0 sus objectiones alas demande, la corte tomara medidas y puede entrar una orden contra usted sin previa aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO 1MMED1ATAMENTE, S1 NO T1ENE ABOGADOO S1 NO T1ENE EL D1NERO SUF1C1ENTE DE PAGAR TAL SERV1C10N, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OF1C1NA CUYA D1RECC10N SE PUEDECONSEGU1R AS1STENC1A LEGAL, PAULA MUMBAUER, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA v. TELECHECK SERVICES, INC. Defendant. : No.: 03 - ,;}/~7 eu~L'j-~~ COMPLAINT COUNT I 1. 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. 2. Venue lies in this District pursuant to 28 U.S.c. 1391(b). 3. Plaintiff is an individual and consumer pursuant to 15 U. S. C. ~ 1692a( 6). . 4. 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 ofDept. 80, Denver, CO 80281-0080. 5. 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. 6. Defendant is a debt collectors as defined by 15 U.S.C. ~1692a(3). 7. Defendant Telecheck sent a letter to Plaintiff, dated December 23,2002, 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 FDCP A applies to obligations .a.n.d alleged obligations. 10. Defendant alleged that Plaintiff owed an obligation to one of its clients for the purchase of personal/household/consumer goods. 11. The FDCP A 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, Charles v. Lundgren & Associates, P. C. et .ai, 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 DuflYv. Landberg, et al, 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. 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 FDCP A. 15. 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. 16. 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). 17. The FDCP A 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 ofa debt. 15 U.S.C. ~1692e(2)A and B. 18. There was never an express agreement by Plaintiff to pay any additional fees. 19. Pennsylvania law permits a $20.00 fee, upon conviction. 20. There was no conviction in this case. 21. On or about December 23,2002, 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. 22. Telecheck's letter further stated, "return check fee $30.00." 23. Telecheck's letter misrepresented the character and amount of the debt and informed Plaintiff that compensation was due to them when it was not. 24. The return check fee is not authorized by contract or law. 25. Defendant's letter further stated, "As a result, we have entered your name in our National Computer Files." 26. This action was taken by defendant prior to the expiration of the 30-day notice period. 27. Defendant's letter overshadowed the FDCPA. 28. Defendant's letter was false, misleading and deceptive and failed to inform Plaintiff of her rights under the FDCP A. 29. The form of Defendant's letter was intentionally confusing, deceptive and misleading. 30. Defendant's letter failed to inform Plaintiff that she is entitled to make partial payments, in violation of 15 U.S.C. ~1692h. 3 1. 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. In re Belile, 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. Ill. 1993); Sluys v. Hand, 831 F. Supp. 321 (S.D.N. Y. 1993); and Rosa v. Gaynor, 784 F. Supp 1 (D. Conn. 1989). 34. Defendant's letter was intentionally confusing and deceptive, in violation of 15 U.S.c. ~1692e(5) and (10), ~1692ft8) 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 FDCP A. 36. 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. 37. 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. 38. Plaintiff believes and therefore avers that the defendant made false threats of litigation. 39. 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). 40. 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: (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 inddent in which defendants have violated the FDCP A. 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 43. Plaintiff hereby incorporates Count I of this Complaint as if fully set forth herein. 44. Jurisdiction for Count II is pursuant to the Pennsylvania Fair Credit Extension Uniformity Act. 73 P. S. ~2270.1 et seq. 45. That defendants engaged in unfair methods of competition and unfair or deceptive acts or practices. 46. 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. 47. As a result of the above violations, Plaintiff is entitled to statutory, actual, treble and punitive damages and attorney's fees and costs. 48. 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. 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: ~ Dearula Lynn Smith Attorney for Plaintiff 76 Greenmont Drive Enola, Pennsylvania 17025 Telephone 717-732-3750 Fax 717-728-9498 SMITHDEL YN@ao1.com TeleCheck . Recovery Services, Inc. TELECHECK RECOVERY SERVICES, INC. CORPORATE omCES LOCATED AT: 5251 Westheimer, Houston, TX 77056/ TELE (713) 567-0499 Customer: Amount: Fee: CVS DRUGS $83.43 $30.00 Date Written: December 23, 2002 Check Number: 1021 Returned: Non-sufficient funds Total Due: $113.43 Reference #: 3503024353730 January 25, 2003 Dear Paula Mumbauer The check referenced in this notice has been retumed unpaid by your bank and assigned to TeleCheck Recovery Services, Inc. As a result, we have entered your name in our National Computer Files. Until this is resolved, we may not approve your checks or the opening of a checking account at over 120,000 merchants and banks who use TeleCheck's services 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: Payment by Western Union Quick Collect and TeleCheck Phone Pay is also available. There is an additional charge for these services. For details regarding these services, please contact one of our service representatives at (713) 567-0499. This is an attempt to collect a debt. Any infonnation obtained will be used for that purpose. This is a communication from a debt collector. TeleCheck Recovery Services, Inc. P.O. Box 17450 Denver, CO 80217 TRSA 1 01/08101 A34270 SEE REVERSE SIDE FOR FEDERAL VALIDATION NOTICE AND OTHER IMPORTANT INFORMATION Detach bottom portion and return with payment. TeleCheck Recovery Services, Inc. TOTAL AMOUNT DUE $113.43 350030243537308000083438602000030001 3503024353730 -TRSA1-January 25, 2003 I I111 III 11m 11111I1111111111I1II1111I 1111 III Iml III 111I MUMBAUER PAULA L 629 MARTINS LN BETHLEHEM PA 18018 TELECHECK RECOVERY SERVICES, INC. PO BOX 17170 DENVER CO 80217-0170 46Z5 11..1.11..11I1.11..1.11.111I...11.11111.1.11111.1..1.111..1.11 \BC15tLR(2001 1 101) Note: Send general correspondence to the address on the back of the form and payments to the address above, Please do not send cash, ~ -'<l ~ ~ 0 , ~ ~ ~~'~ .:.... -'- '. -Vu. . ~ rr: ~,. ~ -;;- " ..,:,...- .... ..., '- - 1'".-' - '-, ~ ).J -, 'J ~ r:~ \. .'l 1J j.>> - ()- "--..,. r/1 ~ /. )-~ ~-) :",) -, -l ex.;, '"'- FOX ROTHSCHILD LLP BY: SCOTT L. VERNICK; DANIEL G, LYONS IDENTIFICATION NOS. 51547; 76809 2000 MARKET STREET, TENTH FLOOR PHILADELPHIA, PA 19103-3291 (215) 299-2000 ATTORNEYS FOR DEFENDANT PAULA MUMBAUER, Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY, P A v. NO. 03-2127 TELECHECK SERVICES, INC" Defendant. NOTICE OF FILING OF NOTICE OF REMOVAL TO THE PROTHONOTARY: Notice is hereby given that, on June 4, 2003, defendant TeleCheck Recovery Services, Inc" incorrectly denominated as Telecheck Services, Inc. ("TeleCheck"), filed a Notice of Removal in the United States District Court for the Middle District ofPennsylv~mia to remove the above-captioned action from the Court of Common Pleas of Cumberland County" Pennsylvania to the United States District Court for the Middle District of Pennsylvania, A copy ofthe Notice of Removal is attached as Exhibit "1" hereto. l. ~,., Scott L. rnick Daniel G, Lyons FOX ROTHSCHILD LLP 2000 Market Street, 10th Floor Philadelphia, PA 19103 Telephone: (215) 299-2000 Facsimile: (215) 299-2150 Attorneys for Defendant TeleCheck Recovt:ry Services, Inc. Dated: June 4, 2003 2 Exhibit A OJS 44 (Rev. 3/99) CIVIL COVER SHEET APPENDIX B The JS-44 civil cover sheet and the infonnation contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This fonn, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE ll'lSTRUCTIONS ON TIIE REVERSE OF TIlE FORM.) I. (a) PLAINTIFFS PAULA MUMBAUER DEFENDANTS TELECHECK SERVICES, INe. (b) County of Residence of First Listed Plaintiff (EXCEPT IN U.S, PLAINTIFF CASES) County of Residence of First Listed Plaintiff (IN U,S, PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED (c) Attorney's (Finn Name, Address, and Telephone Number) Deanna Lynn Smith, Esquire 76 Greenmont Drive Enola, P A 17025 Attorneys (If Known) Scott L. Vernick, Esquire Fox Rothschild LLP 2000 Market Street, 10111 Floor Phil PA '.'03.329t (215) 299-2000 III. CITIZENSHIP OF PRINCIPAL PARTIES (P1aa:an"X";nOnoBOIt forPlainliff (For Divmiity Cases Only) and One Box for Defmdam) II. BASIS OF JURISDICTION (place an "X" in One Box Only) 0 U.S. Government t8I 3 Federal Question DE" DE" Plaintiff (U.S. Government Not a Party) Citizen ofThis State 01 01 Incorporated or Principal Place D- O- of Business In This State 0 2 U.S. Government 0 _ Diversity Citizen of Another State 01 01 Incorporated and Principal Place Os Os Defendant (Indicate Citizenship ofParties of Business In Another State in Item Ill) Citizen or Subject of a 03 03 Foreign Nation 06 06 Foreign Country IV. NATURE OF SUIT (Place an "X" in One Box Only) CONTRACT TORTS FORFEITURElPENAL TY BANKRUPTCY OTHER STATUTES 0 1l0IBliurance PERSONAL INJURY PERSONAL INJURY 0 610 Agriculture 0 422 Appeal 28USC 158 0 400 State Reapportionmenl 0 120 Marine 0310 Airplane 0 362 Personal Injury- 0 620 OtheT Food & Drug 0 410 Antitrust 0 130 Mi11eTAcl 0315 AirplaneProduct Med_Malpractice 0 625 Drug Related Seizure 0 423 Withdrawal 0 430 Banks and Banking 0 140 Negoliablelnslrumenl Liability 0 365 Personal Injury- of Property 21 USC PROPERTY RIGHTS 0 450 Coll1JlleTCefICC RalesI ctc 0 150 Recovery of Overpayment 0310 Assauk,Libel& ProducILiability 0 630 Liquor Laws 0 460 Deportation & Enforcement of Slander o 368 Asbe$l05 pm;onal 0 640 RR. & Truck 0 820 Copyrights 0 470 Rackcteerlnnuencedand Judgmenl o 310 Airplane 0 650 Airline Regs 0 830 Patent CorruplOrganizalions 0 151 Medicare Act D3JO FederalEmployers' Injury Product Liability 0 660 Ck:cupational 0 840 Trademark 0 810SelectivcService 0 152 Recovery of Defaulted Liability PERSONAL PROPERTY Safcty/Heahh 0 850 SecurilieslComrooditiesl Student Loans 0340 Marine 0370 OtheTFraud 0 6900theT (Excl.Ycterans) 0345 Marine Product o 371 TruthinI.ending LABOR SOCIAL SECURITY Exchange 0 153 RecovcryofOverpayment Liability 0380 OtherPmional 0 875 CUSlomer Challenge ofYcteransBenefrts 0350 MotorYehicle 0 710 Fair Labor Standards 0 861 HJA(1395ff) 12 USC 3410 0 160Stoekholders'Suiles 0335 MotorYehkle Property Damage Act 0 862 Black Lung (923) 0 891 Agricu1tureAcls 0 190 QlherConlract Product Liability o 385 Property Damage 0 720 LaborlMgmt.. Relations 0 863 DIW ClDIW W(405(g)) 0 892 EconomicSlabilizationAcl 0 195 ConlractProductLiability 0360 OtheTPersonal Product Liability 0 864 ssm Tille XVI 0 893 Environmental Mattmi In'u 0 730 LaborfMgml. Reporting 0 865 RSI(405(g)) 0 894 EnergyAlloeationAct REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS & Disdosure Act 0 895 Freedomof 0 210 LandConderrmation 0441 Voting 0510 Motions 10 Vacate 0 740 Railway Labor ACI InformalionAct 0 220 Forecloliure o 442 Employmem Sentence FEDERAL TAX SUITS 0 900 Appeal of Fee 0 230 RentLcase&Ejectrnent 0443 Houliingl HabeusCorpus: 0 790 Other labor Litigatioll 0 870T8JiOcs(US_PlaintilT DetenninationUnder 0 240 Torts 10 Land AC1::0mm0dationli 0530 GeneT'll1 of Defend ani Equal Acces.li 10 Justice 0 245 Tort Product Liability 0444 Welfare 0535 DeathPcna1ty 0 791 E"ll1. Rei. Inc 0 0 950 Conslitutionalityof 0 290 All Other Real Property 0440 Otber Civil Rights o S40 Mandamuli & Other Security Act 871lRS - Third Party 0550 Civil Rights 26 USC 7609 State Statutes 0555 PriliOnCondition 181 890 OtherSlatuloryAcliollli V, ORIGIN (PLACE AN "X" IN ONE BOX ONLY) 01 Original Proceeding ~ 2 Removed from State Court o 3 Removed from Appellate Court o 4 Reinstated or Reopened Os Transferred from another district (specify) o 6 Multidistrict Litigation 07 Appeal 10 District Judge from Magistrate Judgment VI. CAUSE OF ACTION (Cite the U,S. Civil Statute under which )'Qu are filing and write brief statement of cause. Do not cile jurisdictional slatutcs unless divmiity.) Defendant hereby removes the action to this Court VII. REQUESTED IN CHECKIFTIllSISACLASSACTION COMPLAINT: UNDER Fa-CP. 23 VIII. RELATED CASE(S) !S~ , ) IF ANY 'mstrucllOllIi ursuautto 28 U.s.C. ~ 144JI. DEMAND $ CHECK YES only if demanded in complainl: JURY DEMAND: 0 Yes 0 No JUDGE DOCKET NUMBER DATE SIGNATURE OF ATTO RECORD l.~,W- 06/04/03 FOR OFFICI: USr. ONLY RECEIPT. AMOum APPLYINGII'P MAG, JUDGE OJS 44 (Rev. 3199) INSTRUCTIONS FOR AITORNEYS COMPLETING CIVIL COVER SHEET FORM JS-44 Authority for Civil Cover Sheet The JS-44 civil cover sheet and, the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. (b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiffresides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases the county of residence of the defendant" is the location of the tract of land involved.) (c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an "X"- in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States, are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "Y" in this box. Federal question. (3) This refers to suits under 28 V.S.C. 133 1, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the Vnited States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS-44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sum the cause of action, in Section IV below, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to detennine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. V. Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 V.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Vse the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the Filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.c. Section 1404(a) Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistratejudge's decision. VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. VI]. Requested In Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this box enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS-44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet. IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA PAULA MUMBAUER 629 Martins Lane Bethlehem, PA 18018, Plaintiff, CIVIL ACTION v. NO. TELECHECK SERVICES, INC. 5251 Westheimer Houston, TX 77056, Defendant. NOTICE OF REMOVAL Defendant, TeleCheck Recovery Services, Inc., incorrectly denominated as Telecheck Services, Inc. ("TeleCheck"), by and through its attorneys, submits this notice of removal and in support thereof states as follows: 1. On or about May I, 2003, plaintiff, Paula Mumbauer ("Mumbauer"), commenced an action against TeleCheck by filing a complaint in the Court of Common Pleas of Cumberland County, Pennsylvania, Civil Action No, 03-2127 (the "State Court Action"). A true and correct copy ofMumbauer's state court complaint is attached as Exhibit "A" hereto. 2. TeleCheck was served with the State Court Action on or about May 15, 2003, 3. In Count I of the complaint, Mumbauer alleges that TeleCheck violated certain provisions of the Fair Debt Collection Practices Act, 15 U,S,C. ~di 1692, et seq. (the "FDCPA"). 4, Pursuant to 28 U,S.C. S 1441(a), removal of the State Court Action to this Court is warranted because (a) the State Court Action alleges a federal question under 28 U.S.C. S 1331, and (b) this Court embraces the place where the State Court Action is pending, 5. This notice of removal is timely because it has been filed within thirty days of TeleCheck's receipt of Mumbauer's complaint. See 28 U.S.C. ~ 1446(b). 6. Accordingly, defendant TeleCheck's removal of the state court proceedings is appropriate. WHEREFORE, TeleCheck respectfully requests that the proceedings pending in the Court of Common Pleas of Cumberland County, Pennsylvania be removed to the United States District Court for the Middle District of Pennsylvania. Respectfully submitted, L~a Scott L. Ve 'k FOX ROTHSCHILD LLP 2000 Market Street, 10th Floor Philadelphia, PA 19103 Telephone: (215) 299-2000 Facsimile: (215) 299-2150 Attorneys for Defendant TeleCheck Recovery Services, Inc. Dated: June 4, 2003 2 & , 03 r,~~~'l C1c.>~L 't~ " ........., ~, .,... NOTICE 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 f"iling,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 BC, 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 cther rights important to you. YOU SHOULD TAKE THIS l?Al'ER TO YOUR LAWYER A~' ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TE:LEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GE:T LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 717-249-3166 800-990-9108 NOT:r:CIA Le han demandado a usted en la corte. Si usted quil:e defenderse de estas demandas expuetas en las paginas siqu.ientes, u.sted tiene viente. (20) dias de plaza a':"" partir de la fecha de la excrita 0 11m persona 0 por aboqado y arehivar en Ie. r::orte en forma exe.rita .sus defen3a.s 0 sus objectiones a la.s demande, la corte tomara medidas y puede entrar una I:)rd@n contra usted sin p:revio aV1SD 0 l1otificacion y por cualquier queja 0 alivio que es pedido en la peticion de: demanda.. Uste.d pue.de pe.rder dineJ;o 0 .$U,S; propiedades 0 ot:r:o.s derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGI\DO IMMEDIATl\MENTE. 51 NO TIENE ABOGI\DOO SI NO TIENE EL DINERO SUnCIENTE DE PAGAA TAL SERVICION, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DlRECCION SE ,PUEDECONSEGUIR ASISTENCIA LEGI\.L. 2 -,~ 1-;; ~~ -~:.; ~-..... ;r'- ch> -~ ' ~c. ~l-' ~(;:, c.., :z: :.:<! '..;> ", ,.. ~,' r:.":". , ,-~ 1 r r.,:y, rF-r F' P' !: ~ 17 :'7' 1[::'- , I ': ,. ,_ . _, _ '.. '. .~ r ..-:; .~ "I, ,.'-., T :~! ~i .::" r, ~5f'r~ ..:~.'j :::J -< ,0 :::J-.: L_ M~,Y '~00"3 " k .._ ~ .~u '~I :":'l 0......-..- J..,.... :::)I.t~ ~ I ;;1"'0;> ZOO~ XVd 60:80 CO/CO/90 .. .. --, r-o, PAULAMUMBAUER, Plaintiff, : IN TIIE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA v. TELECHECK SERVICES, INC. Defimdant. : No.: O?'-(j.,lc>-.l C I \J I L .. ~"~_,1"\ COMPLAINT COlJNT I 1. Jurisdiction for this action is asserted pursuant to the Fair Debt Collection Practices Act, 15 US_C. ~1692, et seq. ("FDCPA"), particularly 15 US.C. ~I692k(d) and 28 D.S,C, 91337, 2_ Venue lies in thi.s District pursuantto 28 D.S.C. 1391(b), 3. Plaintiff is an individual and consumer pursuant to IS U.S,C. ~1692a(6)_, 4, Defendant Telecheck Services, Inc" (Hereinafter "Teleche.;k"), is a debt collectorlbusiness entity(ies) engaged in the business of COllecting debts within this Commonwealth via letters and telephone calls, with its prU:lcipal place of business located at 5251 Westheimer, Houston, TX 77056, mailing address of Dept. 80, Denver, CO 80281-0080. 5, Defendant communicated with plain:tiff on or after one YeaJ, 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. 6, Defendant is a debt collectors as defined by 15 U.S.C. 91692a(3). 7_ Defendant l'elecheck sent a letter to Plaintiff, dated December 23, 2002, which is a "commnnication" relating to a "debt" as defined by 15 U.S,C, ~ 1692a(2) and 91692a(5), COO~ XVd 60:S0 CO/CO/90 " ~ ~. 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 and alleged obligations. 10, Defendant alleged that Plaintiff owed an obligation to one of its clients for the purchase of personal/household/consumer goods. 11. The FDCP A defines debt very broad, as an obligation, whi(;h 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 FDCP A. See, Charles v Lundlll'en & Associates p, C et l!L 119 F.3d 739 (9th Cir. 1997); Bass v. Stolper. Koritzinskv Brewster & Neider. et al III F.3d 1322, (7'" Cir. 1997); Snowy Riddle P r:, No, 97-4045 (10'" Cir. 1998); and Duftvv, Landberg" et al" No. 97-1560 (81h eir, 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. 14, Defendant Tdecheck, in its collection efforts, demanded return check fees in violation of Pennsylvania law, 18 Pa.C.S. 94105(e)(3), and a violation of state law is a violation of the FDCP A 15. Defendant Te1echeck, in its collection efforts, demanded return check fees in violation of theFDCPA, 15 U.S.C. !i1692ftl) and 1692e(2)A and B. 16, The FDCP A states, a debt collector may not use unfair or unconscionable means to collect or attl".mpt 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 incid,ontal to the principal tOO~ YV& 60:90 CO/CO/90 , ---.., ,r-., obligation) unless such amount is, expressly authorized by 111e agreement creating the debt or permitted by law. 15 U.S.c. ~1692f{1). 17, The FDCP A slates, 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 1awfiilly received by any debt collector for the collection ofa debt. 15 U.S,C. ~1692e(2)A and B, 18, There was never an express agreement by Plaintiff to pay any additional fees. 19. Pennsylvania law permits a $20,00 fee, upon conviction. 20. There was no conviction in this case. 21, On or about December 23, 2002, Telecheck drafted and mailed a letter to Plaintifi; via U.S. Mail, a dunning notice or collection letter entitled ''Notice of Retumed Check" in bold letters. 22, Telecheck's letter further stated, "return check fee $30,00," 23, Telecheck's letter misrepresented the character and amount of the debt and informed Plaintiff that compensation was due to them when it was nl~t. 24. The return check fee is not authorized by contract or law. 25. Defendant's letter further stated, "As a result, we have entl~red your name in our National Computer Files." 26. This action 'l>ras taken by defendant prior to the expiration of the 30-day notice period. 27, Defendant's Letter overshadowed the FDCP A SOO I2J XVii 01: gO CO/Co/gO , ,-... ,r--., 28, Defendant's letter was false, misleading and deceptive and failed to inform Plaintiff of her rights under the FDCP A. 29. The form of Defendant's letter was intentionally confusing, deceptive and misleading. 30. Defendant's letter failed to inform Plaintiff that she is entitled to make partial payments, in violation ofI5 U.S_C. ~1692h. 31. The language of Defendant's letter was intended to intimidate and coerce P1aintiffinto paying the alleged debt. 32. Plaintiff believes and therefore avers that she was confused, mislead and deceived by Defendant'~ mass mailed for letters. In fe Beme.: 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 FIiedm@, 833 F, Supp. 697 (N,D, m. 1993); Sluvs v, Hand 831 F. Supp. 321 (S.D,N.Y. 1993); and Rosa v. Gaynor. 784 F. Supp 1 (D. COIl1l. 1989). 34 Defendant's letter was intentionally confusing and deceptive, in violation of 15 U.S,C. 91692e(5) and (10), 91692fl:8) and 91692j. 35 Defendant's conduct rises to the level required for punitiV'l damages due to the form and language of its notice and the continuous and repetitive nature of the violations under the FDCP A. 36. At all time pertinent hereto. the defendant was acting by 8l~d through its agents, servants and/or employees, who were acting within the scope and c:ourse of their employment, and under the direct supervision and control of the defendants herein. 37, 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 900~ xv,,! or: gO CO/CO/90 < ,---. ~ disregard for federal and state law and the rights of the Plaintiff berein. 38, Plaintiff believes and therefore avers that the defendant made false threats oflitigation. 39. Defendant's threat oflitigation was false because defendants do Dot routinely file suit against con.mmer debtors, in violation of 15 U.S.C. ~1692,,(5) and (10), 40. Defendant, in its collection efforts, violated the FDCP A, inter alia, Sections 1692, 'b, c, d, e, 1; g, h, and/or n_ 4] , 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 albrementioned, plaintiff has been SUbjeCted to anxiety, harassment, intimidation and anrroyance for which compensation is sought. WHEREFORE, Plaintiff respectfully requests that his Honorable Court enter judgment on her bebalf and against defendants and issue an Order: (A) Awud Plaintiff statutory damages in the amount of One Thousand Dollars incitent in which defendants have violated the FDCP A. Kashak v Raritan Valley Col1<::ction A~ncy. _F. Supp._(D,N.J. May 23, 1989), and Rabideau v, Mlwlillement Adiustment Burea1l, 805 F_ Supp. 1086, 1095 (W,D.N.Y. ] 992) (8) Award Plaintiff damages for anxiety, harassment, /ll1d intimidation directed at him in an amount not less than Ten Thousand Dollars ($10,000,00), as well as the repelitive 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 expend"d by his attorney in vindicating LOO Ifl YVd OJ: so to/tO/90 : ---. /"-<. his rights under the FDCPA, permitted by 15 V.S.C, 91692k(a)(3). CD) Award decIaratory and injunctive relief, and such other relief as this Honorable CO'Ilrt deems necessary and proper or law or equity may provide, COUNT IT 43. Plaintiff hereby incorporates CO\lIlt I of this Complaint as if fully set forth hereia 44. Jurisdiction for Count II is pursuant to the Pennsylvania F,air Credit Extension Uniformity Act. 73 P. S. 92270,1 et seq. 45, 'That defendants engaged in unfair methods of competition and unfair or deceptive acts or practices, 46, 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. 47, As a result of the above violations, P1aintiffis entitled to statutory, actual, treble and punitive damages and attorney's :tees and costs. 48. Plaintiff believes and therefore avers that defendant made material misrepresentations to plaintiff. 49, Defendant misrepresented to Plaintiff that she owed retum chel:k 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 Plaiutiff, 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 900ifl XVd 11:90 co/co/so ..". " , statute, attorney fees and costs as pennitted by statute along with $5,000,00 for anxiety, harassment and intimidation directed at her, ,~ De:lIl,oa Lynn Smith Attorney for Plaintiff 76 Greenmont Drive Enola, Pelll1Sy1vaoia 17025 Telephone 717-732-3750 Fax 717-728-9498 SMITHDEL YN@aol.com Dated; 5/1I03 By: 600~ YVd It:gO CO/CO/90 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYL VANIA PAULA MUMBAUER 629 Martins Lane Bethlehem, PA 18018, Plaintiff, CIVIL ACTION VI. NO. TELECHECK SERVICES, INC. 5251 Westheimer Houston, TX 77056, Defendant. CERTIFICATE OF SERVIC1k I hereby certify that a true and correct copy of the foregoing Notice of Removal was served via first-class U.S. mail upon the following: Deanna Lynn Smith, Esquire 76 Greenmont Drive Enola, P A 17025 Attorney for Plaintiff SCOTT Dated: June 4, 2003 . FOX ROTHSCHILD LLP BY: SCOTT L. VERNICK; DANIEL G. LYONS . IDENTIFICATION NOS. 51547; 76809 2000 MARKET STREET, TENTH FLOOR PHILADELPHIA, PA 19103-3291 (215) 299-2000 ATTORNEYS FOR DEFENDANT PAULA MUMBAUER, COURT OF COMMON PLEAS CUJ\.1BERLAND COUNTY, PA Plaintiff, v. NO., 03-2127 TELECHECK SERVICES, INC., Defendant CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Notice of Filing of Notice of Removal was served via first-class U.S. mail upon the following: Deanna Lynn Smith, Esquire 76 Greenmont Drive Enola, P A 17025 Attorney for Plaintiff t. }~"'~ SCO Dated: June 4, 2003 (') ~,:I~:: 0)(- - ,j ~~ ~~:',~ ~,. }> ,'- L_{- "'"~, .J..c> (-: -' =~ - -, ~~p CO c,) ( ~::.= ; I .r' r:- "'-,~ Ul -, o .." '" ',"J ':':;~ '" /'j ;::-" -", :q -<.