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Home My WebLink About07-3695IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Heather M. Wilt Greenmont Drive Enola, PA 17025 Plaintiff(s) & Addresses P. Scott Lowery, P.C. 67-3~g5 C~vt~ Ternti a/k/a Scott Lowery Law Office, P.C. 4500 Cherry Creek Drive, S, Suite 700 Denver, CO 80246 And John W. Harker, Esquire Scott Lowery Law Office, P.C. 1422 71 S` Street, Suite B Tulsa, OK 74136 Defendant(s) & Addresses PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. Writ of Summons shall be issued and forwarded to (X) Attorney ()Sheriff. Deanna Lynn Saracco, Esquire 76 Greenmont Drive Enola, Pennsylvania 17025 Phone 717-732-3750 SaraccoLaw@aol.com ~~~ Signature of Attorney Dated: 4/20/07 WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN ACTION AGAINST YOU Dated: ~ o~D oZp s P othonotary By: D uty C? - C= ~ n '~+^ ~' -~ ~ c .r a ~ - ~ ~ ~° ~ ~,~ # $ ~ ~' -a W O ~= cp ° C_. ~'~_= ~ 1 ==V' ~ 1:. ~, -`~ ~,; , IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA HEATHER WILT, Plaintiff CIVIL ACTION v. CASE NO.: b`]-- 3~oq 5 C i vi l TGrM SCOTT LOWERY LAW OFFICE, P.C. t/a P. SCOTT LOWERY, P.C., Defendant. NOTICE OF REMOVAL PURSUANT TO 28 U.S.C. § 1441 AND IN ACCORDANCE WITH 28 U.S.C. §1446 Defendant Scott Lowery Law Office, P.C. t/a P. Scott Lowery, P.C., by and through its attorneys, KURTZ & REVNESS, P.C., hereby files this Notice of Removal. 1. Plaintiff Heather Wilt filed a Civil Complaint against the Defendant in the Court of Common Pleas of Cumberland County, Pennsylvania, Civil Action No.: 2007-3695. 2. A true and correct copy of the Civil Complaint is attached to this Notice of Removal as Exhibit "1." 3. The Defendant first received notice and a copy of the Civil Complaint (the initial pleading) by certified mail on Wednesday, June 26, 2007. See final page of Exhibit "l," "June 26, 2007 RECEIVED " 4. This Notice of Removal is being filed within thirty (30) days after the receipt by the Defendant of the initial pleading; that is, the Civil Complaint. See 28 U.S.C. § 1446 (b). 5. Counts-III of the Civil Complaint set forth claims for violation of the Federal Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (the "FDCPA Claim") 6. This Court has original jurisdiction over the FDCPA Claim, as that Claim arises under the laws of the United States. See 28 U.S.C. § 1331 and 28 U.S.C. ~ 1441. 7. Counts I and II of the Civil Complaint allege state law claims arising under the Pennsylvania Fair Credit Extension Uniformity Act, 73 P.S. §2270 et seq., and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. (collectively the "State Law Claims"). 8. Since the FDCPA Claim, which is removable to this Court, has been joined with the State Law Claims, the entire case may be removed and this Court may determine all issues pled in the Civil Complaint. See 28 U.S.C. § 1441 (c). 9. In addition to the foregoing, this case is removable to this Court under Diversity Jurisdiction. 10. The Plaintiff is a citizen of the Commonwealth of Pennsylvania. See Complaint at ¶ 1. 11. The Defendant is a Professional Corporation organized and existing under the laws of the State of Colorado (See Certificate of Incorporation attached as Exhibit " 2"). 12. The Defendant's principal place of business is 4500 Cherry Creek Drive South, Suite 700-710, Denver, Colorado. 13. Therefore, complete diversity of citizenship exists between the parties providing another independent basis for removal to this Court. 14. Once filed and assigned a Docket Number by this Court, a copy of the Notice of Removal will be promptly served on Plaintiff s Counsel and filed with the Clerk of the Court of the Cumberland County Court of Common Pleas, Pennsylvania. KURTZ & REVNESS, P.C. Date: 0~/ Michael J. evness, Esquire Three Glenhardie Corporate Center 1265 Drummers Lane, Suite 209 Wayne, PA 19087 (610) 688-2855 Attorney for Defendant EXH~B~T 1 ~~. T=~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ~-, ~ ~ r- ~ . o ~ --~ _ - Heather M. Wilt ~ P. Scott Lowery, P.C. ~ `; ` t-- ~ 2 -n ~ Greenmont Drive ~ a/k/a Scott Lowery Law Off`ic~_P.C. r~ _r~' - PA 17025 ~ 4500 Cherry Creek Drive, S, ate 70(~ Enola , ` =''=; -~- , ~ Denver, CO 80246 1= - ~: _ - ; ~' -~ ; ~ And John W. Harker, Esquire _-`~ rv ; ~. ~ Scott Lowery Law Office, P.C. J~ c.~ ~ 1422 71 ~` Street, Suite B ~ Tulsa, OK 74136 Plaintiff(sl & Addresses ~ DefendantL) & Addresses PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. Writ of Summons shall be issued. and forwarded to (X) Attorney ()Sheriff. Deanna Lynn Saracco, Esquire 76 Greenmont Drive Enola, Pennsylvania 17025 Phone 717-732-3750 SaraccoLaw@aol.com Signat e of Attorney Dated: 4/20/07 WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN ACTION AGAINST YOU Dated: 020 s P othonotary By: Dep r i-3~'Y5 C,c--u.~-(1-t~~- IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Heather M. Wilt Plaintiff, ) Civil Action No. Q 7 - 3 (~~7 v. ) P. Scott Lowery, P.C., a/k/a ) Demand for Jury Trial Scott Lowery Law Office, P.C., and. ) P. Scott Lowery, an individual debt ) collection attorney, and Mr. John W. ) Harker, an individual debt collection ) attorney, Defendants. ) 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 of-her rights important to you. YOU SHOULD TARE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANDTOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street, Carlisle, PA 1-800-990-9108, 717-249-316b NOTICIA Le han demandado a usted en la Corte. Si usted quire defenderse de estas demandas expuetas en las paginas siauientes, usted tiene viente (20) dias de plazo al partir de la fecha de la excrita o en persona o por 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 dinerc o sus propiedades e otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABUGADO IMMEDIATAMENTE. SI NO TIENE ABOGADCO SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICION, VAYA EN PEF.SONP. 0 LLAME POR TELEFONO A LA OFICINA CUYP. DIRECCION SE PUEDECONSEGUIR ASISTENCIA LEGAL. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Heather M. Vdilt Plaintiff, v. Civil Action No. ~ ~'7_ 3 I~ a ` j COMPLAINT AND DEMAND FOR JURY TRIAL P. Scott Lowery, P.C., a/k/a Scott Lowery Law Office, P.C., and P. Scott Lowery, an individual debt collection attorney, and Mr. John W. Harker, an individual debt collection attorney, Defendants. COMPLAINT 1. Plaintiff is an individual, residing in the Commonwealth of Pennsylvania, and consumer pursuant to 15 U.S.C. ~ 1692x(3). 2. Defendant P. Scott Lowery, P.C., a/k/a Scott Lowery Law Office, P.C., (hereinafter Law Office) is a business entity(ies) engaged in the business of collecting consumer debts in this Commonwealth with its principal place of business located at 4500 Cherry Creel< Drive, South, Suite 700, Denver, Colorado, 80246. 3. Defendant, Mr. P. Scott Lowery, is an individual attorney engaged in the business of collecting consumer debts in this Commonwealth, with its principal place of business located at 4500 Cherry Creek Drive, South,- Suite 700, Denver, Colorado, 80246. 4. Defendant Mr..lohn ~'. Harker, is an individual attorney engaged in the business of collecting consumer debts in this Commonwealth, with its principal place of business located at 1422 71" Street, Suite B, Tulsa, OK 74136. ~. On or about March, Defendants contacted Plaintiff by U.S. Mail and/or telephone calls in an attempt to collect an alleged consumer debt. 6. Defendants are debt collectors as defined by the state law and the FDCPA. 15 U.S.C. 11692x(6). 7. Plaintiff believes and therefore avers that Defendants sent letters and/or made telephone calls to Plaintiff in February and/or March 2007, which are "communications" relating to a "debt" as defined by 1 S U.S.C. 11692a(2). 8. At all pertirient times hereto, the defendants were collecting an alleged debt relating to a consumer transaction, pursuant to 15 U.S.C. § 1692a(5). (Hereinafter the "alleged debt.") 9. Defendants communicated with plaintiff on or after one year before the date of this action, in connection with collection efforts, by letters, telephone contact or other documents, with regard to plaintiff s alleged debt. 10. Plaintiff believes and therefore avers that the letters of the Defendants contained false, misleading, deceptive and/or confusing statements. 11. Plaintiff believes and therefore avers that agents of Defendants, in its telephone communications made false, misleading, deceptive anal/or confusing statements. 12. Plaintiff believes and therefore avers that agents of Defendants, in its telephone communications, were rude, beligerent, insulting and harassing to the Plaintiff. 13. Plaintiff disputes the alleged debt and hereby requests proof of the manner in which the alleged debt was calculated, as is required by state and federal law. 14. Plaintiff believes and therefore avers that Defendant Law Firm and Lowery are not licensed to practice law in Pennsylvania. 15. Plaintiff believes and therefore avers that Defendants uses its position and title as attorneys in order to add heightened urgency and intimidation to its collection practices. 16. Plaintiff believes and therefore avers that Defendants use their attorney status to make false, misleading and/or deceptive representation and/or implications that it has authority to take legal action in Pennsylvania. 17. Plaintiff believes and therefore avers that Defendants failed to make clear to the Plaintiff that it has no authority to take legal action in Pennsylvania. 18. Plaintiff believes and therefore avers that Consumers are hurt by these tactics. COUNT I -PENNSYLVANIA FAIR CREDIT EXTENSION UNIFORMITY ACT 19. Plaintiff hereby incorporates the foregoing as if fully stated herein. 20. Jurisdiction for this Action is asserted pursuant to the Pennsylvania Fair Credit Extension Uniformity Act, 73 P.S. X2270 et seq. 21. Violating provisions of the Fair Debt Collection P-•actices Act also violate the Pennsylvania FCEU, 73 P.S. ~2270.4(a). 22. That defendants engaged in unfair methods of competition and unfair or deceptive acts or practices, as defined by FCEU and the regulations, including but not limited to, violations of 37 Pa.Code ~~303.3(3), 303.3(14), 303.3(18), 303.6 and 73 P.S. X201-2(4). 23. 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. 24. As a result of the above violations, Plaintiff is entitled to statutory, actual, treble and punitive damages and attorney s fees and costs. WHEREFORE, Plaintiff respectfully requests that this Honorable Court issue judgment on Plaintiffs behalf and against defendants for a statutory penalty, treble damages, punitive damages, attorney fees and costs pursuant to 73 P.S. 2207.5. COUNT II -PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 25. Plaintiff hereby incorporates file forgoing as if fiiliy set forth herein. 26. Jurisdiction for this action is asserted pursuant to the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. X201-1 et seq. 27. That defendants engaged in unfair methods of competition and unfair or deceptive acts or practices, as defined by UTPCPL. 28. As a result of the above violations, Plaintiff is entitled to statutor)~, actual, treble and punitive damages and attorney s fees and costs. WHEREFORE, Plaintiff respectfully requests that this Honorable Court issue judgment on Plaintiffs behalf and against defendants for a statutory penalty, treble damages, punitive damages, attorney fees and costs pursuant to 73 P.S. §201-902. COUNT III -FAIR DEBT COLLECTION PRACTICES ACT 29. Plaintiff hereby incorporates the foregoing as if fully set forth herein. 30. 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. X1337. 31. Venue lies in this District pursuant to 28 U.S.C. 1391(b). 32. The FDCPA states that a violation of state law is a violation of the FDCPA. i~ U.S.C. ~ 1692n. 33. Plaintiff believes and therefore avers that defendants do not have proper assignment of the claim, and is therefore, unable to collect the alleged debt pursuant to18 Pa.C:S. ~7311(a)(1) and (2). 34. Plaintiff believes and therefore avers that defendants do not have proper assignments and/or documentation permitting said defendants to charge interest, fees and/or costs. 18 Pa.C.S. ~73112(b)(1). 35. The FDCPA states that a violation of state law is a violation of the FDCPA. 15 U.S.C. ~ 1692n. Defendants violated this section of the FDCPA. 36. Plaintiff believes and therefore avers that defendants added interest, fees and costs in violation of state and federal law, 15 U.S.C. ~1692f(1) and 1692e(2)A and B. 37. There was never an express agreement by Plaintiff to pay any additional fees; cost or interest to Defendants or any of its agents. 3~. Plaintiff believes and therefore avers that the Defendants violated 15 U.S.C. 1692e(2)(A), (5) and (10) by misrepresenting the imminence of legal action by Defendants. 39. Plaintiff believes and therefore avers that the Defendants violated 1 ~ U.S.C. § 16928, by failing to give the required notices to the Plaintiff in the initial communication. 40. Plaintiff believes and therefore avers that the Defendants violated l 5 U.S.C. ~ 1692e(11) by failing to provide the consumer with. the proper warning, "this is an attempt to collect a debt, any information obtained will be used for that purpose," during the initial telephone communications and in subsequent communications. 41. Plaintiff believes and therefore avers -that the Defendants violated 15 U.S.C. ~ 16928, by failing to provide the consumer with the proper validation notice within five days of the initial communication. 42. Plaintiff believes and therefore avers that the Defendants violated 15 U.S.C. ~ 1692f, by threatening and/or filing suit without proper legal authority in Pennsylvania. 43. Plaintiff believes and therefore avers that the Defendants violated 1 ~ U.S.C. ~ 1692d(5) by causing the phone to ring and engaging the consumer in repeated conversations. 44. Plaintiff believes and therefore avers tl~at the Defendants violated 1 ~ U.S.C. ~ 1692d(6) by malting telephone calls without disclosing his/her identity. 45. Plaintiff believes and therefore avers that at all times pertinent hereto, the initial communication was made by telephone. 46. At all times pertinent hereto, the Plaintiff was unable to dispute the alleged debt. 47. The FDCPA states, a debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. IS U.S.C. ~1692f. Plaintiff believes and therefore avers that Defendants violated this section of the FDCPA. 48. The FDCPA. states, a debt collector may not use false, deceptive or misleading representation or means in connection with the collection of any debt. 15 U.S.C. ~ 1692e(5) anal (10), ~ 1692f(8) and ~ 1692j. Plaintiff believes and. therefore avers that Defendants violated these sections of the FDCPA. 49. The FDCPA states, a debt collector may not discuss the consumers alleged debt with a third party. Plaintiff believes and therefore avers that Defendants violated this section of the FDCPA. 50. The FDCPA states, a debt collector may not engage in any conduct t11e natural consequence of which is to harass, oppress or abuse any person in connection with the collection of a debt. 1 ~ U.S.C. ~ 1692d. Plaintiff believes and therefore avers that Defendants violated this section of the FDCPA. 5 1. The FDCPA provides certain rights to the consumer regarding his/ her right to dispute the alleged debt, 15 U.S.C. ~ 16928. Defendants violated this section. of the FDCPA. 52. Any threat of litigation is false if the defendant rarely, sues consumer debtors or if the defendant did not intend to sue the Plaintiff. Bently v. Great Lalces Collection Bureau, 6 F.3d 62 (2d Cir. 1998). See also, 15 U.S.C. ~1692e(5), 15 U.S.C. ~1692e(10). 53. Courts have held that the threat of litigation is present simply because the letter comes from an attorney; the letter need not explicitly threaten suit. Crosslev v. Lieberman, 868 F.2d 566 (3d Cir. 1989). United States v. Central. Adjustment Bureau, 667 F. Supp. 370, 397 (N.D. Tex. 1986). 54. An attorney's interstate collection contacts must avoid misrepresenting the attorneys authority to sue where he or she is not admitted to practice. Crosslev v. Lieberman, 868 F 2d 566 (3d Cir. 1989). 55. Defendants' contacts would easily confuse the least sophisticated consumer and cause. the consumer to falsely believe that he/slle could be sued in an out-of--state court. Rosa v.. Gaynor, 704 F. Supp. 1 (D. Conn. 1989). 56. At all time pertinent hereto, the defendants were acting by and through. its agents, sei-~~ants and/or employees, wllo were acting within the scope and course of their employment, and under the direct supervision and control of the defendants herein. 57. At all times pertinent hereto, the conduct of defendants as well as their 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. 58. The above mentioned. acts with supporting cases demonstrates that the conduct of defendants rises to the level needed for punitive damages. 59. Defendants, in its collection efforts, violated the FDCPA, inte~~ alia, Sections 169?, b, c, d, e, f, g, h, and/or n. 60. Defendants, in its collection efforts, used false or deceptive acts and intended. to oppress and harass plaintiff. 61. 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. WHER>CFORE, Plaintiff respectfully requests that his Honorable Court enter judgment for Plaintiff acid 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. (B) Award Plaintiff general damages and punitive damages for anxiety, harassment, and intimidation directed at Plaintiff 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 ai a rate of $350.00/Hour for hours reasonably expended Plaintiff s attorney in vindicating his ri~?hts under the FDCPA, permitted by 15 U.S.C. ~16921<(a)(3). (D) Award declaratory and injunctive relief, and such other relief as this Honorable Cotu-t deems necessary and proper or law or ity may provide. ~~ Dated:6/21/07 By: /s/Deann acco Deanna Lynn Saracco, Attorney for Plaintiff 76 Greenmont Drive, Enola, PA 17025 Telephone 717-732-3750 Fax 717-728-9498 Email: SaraccoLaw@aol.coin EXHIBIT 2 OFFICE OF THE SECRETARY OF STATE OF THE STATE OF COLORADO CERTIFICATE I, Mike Coffman, as the Secretary of State of the State of Colorado, hereby certify that, according to the records of this office, SCOTT LOWERY LAW OFFICE, P.C. is a Corporation formed or registered on 07/15/1999 under the law of Colorado, has complied with all applicable requirements of this office, and is in good standing with this office. This entity has been assigned entity identification number 19991133426 • This certificate reflects facts established or disclosed by documents delivered to this office on paper through 06/28/2007 that have been posted, and by documents delivered to this office electronically through 07/03/2007 (a, 10:07:13 I have affixed hereto the Great Seal of the State of Colorado and duly generated, executed, authenticated, issued, delivered and communicated this official certificate at Denver, Colorado on 07/03/2007 @ 10:07:13 pursuant to and in accordance with applicable law. This certificate is assigned Confirmation Number 6823536 Secretary of State of the State of Colorado *«^~~*s***~-r~~x+**s~***~****.*~~~~******•Erid of Certificate**st****•**:k~+.**rr**~r*.**~**r*****::* Notice: A certificate issued electronically from the Colorado Secretary of State's Web site is fully and immediately valid and effective However, as an option, the issuance and validity of a certifecate obtained electronically may be established by visiting the Certif cafe Confirmation Page of the Secretary of State's Web site, htm://x~wtivsos stare co.us/bi~/Certi tcateSearchCriteria do entering the certificate's confirmation number displayed on the certificate, and following the instructions displayed. Con rming the issuance of a certiTcate is merely optional and is not necessary to the valid and effective issuance ofa certi tcate. For more information, visit our Web site, http:i/H,µ~,sosstate.co.us/ click Business Center and select "Frequently Asked Questions. " CERT_GS_D Revised 01/02/2007 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA HEATHER WILT Plaintiff(s), v. SCOTT LOWERY LAW OFFICE, P.C tla P. SCOTT LOWERY Civil Action No. Defendant(s)/ Third-Party Plaintiff(s), v. Third-Party Defendant(s). DISCLOSURE STATEMENT PURSUANT TO Fed. R. Civ. P. 7.1 (Civil Action) Pursuant to Rule 7.1 of the Federal Rules of Civil Procedure, Defendant who is Scott Lowery Law Office t/a P. Scott Lowery (name of party) (type of party) makes the following disclosure: Page 1 of 2 1. Is the party anon-governmental corporate party? ^ YE5 ,~3 NO 2. If the answer to Number 1 is "yes," list below any parent corporation or state that there is no such corporation: 3. If the answer to Number 1 is "yes," list below any publicly-held corporation that owns 10% or more of the party's stock or state that there is no such corporation: The undersigned party understands that under Rule 7.1 of the Federal Rules of Civil Procedure, it must promptly file a supplemental statement upon any change in the information that this statement requires. ~--' ,r,~ Signature of Counsel for Party Date: July 3, 2007 Page 2 of 2 C7 ~- `~ ; ~ ~`~ . c__. ~'"' n~ ^ _.r i ~^ ~ s ~l _ ~ ~.. i. .: t I *{ !? ~ y ... . ~~ ` -~y ~ ~.~ _ ~~ i ~ ~~_~ ..~