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HomeMy WebLinkAbout03-4250PAULA MUMBAUER, Plaintiff, : CIVIL TERM NO.: C)~ ~ DIVERSIFIED COLLECTION SERVICES,: INC, Defendant. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA NOTICF~ TO PLF~AD 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 ABOGADO0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICION, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE PUEDECONSEGUIR ASISTENCIA LEGAL. PAULA MUMBAUER, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL TERM NO.: DIVERSIFIED COLLECTION SERVICES,: INC. Defendant. COMPLAINT 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 US.C. 1391(b). Plaintiff is an individual and consumer pursuant 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 555 McCormick Street, San Leandro, California, 94577-0757. 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 numerous dunning notices, collection letters and made numerous telephone calls to Plaintiff and her neighbors, which are "communications" relating to a "debt" as defined by 15 U.S.C. §1692a(2) and §1692a(5). See Exhibit A attached. 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. The FDCPA states, a debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. 15 U.S.C. §1692f. 11. 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. 12. The FDCPA states, a debt collector may not engage in any conduct the natural consequence of which is to harass, oppress or abuse any person in connection with the collection of a debt. 15 U.S.C. §1692d. 13. The FDCPA states, a debt collector may not communicate with a consumer in connection with the collection of any debt, (1) at any unusual time or place or a time or place knows or which should be known to be inconvenient to the consumer; (2) if the debt collector knows the consumer is represented by an attorney...; and (3) at the consumer's place of employment if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communication. 15 U.S.C. §1692c(a)(1), (2) and (3). 14. The FDCPA states, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer. 15 U.S.C. §1692c(b). 15. The FDCPA states, it is unlawful to design, compile and furnish any form knowing that such form would be used to create the false believe in a consumer that a person other than the creditor of, such consumer it pa~icipating in the collection of or in an attempt to collect a debt such consumer allegedly owes such creditor, when in fact such person is not so participating. 15 U.S.C. §1692j. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. On or about February 20, 2003, defendant drafted and mailed a dunning notice or collection letter, to Plaintiff, via U.S. Mail, entitled "WARNING NOTICE" in bold letters. A true and correct copy of the February 20, 2003, letter is attached as Exhibit A and is incorporated as if fully set forth herein. On or about September 18, 2003, defendant drafted and mailed a dunning notice or collection letter, to Plaintiff, via U.S. Mail, entitled "NOTIFICATION" in bold letters. The letter further stated that, "if funds are not readily available, we suggest that you contact either your credit union, a bank, or a finance company to obtain the entire amount to pay this debt." A true and correct copy of the September 18, 2003, letter is attached as Exhibit B and is incorporated as if fully set forth herein. Agents of defendant contacted Plaintiff's neighbor and discussed the alleged debt to the neighbor. Agents of defendant contacted Plaintiff's hairdresser and discussed the alleged debt with the hairdresser. Agents of defendant harassed Plaintiff's hairdresser while she was performing beautician services for customers other than Plaintiff, causing the telephone to ring repeatedly. Agents of defendant contacted Plaintiff's neighbor, hairdresser and boyfriend more than one time, despite being told not to contact them again. Agents of defendant repeatedly called and permitted the telephone to ring, at the residence of PlaintiWs boyfriend in an attempt to discuss the alleged debt. The amount of the alleged debt is in dispute. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. The mount of the alleged debt has increased exponentially, making it impossible for Plaintiff to pay. Defendant in its collection efforts, demanded fees and costs in violation of the FDCPA, 15 U.S.C. §1692f(1) and 1692e(2)A and B. Defendant's letter was false, misleading and deceptive and failed to inform Plaintiff of her rights under the FDCPA, in violation of 15 U.S.C. §1692e. The form of Defendant's letter was intentionally confusing, deceptive and misleading in violation of 15 U.S.C. §1692e. Defendant caused the telephone to ring and engaged Plaintiff'S neighbor and hairdresser in repeated telephone conversations with the intent to annoy, abuse and harass every person at the called number, in violation of 15 U.S.C. §1692d(5). 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 and content of their telephone calls was intended to intimidate and coerce Plaintiff into paying the alleged debt, in violation of 15 U.S.C. § 1692d. Defendant communicated with persons, other than the Plaintiff, in connection with the alleged debt in violation of 15 U. S. C. §1692c(b). Defendant falsely implied in its communications that the federal government was involved in the collection of the alleged debt, in violation of 15 U.S.C. § 1692j. 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). Defendant's letter created a false sense of urgency in both Plaintiff as well as would 38. 39. 40. 41. 42. 43. 44. 45. 46. 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). Defendant's letter was intentionally confusing and deceptive, in violation of 15 U.S.C §1692e(5) 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 repeflfive nature of the violations under the FDCPA. 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 fights 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, i, and/or n. Defendants, in their collection efforts, used false or deceptive acts and intended to oppress and harass plaintiff 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 defendant 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. Rar'ltan Valley Collection Agency, F. Supp. (DN.J. May 23, 1989), and Rabideau v. Management Adjustment Bureau, 805 F. Supp. 1086, 1095 (W.DN.Y. 1992), as Plaintiff could have brought more than one action but consolidated her claims for judicial economy. (B)Award Plaintiff damages for anxiety, harassment, and intimidation directed at her 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 $300.00/hour for hours reasonably expended by his attorney in vindicating her 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 47. Plaintiffhereby incorporates Count I of this Complaint as if fully set forth herein. 48. Jurisdiction for Count II is pursuant to the Pennsylvania Fair Credit Extension Uniformity Act. 73 P. S. §2270.1 et seq. 49. That defendant engaged in unfair methods of competition and unfair or deceptive acts or practices. 50. Defendant's act 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. 51. As a result of the above violations, Plaintiff is entitled to statutory, actual, treble and punitive damages and attorney's fees and costs. 52. Plaintiffbelieves and therefore avers that defendant made material misrepresentations to Plaintiff 53. Defendant misrepresented to Plaintiffthat she owed return check fees of $30.00, in violation of Section 2270.4(b)(5) of the Fair Credit Extension Uniformity Act. 54. Defendant intended to made false statements and material misrepresentations to Plaintiff, via United States Mail, in order to coerce Plaintiffinto paying more than the alleged debt. WltEREFORE, Plaintiffrespectfully 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: 8/27/03 Deanna Lynn Smith Attorney for Plaintiff 76 Greenmont Drive Enola, Pennsylvania 17025 Telephone 717-732-3750 Fax 717-728-9498 SMITHDELYN~aol. com Diversified Collection Services, Inc. 555 McCormick St., San Leandro, CA 94577-0757 Direct Line: 541-955-7800 Main Line: (209) 858-0600 February 20, 2003 File #7- 50567404 PAULA L MUMBAU-ER 629 MARTINS LN BETHLEHEM PA 18018-5419 Claim of: Balance: Account No: WARNING NOTICE Diversified Collection Services, Inc. American Education Services (AES) $18758.39 as of: March 22, 2003 90007700751 As you are aware by now, Diversified Collection Services, Inc. (DCS) is responsible for collecting your defaulted student loan(s); Through information previously sent to you by your lender, our client and by DCS it should be obvious that the Federal Govemmant has~ /mplemented stringent measures to recover their defaulted Guaranteed Student Loan (GSL) money one way or the other. Several of the measures you are or may be subject to are as follows: · All national credit bureaus are notified of your default and this information will remain on your credit profile for seven (7) years, making it difficult, if not impossible, to obtain credit cards or loans for such things as cars, houses, etc. · Your name and social security number are submitted annually to the US Deparmaent of Treasury to offset any payments you receive from the federal government such as tax refunds, federal retirement benefits, and/or other financial assistance. In some states, the state tax board is authorized, to withhold any tax refund due you as well. · Each guarantor is required by law to add the costs of collection to your defaulted loan. Although costs may vary between guarantors, the U.S. Department of Education is, as an example, currently adding 25% of the total balance as collection costs to the defaulted loans they are collecting. · Additionally, administrative wage garnishment provisions of P.L. 102-164 provide for garnishment of the defaulted borrowers wages directly from their employer without going to court and without their permission. Once the required notification has been completed, a wage witlxholding order is sen~ to their employer requiring the employer to deduct ten percent (10%) of their net income before they are paid. This federal wage garnishment law oven-ides all existing state garnishment laws. Nils law r~:quiras notification to defaulted borrowers of an intent to garnish and the right to request an adminish-ative hearing in order to contest a wage garmshment. · A law has been passed which eliminated the statute of limitations as a defense to repaying a guaranteed student loan. · Laws restricting the dischargeability through bankruptcy of guaranteed student loans have been enacted. Due to the severity of these measures, we are allowing defaulted borrowers a chance to establish a satisfactory repayment schedule so they can voluntarily retire their obligation on more lenient terms. We urge you to contact our fn-m to begin repayment of your defaulted loan(s). Keep in mind that we are entitled to use, and we intend to use, all approved means at our command to collect debts which have been referred to us. This is an attempt to collect a debt by a debt collector, and any information obtained will be used for that purpose. Contact your DCS Account Representative, Hal Cox, at 541-955-7800. SEE THE REVERSE SIDE FOR THE FEDERAL VALIDATION NOTICE AND OTHER STATE COMPLIANCE INFORMATION. DEF/LR003/D206 HECKER BROWN SHERRY AND JOHNSON LLP By: Eugene A. Luciw, Esquire Attorney ID No. 38969 Suite 800, The Professional Building 65 E. Elizabeth Avenue Bethlehem, PA 18018-6506 (610) 868-1400 Attorneys for Defendant COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND PAULA MUMBAUER 1822 E. TREMONT STREET ALLENTOWN, PA 18109 Plaintiff, DIVERSIFIED COLLECTION SERVICES, INC., 555 McCORMICK STREET SAN LEANDRO, CA 94577-0757 Defendant. Docket No. 03-4250 PRAECIPE FOR NOTICE OF REMOVAl, TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please file of record the attached true and correct certified copy of the Notice &Removal o£the above-captioned civil action to the United States District Court for the Middle District of Pennsylvania. The original Notice was filed on September 23, 2003, with the Clerk of the United States District Court for the Middle District of Pennsylvania. HECKER BROWN SHERRY AND JOHNSON LLP By: Eugene A//~Luciw, Esquire Attorneyl(for Defendant 123427-1 CERTIFICATE OF SERVICE I, Eugene A. Luciw, Esquire, hereby certify that a true and correct copy of the foregoing Praecipe was served on September 24, 2003, via first class mail, postage pre-paid on the following: Paula Mumbauer c/o Deanna Lynn Smith, Esquire 76 Greenmont Drive Enola, PA 17025 HECKER BROWN SHERRY ,SAND JOHNSON LLP By: Eugene A. ~t~ciw, Esquire Attorneys ~or Defendant: 123427-1 HECK£R BROWN BHERRY AND JOHNBON LLP · SUITE BOO · THE PROFESSIONAL BUILDING · 65 E. ELIZABETH AVENUE · E~ETHLEHEM, pA 1BOIB-6506 %.JS44 (P, ev 3/99) CIVIL COVER SHEI~T The JS-44 civit cover sheet and the information 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 form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Cour~ for the purpose of initiating the civil docket sheet. (SEE SEPARATE INSTRUCTION SHEET) I. (a) PLAINTIFFS DEFENDANTS Paula L. Mumbauer 1822 E. Tremont Street Allentown, PA 18109 (b) County of Residence of First Listed Plaintiff Lehigh (EXCEPT IN U.S. PLAINTIFFCASES) (c) Attorneys (Firm Name, Address, an d Telephone Number) Deanna Lynn Smith, Esquire 76 Greenmont Drive Enola, PA 17025 (717) 732-3750 Diversified Collection Services, Inc. 555 5L~Cormick Street San I~xxrldro, CA 94577 Attorneys (If Known) Eugene A. Luciw, Esquire Hecker Brown Sherry & Johnson T,LP 65 E. Elizabeth Avenue, Suite 800 Bethlehem, PA 18018 (610) 868-1400 I1. BASIS OF JURISDICTION (Phce an "X" in One Box Only) [] I U.S Government Plaintiff Federal Questic~ (U.S. Governnent Not a Party) U.S. Governmert [] 4 Diversity Defendant (Indicate Citizenship of Parties in Item IlD IV. NATURE OF SUIT (Refer to Instruction sheet) Please insert hhture of Suit Code 890 Other Statutory Actions Please insert Descriplion III. CITIZENSHIP OF PRINCIPAL PARTIES (For Diversty Cases Or ly) (Place an ~* X" in o ne Box for Plaint/ff and O ne Box r~r De fen danl) PTF DEF PTF DEF Citizen of This S~ate [] I [] I Incorporated or Principal Place [] 4 [] 4 of Business In TNs State V. ORIGIN ~ I Original 5~ 2 Removed from Proceeding State Court CifizenofAnotherState [22 [~ 2 Incorporated and Principal [~ 5 [] 5 of Business In Pamther State Citizen or Subject ora [23 [] 3 F~dl~2a¢~.~l'~ [~~[~]_[,~ [216126 SFP 2 3 2003 CLERK (PLACE AN "X" IN ONE BOX ONLY) Appeal to District Remanded from [] 4 Reinstated D 5 Transferred 6'om [~ 6 Multidistrict ~ 7 Judge from Appellate Court or m~other district Magistrate Reopened (specify) Litigation Judgmept Plaintiff asserts a claim under the Fair Debt Collection Practices Act, 15 U.S.C § 1601, et seq. VII. REQ UESTE D IN [] CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only ifdemanded in complaint COMPLAINT: UNDER F.R.C.P. 23 unspecified JURY DEMAND: 12] Yes VIII. RELATED CASE(S) IF ANY (See instructions): JUDGE DOCKE'I NUMBER SIGNATUREOF AT RNEy OFRECORD 9/22/03 . Euqene~A. Luciw, Esquire HECKER BROWN SHERRY AND JOHNSON LLP By: Eugene A. Luciw, Esquire Attorney ID No. 38969 Suite 800, The Professional Building 65 E. Elizabeth Avenue Bethlehem, PA 18018-6506 (610) 868-1400 Attorneys for Defendant RECEIVED SCRANTON SEP 3 2003 MARY E. I~CLERK Per DEPD'FY CLERK UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA PAULA MUMBAUER 1822 E. TREMONT STREET ALLENTOWN, PA 18109 Plaintiff, DIVERSIFIED COLLECTION SERVICES, INC., 555 McCORMICK STREET SAN LEANDRO, CA 94577-0757 Defendant. Civil Action No. : _. ORDER AND NOW, this day of ,2003, upon consideration of the within Notice of Removal, it is hereby ORDERED, ADJUDGED and DECREED that the case ofPaula Mumbauer v. Diversified Collection Services, Inc. now pending in the Court of Common Pleas of Cumberland County, Pennsylvania, and filed to docket no. 03-4250 is hereby removed to the United States District Court for the Middle District of Pennsylvania. BY THE COURT: Jo 123427-1 HECKER BROWN SHERRY AND JOHNSON LLP By: Eugene A. Luciw, Esquire Attorney ID No. 38969 Suite 800, The Professional Building 65 E. Elizabeth Avenue Bethlehem, PA 18018-6506 (610) 868-1400 Attorneys for Defendant FILED SCRANTON gFP 2 3 2003 er__ DE~U"J'Y OLE~IK UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA PAULA MUMBAUER 1822 E. TREMONT STREET ALLENTOWN, PA 18109 Plaintiff, DIVERSIFIED COLLECTION SERVICES, INC., 555 McCORMICK STREET SAN LEANDRO, CA 9457%0757 Defendant. Civil Action No. : : : . !: C¥ o7 7 .. .. ._ NOTICE OF REMOVAL Pursuant to 28 U.S.C. § § 1331, 1441 and 1446, Diversified Collection Services, Inc. ("DCS"), Defendant in the above-captioned action, removes to the United States District Court for the Middle District of Peunsylvania the case captioned Paula Mumbauer v. Diversified Collection Services, Inc., from the Court of Common Pleas of Cumberland County, Civil Term No. 03-4250 and as grounds for removal states as follows: 1. On August 28, 2003, Plaintiff, Paula Mumbauer, instituted a civil action by the filing of a Civil Complaint in the Court of Common Pleas of Cumberland County at Civil Term No. 03-4250. A true and correct copy of the Complaint is attached as Exhibit "A". 123427-1 HECKER BROWN SHERRy AND JOHNSON LLP · SUITE OOO · THE PROFESSIONAL BUILDING · 65 E ELIZABETH AVENUE · BETHLEHEM, pA I Bo1~1-6506 2. The Complaint was served by Certified Mail on DCS on September 9, 2003. A true and correct copy of the return of service cannot be attached, since Plaintiff has chosen not to file one with the state court. The same service date is also the first date on which Defendants, or any of them, received the Civil Complaint. 3. The basis for federal court jurisdiction is 28 U.S.C. §1331 4. Title 28 U.S.C. §1331 provides as follows: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or :~reaties of the United States. 5. Title 28 U.S.C. §1441(a) provides as follows: Except as otherwise expressly provided by Act ,of Congress, any civil action brought in a State Court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded. 6. Title 28 U.S.C. §1441(b) similarly provides as follows: Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. 7. Defendant, DCS, is a corporation incorporated under the laws of the State of California with offices and a principal place of business at 555 McCormick Street, San Leandro, California 94577-0757. 8. DCS is represented bY undersigned counsel and petitions the Court for removal of 123427- this action. Removal is, therefore, with the express consent of' all Defendants. 9. In the Civil Complaint, Plaintiff asserts a claim under the Fair Debt Collection Practice Act, 15 U.S.C. §1601, et seq. ("FDCPA"). She expressly states that Defendants violated that statute. 10. As such, Plaintiff's aforesaid claim arises under a law of the United States and is a claim over which this Honorable Court has original jurisdiction. 11. This Court has subject matter jurisdiction over Plaintifl"s FDCPA claim pursuant to 28 U.S.C. §1331. 12. This action is removable to federal court pursuant to 28: U.S.C. §1441, because it could have been filed originally in this court pursuant to the federal-question jurisdiction conferred by 28 U.S.C. §1331. 13. To the extent that the foregoing basis for federal jurisdiction does not extend to particular other claims against Defendant, this Court has supplemental jurisdiction pursuant to 28 U.S.C. §1367 and/or §1441(c). 14. This Notice of Removal has been filed within thirty (30) days of the date of service of the Complaint upon Defendant and the receipt of the Complaint by the same. 15. Pursuant to 28 U.S.C. § 1446(a), Defendants have attached true and correct copies of all process, pleadings and orders served upon one or more Defendants as of the date of this Notice. 16. The Court of Common Pleas of Cumberland County, Permsylvania lies within the district and division embraced by the United States District Court for the Middle District of Pennsylvania. 123427-1 HECKER BROWN SHERRY AND JOHNSON LLP . SUITE I~OO . THE PROFESSIONAL BUILDING; · 65 E ELIZABETH AVENUE · BETHLEHEM, pA 18011~-6§O6 WHEREFORE, Defendant, DCS, hereby removes the action of Paula Mumbauer v. Diversified Collection Services, Inc., Civil Term No. 03-4250. to the United States District Court for the Middle District of Pennsylvania. Date: HECKER BROWN SHERRY AND JOHNSON By: Suite 800, The Professional Building 65 E. Elizabeth Avenue Bethlehem, PA 18018 Telephone: (610) 868-1400 Fax: (610) 868-217!) Attorneys for Defendant 123427-1 HECKER BBOWN SHERRY AND JOHNSON LLP ' SUITE 800 * THE PROFESSIONAL BUILDing · 65 E ELIZABETH AVENUE * BETHLEHEM, pA I BOI 8.1~506 CERTIFICATE OF SERVICE I, Eugene A. Luciw, Esquire, hereby certify that a true :and correct copy of the foregoing Notice of Removal was served on September 22, 2003, via first class-mail, postage pre-paid to the below-listed party: Paula Mumbauer c/o Deanna Lynn Smith, Esquire 76 Greenmont Drive Enola, PA 17025 HECKER BROWN SHERRY AND JOHNSON LLP Eugen/e~A. Luciw, Esquire Attort(eys for Defendant 123427-1 HECJ~ER BF(OWN SHERRY AND JOHNSON LLP · SUITE 800 · THE PROFESSIONAL BUiLDiNG . 65 E EL~ZABETH AVENUE · BETHLEHEM, PA I BOl I~ 6506 PAULA ~AUEI~ : IN THE COURT OF COMMON PLEAS : ~~ CO~, : TO THE DEFENDANT NAMED HER~:IN: 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~ 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. YO~ 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 O~T W~RE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 717-249=3166, 800990-9108 Le has demandado a usted en la corte. Si usted quire esCas de-~andas expuetas en las paginas siquientes, uated tiene dias de plazo al par~lr de la fecha d· la excrita o en persona o pot abogado y archivar en la torte en fo~ma excrita sus defensas o sus obJectiones a las demands, la corte tomara medidas y puede entrar usa ordcn contra usted sin previo av~so o notificacion y pot cualquier queJa o alivio que es pedido en la peticion de de~anda. Ua=ed puede perder dinero o sus propiedadss o otros derechos /~ort&ntes para usted. LLEVE ESTA DEMANDA A UN ABOGADO II~EDIATAMENTE. SI NO TIENE ABOGADOO SI NO TIENE EL DINERO SUF~CIENTE DE PAGAR TAL SERVICIONt VAYA EH PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE PUEDECONSEGUIR A~ISTEHCIA LEGAL. //A ti PAULA MUMBAUER, : IN TH~ COUI~T OF COMMON PLEAS Pl~t~fl~ : CL~MB~ COUNTY, : PENNSYLVANIA V. : : CIVIL TERM NO.: DI~P.R,S~nsD CO~.L~CTION SF~VICES,: 1. luri~i~ion for ~ ~tioa i~ ~erted ~ to tl~ Fair De~t ColI~doa P~ 9. The FDCPA applies to obligations end alleged obligations. 10. The FDCPA states, a debt collector may not use unfalr or unconscionable means to collect or attempt to collect any debt. 1~ U.$.C. §1692f. 11. The FDCPA states, a dd~t ~ollector may not us~ false, deceptive or represemation or me~us in co~,~/oa with the collection of shy debt. 15 U.$.C. §1692e. 12. The FDCPA sts~es, a dd0t collector may not engage in any conduct tho mtural conseque~ of which is to i~r*~, oppre~ or abuse any person in connection with the collecfionofadebt. 15 U.S.C. §1692d. 13. The FDCPA ~n_t~, a debt co~lector may not comm~+~ with ~ consmner in ~on w/th the collection of any debt, (l) at any unusual time or plnce or a time or place knows or which should be known to be inconvenient to the consum~ (2) if the debt collector knows the con.=~ is represented by an attorney...; and (3) at the con.~,~'s place of ~?loyment if the debt collector knows or bas reason to know that the comum~'s . employer pwhYoits the consumer from rece/ving such comm,~-~t~o~. 15 U.S.C. §~qc/s×0, (~) and (~). 14. The NDCPA states, a debt collector may not co,~,~cate,/n cont~-ction w/th the collection of any debt, with any peoon other thn,~ the cons~m~r. 15 U.S.C. 15. The I~)CPA st~ it is ~mlnwfifl to d~/~. compile nnd f'tlrnhh s. tly form know~ ~ such form would be used to create the fahe be//eve in a con.~umer tim a peoon other the creditor of such con.=,,~,~ it parfidpating in the collection of or in ~n at~m,~t to collect a debt such consumer tllegedly owes such cred/tor, when in fact such person is not so partidpst~ng 15 U. SC. §1692j. 16. On or about February 20, 2003, defendaat draft, ed and fa*lied a dlmnlng notice or collection letter, to pi,italy, vis U.S. Mail, entitled "WARNING NOTICE" in bold letters. 17. A true and correct copy ofthe Fel~ary 20, 2003, letter is a.+tn~ed ss Exhibit A md is incorporated ss if fully set forth here~ 18. On or about September 18, 2003, defendant draited and mailed a dlmnin?, llOtic, e or collection letter, to pIslmi~ ~a U.S. Mail, entitled ~NO'ril~lClTiOlqTM in hold lettera~ 19. The letter further stated that, ~iffunds are not read~ available, we suggest that you contact either your c~edit ulliolL a bsnlr, or a 6n,nco coIllpally to obtakl the e~re a~oullt to pay ~ debt.' :20. A mae and correct copy of the September 18, 2003, letter is attsc, hed ss Ext~ibit B aad is incorpor*_t_~_ as if fully set forth here~ 21. Ag,~t* of defendaat c,x~lacled p!slntltT's neig, hhor and ~ the alleged debt to the neighbor. 22. Agents of defendant contacted pI,i~s hairdre~er ,~a diacossed the alleged debt with . the lugrdresser. 23. Agents of defendant hanused plsi~tiff's hairdr~____*er_ wt~e she was performing beautician services for enstomera other th~ Plaintiff; ~,,,4~g the t~epho~e to gag repeatedlyl 24. Agents ofdefendent contacted Plaintiff's neighbor, hairdreaaer and boy~ more than oae time, despite bein~ told not to contact them agah~ 25. Agents of defeadaat repeatedly called and permitted the telephone to rh~ at the re,sideace of Plaintiff's boyfriend in aa attempt to discuss the alleged debt. 26. The amount of the alleged debt is in dispute. 27. The amount of thc alleged dcbt has increased expone~;~lly, met-;,~g it impossible for Plaintiff to pay. 28. Defendant in its collection efforts, demanded fees and costs in ~iolation °f the FDCP& 15 U.S.C. §1692i~1) and 1692c(2)A and B. 29. Defendant' s lettel' was f:alse' misl '~ d;n~ and deceptive Im~ tic'ed t° in6°rm P1 "~"tlIT °f her rlghu under the FDCPA, in violation of 15 U.S.C. § 1692e. 30. The form ofDefendant's letter was inte~ti°nally c°ni~g~ deoeptlve and n';`l*~lln5 in violation of 15 U.S.C. §1692e. :31. Defendant caused the ~,lephone to ring and _~?.a&cd Plaintiff' i neighbor and hairdresser in repeated telephone conversations with the intent tO anaoy, abuse and harass every person at the called number, in ~iolat/on or' 15 U.S.C. §1692d(5). 32. Dcfmd~,s letter failed to hfonn Pl~intl/T tlu~t she is entitled to mst'e partial payments, in violation of 15 U.S.C. §1692b. 33. The lsn_c, ua&e o f Dcr~aant's lcttcr and content of thelr telephone e~lls was intended w in~rradate and coerce p~,;mi~'into paying the allesed debt, in violation of 15 U.S.C. §1692cL 34. Def.endant comm, nlcatcd with persons, other thsn the Plalntiff, in c°nnecii°n ~ ~e alleged debt in violat/on of IS U. S. C. §1692c(b). 35. Defendant fahely implied in its comrm~icafions tl~ the federal g°v~ ~ involved in the collection of the alleged debt, in violation of 15 U.S.C. §16~i. 35. Plalntiffbelleves and therdore svers that she was confused, mldead and deceived by Defendant's mass mailed for letters. ~ 208 B.P~ 6~8 (E.D. Pa 1977). 37. Def~rls~t's letter created a false sense of urgency in both Phlntifl' ss well as w°uld 47. 48. 49. 50. compenzation is sought. .WHEREFORE, Plaintiff respectfully requests that his iHonorabla Court e~ter judgment on her I~-h~!t and asain~t defendant and issue an O~d~. (A) Award Plaht/ff statutory damagea in the amount of One Thousand Dollars ($1,00o.00) for each violaliun of the FDCPA or ~h separate and discrete incident in which defendants have violated the FI)CPA. Ks.qhAIr v. Rm-ltm~ Valley_ ~ F. Supp. (D.N.I. May 23, 1989), and ~ !~snsae~nent id~ l~ur~, 805 17, -qupp. 1086, 1095 (W.D.N.Y. 1992), a~ Plaintiff could have brought more thsn one aatiun but consolidated her elAima for (B) Award Plaintiff damages for anxiety, ha.rasml~t, and intimidation directed at her in an amount not leas th,~ Te~ Thou,sand Dollara ($10,000.00), as well as the repciiiice nature of defendams form letters. (C) Award Plalntiff costs of this litigation, including a reasonable attorney, s fee at a rate of $'300.00fnour for hours reasonably expanded by his attorney in vindic-~g her rights under the FDCPA, permitted by 15 U.S.C. §1692k(a)(3). (D) Award declaratoz7 and in. kmi-'tive relic/; and such other teller as this Honorable Court deems n~esaazy and proper or law or equity may provide. Plainfiffhereby incorporates Count I of this Complslm as if fully set forth herein. ltuisdiction for Count II Ls pursuant to the Pennsylvania Fair Credit Exteasion Uniformity. Act. 73 P..q. §2270.1 et seq. That defendant engaged in unfair methods of competitlun and unfair or deceptive a~'tz or pra~ticea. Defendant's a~t as d~ibed herein were done with malicious, intentions[, willful, reclde~s, net~sent ~d wanton disrel~rd for Plaintiff's fi~ts with the purpose of coercing plnlntiffto pay thc slicked debt. 51. As a result of the ~bove violations, Plaintiffis enIitled to tm~_ ~tory, acc,si, treble and punitive dan~e~'--a attorney's tees and oosta. 52. Plsi~4Frbelieves and therefore s~e~s that defendant t~ltde mnterinl m~represm~ntlons to plnintlfF 53. Dofendant misrepreamted m Plainti~that she owed remm check foea of ~30.00, i- violstion of Section 2270.4(bX5) of tho Fair Credit E~mion Uniformity Aa. 54. Def~lda~t intended to made f~se statements and ~ mlerepresentation~ to plnlnfi~ via United States l~sil, in o~er to coerce Plaintiffinto paying more thnn the allesed debt. W- s:REFORI~, pI,i,~tm'respect~nlly requeats that ~h~ Honorable Court, ~ a~ainst statute, ~torn~y fees and costs aa permittod by statute alon~ with $5,000.00 for anxiety, harna*m*qt aha intimidation direoted st her. Dated: 8/27/03 'Dea~mt Lynn Smi~ -- Attorney for 76 C~-~m,~.t D~.ve ~ P~-~-!. 17025 T~ 717-732-3750 F~ 717-~8-~98 Direct Line: $41-955~7800 Main Line: (209) 858-0600 . .~ to~.orm~. *ou pt'e~ouzly annt to y~u by yomr kmlcr, our c§cn~. 'and by DCS it should bc obv'~ ~t ~ F~ ~t ~ ·. tmplcmcntedstrm~mcasm~torccov~titcirdefaultcdCmarantc~Stsdcnt Loan (GSL)moa~,o~way~r th~ ol~r.'.S~v~d of the m~mm:syouamor~mybeanbjectlosr~asfollows: .... :. ?.-,. . .- · ': A~nati~n~c~ditburcauz~reno~ed~fy~usdefau~ta~dt~inf~ma~nwi~v~"~"~t~f~~ · Your ~m= and social s~'~riiy w..~= =e submit~i ~muslly to tl~ US Dq~,~ of Tmasu~ lo offs=t, any .ps?~ ~ s~es, ihesu~e~xbo~dis~tm~z=d, towllt~holdany~xmfunddu~oussw~ll.. ' -.. . ~ ~ U~. D~p~ h..~ of P~-,~gon is, ~s an ~a~;~;le, ~'~fly sddinE 2~% of the tolal b~!s~ce ss ~llecii~m cosis notification to dcfanltcd bon'ow~s ofm int~xt to ga~;~h md the right to request an a,:m:,,~rative hearing in order to cont~t · A law has been passed wlfich eliminated ~e statote of lin~t~ions as a defense to repaying a guaranteed student loan. · L~ws ~suicfing tl~ disc~flity through b~t~uptcy of gtmrantcod studcut loans ~e ~ co~'tcd. Du~ to. the s~.. ~.of*?? ...m~.., wc ar~ allowing dcfanlted bmTow~rs a chanco to embtish a s~isfactoryrcpaym~t schedule so they rexcrre~ to us. This is an a~mpt to collect a debt by a debt collector, and any information obtained will be used for that purpose. Contact ~our DOS Af~cotmt P~'pxY$c~ltatJvc, Hal Cox. at SEE THE REVERSE SIDE FOR 'l'ltl~ FF. DF. gAL VALIDATION NOTICE AND OTHER STATE COMPLIANCE INFORbfATION. TO: Diversified Collection Services, Inc~ P.O. Box 5700, San Leandro, CA 94577-0757 Home Telephone Work. Telephone ( ) File #7-55118633 PAULALMUMBAUER 1822.E. TREMONT ST AT.T.'A~'TOT~'~ PA 18109-1681 Claim of: American Education Services (AES) Acct No: 90007700751 Amo6nt: S19106.16 As ~f: September 18, 2003 ' I nm ~ncl~s~ng payment of $ ':=' -~ ;~: .. ,...,- 3:":-:~ ,,,: ........ . · ..: .:'... ,.- . ..... · .... ... . - ............. ........ · ...~ -..~...., ~ .~i~-~ ........ .. ~-~ ~.~;~-=~ -~'.=., "~- ' -.' =' DET~ca ~5~.~SE WIT. ~~ ~'SA~-~-~~~ . - NO~CA~ON ~ yon ~ aw~e by now~ Div~ CoH~on S~~ ~ ~ ~) ~ r~pons~le for eoH~on of your d~anlt~ s~t lo~n~oun~s) ~d we ~ ~g ~ step ~ ~n~ n~e yon to m~, o~ ~f~ ~e not ~y av~l~ we sn~t ~at yon con~ ~ mp y~ b~ t~pay~dbt O~ ~ ~ O ~O~ ~ · : .,. '- - .::3 ~ , .' ~ we do not h~ from yo~ by Aunt ~9, 2003, we w~ have no al~ma~e but ~ phone ~ ~m~ate r~oin~on to ~ mawr. ~ ~ .~n4 ~nt we a~ ~ff~ ~ us% ~d we ~d to ~ ~ a~p~ m~s at our eo~d ~ eoH~ d~ wM~ have ~ ~ ~ ns. ~N N ~ a~pt to ~H~ a debt by a d~t coheir, ~d any ~om~on ob~n~ ~ be ns~ for ~at Diversified Collection Services, Inc. P.O. Box 5700, 555 McCormick St San Leand~o, CA 94577-0757 Direct Une 209-~58-3700 Main. Line (800) 927-7667 ......... Enclo~u-~: S el f-Addressed Envelope SEE 'l'H ~: REVEHSE SIDE FOR '1'- ~; FEDERAL VALIDATION NOTICE AND OT~ ~.R REQUIRED STATE COMPLIANCE ]INFORMATION.. MEDIA RECEIVED SEP 0 8 ?.003 DGS IH , TO: FEROZE WAHEED, BRUCE MACKINLEY FROM: BETSY FRANKLIN RE: STATE LAW COMPLIANCE ISSUES - ADADS DATE: November 27, 2002 ' I have completed a review of state and federal laws concerning use of Automatic Dialing and Announcing Devices (ADADS) In order to ensure DCS Is compliant with all applicable laws and regulations.. The premise on which my review was based was that DCS employs ADADS with the 'announcing" feature In at least some of our Calls, e.g., for federal due diligence. Thls memo does not cover ADAD calls which may be regulated under state debt collection laws generallV covering phone calls, whlch wlll be covered In a separate memo. On revlew, It appears there are several categories of Issues with which we should be concerned. I will review them In this memo, and I have also attached a copy of my summary of the laws for your reference. 1. Federal text requirements: The message must Identlfy the caller at the beglnnlng of the message and provlde a phone number to a live person or address at the end of the message. FDCPA requirements: message must not disclose the fact that communlcatlon Involves collection of a debt. 2. "Disconnect" requirements: most states having ADAD- speclflc laws require that the call disconnect irnmedlately or wltl~ln 5-30 seconds after the customer terminates the call. 3. Hours of use. Many states prohibit use of ADADS between 9 p.m. and 9 a.m. 4. Repeated calls. IOwa prohibits repeated, anonymous calls. 5. Registration. Louisiana, New Hampshire and Texas require that users of ADADs be registered with the 6. "Live operator' requirement. Minnesota and NOfl:h Carolina prohibit the use of a recorded message using an ADAD unless It Is Immediately preceded by a alive operator who discloses prior to the message the name of the collection agency and the fact that the message Intends to sollclt payment and the operator obtains the consent of the debtor to hearing the message.