HomeMy WebLinkAbout07-7403p7_ ?7q d3
eivit -F,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Cathy Hornbaker
Sharon Road
Enola, PA 17025
Stokes & Clinton, P.C.
1000 Downtowner Blvd.
Mobile, AL 36691
Plaintiff(s) & Addresses
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
d
4 4
Signature of Attorney
Dated: 12/6/07
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. (AA" k)=
r thonotary
Dated: gk7lol f By: Y---'wbw- Z. 6* .
Deput
C? ? :?
?
J ?
'?';
'?t? ?
-..,
C? ti?
--1
?
O `? ?
?
v ? ? ? ??
A? ? ?.
Zy 1
? ??;
c? 4 .
_??? ? ? ,
?
t
w
Cathy Hornbaker,
Plaintiff,
V.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Civil Action No.:07-7403
JURY TRIAL DEMANDED
Stokes & Clinton, P.C., debt collection
attorneys, and Benjamin Franklin Stokes, III,
an individual, James Paul Clinton
an individual debt collection attorney, and
Michael J. McDaniel, an individual debt
collector,
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 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
32 S. Bedford Street, Carlisle, PA
1-800-990-9108, 717-249-3166
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 c 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 cuaiquier 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 ABOGAD00 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.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Cathy Hornbaker, Civil Action No.:07-7403
Plaintiff,
V. JURY TRIAL DEMANDED
Stokes & Clinton, P.C., debt collection
attorneys, and Benjamin Franklin Stokes, III,
an individual, James Paul Clinton
an individual debt collection attorney, and
Michael J. McDaniel, an individual debt
collector, ;
Defendants.
COMPLAINT
Plaintiff is an individual, residing in the Commonwealth of Pennsylvania, and consumer
pursuant to 15 U.S.C. § 1692a(3).
2
3
4.
5.
6
7
8.
Defendant Stokes & Clinton are attorney debt collectors, engaged in the business of
collecting consumer debts in this Commonwealth with its principal place of business
located at P. O. Box 991801, Mobile, Alabama, 36691-8801.
Defendant Benjamin Franklin Stokes, III, is an individual debt collection attorney,
engaged in the business of collecting consumer debts in this Commonwealth with its
principal place of business located at P. O. Box 991801, Mobile, Alabama, 36691-8801.
Defendant James Paul Clinton, is an individual debt collection attorney, engaged in the
business of collecting consumer debts in this Commonwealth with its principal place of
business located at P. O. Box 991801, Mobile, Alabama, 36691-8801.
Defendant Michael J. McDaniel, is an individual debt collector, engaged in the business
of collecting consumer debts in this Commonwealth with its principal place of business
located at P. O. Box 991801, Mobile, Alabama, 36691-8801.
On or about November and December, 2007, Defendants contacted Plaintiff by U.S. Mail
and/or telephone calls in an attempt to collect an alleged consumer debt.
Defendants are debt collectors as defined by the state law and the FDCPA. 15 U.S.C.
I I692a(6).
Defendants sent letters and/or made telephone calls to Plaintiff as stated herein, which are
"communications" relating to a "debt" as defined by 15 U.S.C. 11692a(2).
9. At all pertinent 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.")
10. 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 plaintiffs alleged debt.
11. 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.
12. Defendants contacted Plaintiff by telephone on November 17, 2007, November 18, 2007,
November 19, 2007, November 21, 2007, November 23, 2007 and November 28, 2007,
after which, Plaintiff advised the defendant that she disputed the alleged debt and
informed Plaintiff that she would obtain an attorney.
13. The Defendants, by and through their agents, responded by telling Plaintiff, "We have 4
attorneys in this office, ready to sue you... just tell your attorney to send a check for
$493.47."
14. At no time did the agents inform Plaintiff as to how to dispute the alleged debt in writing.
15. On or about November 14, 2007, Defendants sent, via U.S. Mail, a dunning letter, that
stated, "Please contact our office at the address listed below or telephone number."
Plaintiff understood this to be an invitation for her to contact an attorney at the Defendant
law firm.
16. The letter further stated, "At this time, no attorney with this firm has personally reviewed
the particular circumstances of your account. However, an attorney will personally
review your account if it is deemed necessary by this law firm or our client, or if you
request that we do so."
17. The letter further stated, "Federal law requires us to advise you as follows... If you do not
dispute this debt or any portion of it within 30 days after you receive this notice, we will
assume that it is valid."
18. Plaintiff understood the letter to mean that she had 30 days before an attorney would take
action against her, based on the content of the letter.
19. Plaintiff sought legal counsel, afraid that an attorney would soon be taking legal action
against her.
20. Plaintiff believes and therefore avers that the had a duty and responsibility to review the
account at a minimum, to determine whether any action could be taken against her,
whether Defendants were in compliance with Pennsylvania law, whether Defendants
were in compliance with the Rules of Professional Conduct and whether the debt was
within the statute of limitations.
21. Plaintiff believes and therefore avers that the had a duty and responsibility to review the
account at a minimum, before making any telephone calls.
22. At all times pertinent hereto, Plaintiff received the telephone calls BEFORE the letter
arrived in the mail.
23. Plaintiff believes and therefore avers that Defendants uses their position and title as
attorneys in order to add heightened urgency and intimidation to its collection practices.
24. At all times pertinent hereto, the principals of respondent superior apply to this action.
25. At all times pertinent hereto, the Defendants were acting in cooperation, in concert and/or
otherwise acting within the scope of such agency and/or representative capacity such that,
joint and several liability applies to this action.
26. Plaintiff believes and therefore avers that Defendants use their attorney status to make
false, misleading and/or deceptive representation and/or implications that litigation is
imminent, possible and/or likely.
27. Plaintiff believes and therefore avers that the content of this letter falsely implied that
there was some action that could be taken by the Defendants when in fact, no action could
be taken.
28. The alleged debt is in dispute and as such, litigation cannot commence.
29. The Defendants are not licensed to practice law in Pennsylvania and cannot take any
action against the Plaintiff.
30. Plaintiff believes and therefore avers that the Defendant attorneys, never review any
consumer account, thus making their letters false, deceptive, misleading and confusing.
31. Plaintiff believes that Defendants' letters, in their totality, are designed to deceive and
mislead the consumer into believing that an attorney could and in fact, would take legal
action against him/her.
32. At all times pertinent hereto, despite the content of the letter, Plaintiff believed that legal
action could be taken against her, as such, she sought out the advice of an attorney.
33. Plaintiff believes and therefore avers that an attorney cannot use false, misleading and/or
deceptive language in order to resurrect a stale debt and add interest, fees and costs.
34. Plaintiff believe and therefore avers that defendants' letters contain false, misleading and
deceptive language.
35. Consumers are hurt by these tactics.
COUNT I - PENNSYLVANIA FAIR CREDIT EXTENSION UNIFORMITY ACT
36. Plaintiff hereby incorporates the foregoing as if fully stated herein.
37. Jurisdiction for this Action is asserted pursuant to the Pennsylvania Fair Credit Extension
Uniformity Act, 73 P.S. §2270 et seq.
38. Violating provisions of the Fair Debt Collection Practices Act also violate the
Pennsylvania FCEU, 73 P.S. §2270.4(a).
39. 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. §201-2(4).
40. 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.
41. 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 requests that this Honorable Court issue judgment on
Plaintiff's 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
42. Plaintiff hereby incorporates the forgoing as if fully set forth herein.
43. Jurisdiction for this action is asserted pursuant to the Pennsylvania Unfair Trade Practices
and Consumer Protection Law, 73 P.S. §201-1 et seq.
44. That Defendants failed to have proper assignment of the alleged debt, in violation of 18
Pa.C.S. §731 la (1) through (3), as such, violated this Act and the FDCPA.
45. That Defendants engaged in unfair methods of competition and unfair or deceptive acts or
practices, as defined by UTPCPL.
46. 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 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
47. Plaintiff hereby incorporates the foregoing as if fully set forth herein.
48. 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.
49. Venue lies in this District pursuant to 28 U.S.C. 1391(b).
50. The FDCPA states that a violation of state law is a violation of the FDCPA. 15 U.S.C.
§1692n.
51. Plaintiff believes and therefore avers that defendant does not have proper assignment of
the claim, and is therefore, unable to collect the alleged debt pursuant to 18 Pa.C.S.
§731 l (a)(1) and (2).
52. Plaintiff believes and therefore avers that defendant does not have proper assignments
and/or documentation permitting said defendants to charge interest, fees and/or costs. 18
Pa.C.S. §73112(b)(1).
53. The FDCPA states that a violation of state law is a violation of the FDCPA. 15 U.S.C.
§ 1692n. Defendant violated this section of the FDCPA.
54. Plaintiff believes and therefore avers that defendant added interest, fees and costs in
violation of state and federal law.
55. Defendant in its collection efforts, demanded interest, fees and/or costs in violation of the
FDCPA, 15 U.S.C. §1692f(l) and 1692e(2)A and B.
56. There was never an express agreement by Plaintiff to pay any additional fees, cost or
interest to Defendant or any of its agents.
57. 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. Defendant violated this section
of the FDCPA.
58. The Defendants violated 15 U.S.C. § 1692e(2)(A). (5) and (10) by misrepresenting the
imminence of legal action by Defendants.
59. The Defendants violated 15 U.S.C. § 1692e(3) by misrepresenting that an attorney was
involved in the collection of the alleged debt.
60. The Defendants violated 15 U.S.C. § 1692c by contacting the Plaintiff after the Plaintiff
had requested the Defendants cease communication with the Plaintiff.
61. The Defendants violated 15 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.
62. Defendants violated 15 U.S.C. § 1692g by demanding payment without providing the
proper consumer warnings, thus, defendants overshadowed the FDCPA.
63. Defendants violated 15 U.S.C. §1692f, by attempting to collect a time barred debt.
64. Defendants violated 15 U.S.C. § 1692f, by threatening and/or filing suit without proper
legal authority in Pennsylvania.
65. Defendants violated 15 U.S.C. § 1692d(2) by using profane and abusive language towards
the consumer.
66. Defendants violated 15 U.S.C. §1692d(5) by causing the phone to ring and engaging the
consumer in repeated conversations.
67. Defendants violated 15 U.S.C. §1692d(6) by making telephone calls without disclosing
his/her identity.
68. 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. Defendant violated this section of the FDCPA.
69. The FDCPA provides certain rights to the consumer regarding her right to dispute the
alleged debt, 15 U.S.C. § 1692g. Defendant violated this section of the FDCPA.
70. Defendants violated 15 U.S.C. §1692e(5) and (10) by threatening to take action that they
never intended to take or that they could not legally take against Plaintiff.
71. 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.
72. At all times pertinent hereto, the conduct of defendant 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.
73. The above mentioned acts with supporting cases demonstrates that the conduct of
defendants rises to the level needed for punitive damages.
74. Defendant, in its collection efforts, violated the FDCPA, inter alia, Sections 1692, b, c, d,
e, f, g, h, and/or n.
75. Defendant, in its collection efforts, used false or deceptive acts and intended to oppress
and harass plaintiff.
76. 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
for Plaintiff 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.
(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 at a
rate of $450.00/hour for hours reasonably expended Plaintiff's 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 IV - CLASS ACTION
77. Plaintiff hereby incorporates the foregoing as if fully set forth herein.
78. The FDCPA also permits class action, 15 U.S.C. §1692k(a)(2)(B).
79. The Plaintiff filed suit against Defendants for violations of the FDCPA in part, because
the practice of law is regulated by each individual state and/or Commonwealth and the
Defendants are not licensed to practice law in Pennsylvania.
80. The Plaintiff filed suit against Defendants because they should have known that the
Plaintiff would have misrepresented their role in the collection of the alleged debt and
therefore had a duty to correct the misunderstanding of the Plaintiff. (Rule of Professional
Conduct 4.3, in both Pennsylvania and Defendants' home state, Alabama.)
81. That Defendants intended for all consumers to become intimidated and mislead by the
attorney letters.
82. The Plaintiff seeks a declaration that it is a routine and common business practice for the
Defendants to violated state and federal law, in that Defendants:
a. Do not have a valid assignment and therefore, legal authority to collect the alleged
debt, pursuant to 18 Pa.C.S. §7311, and 15 U.S.C. §1692n.
b. Violated 15 U.S.C. §1692c(3) by falsely representing or implying that any
individual is an attorney or that any communication is from an attorney.
d. Violated 15 U.S.C. § 1692d, by sending attorney letters as such conduct would
naturally harass and/or oppress the Plaintiff and/or the consumer.
e. Violated 15 U.S.C. §1692e(5) by sending attorney letters which inherently
threatened to take any action that cannot be legally taken or that is not intended to
be taken.
f. Violated 15 U.S.C. § 1692e(5) by sending attorney letters in order to collect a
disputed debt.
g. Violated 15 U.S.C. § 1692e(5) and (10) by sending attorney letters which
inherently misrepresent the imminence of legal action by Defendants.
h. Violated 15 U.S.C. §1692e(9) by sending attorney letters that create a false
impression as to their source, authorization and or approval.
1. Violated 15 U.S.C. §1692e(10) by sending attorney letters which used false and/or
deceptive means in order to collection the alleged debt.
j. Violated 15 U.S.C. §1692f, by threatening and/or filing suit without proper legal
authority in Pennsylvania.
k. Violated 15 U.S.C. § 1692f, by attempting to collect a time barred debt.
Violated 15 U.S.C. §1692g, by using attorney letterhead in order to add
heightened urgency to the collection process, including using multiple attorneys to
send collection/dunning letters.
in. Violated 15 U.S.C. §1692j, by furnishing a deceptive form since no attorney was
involved, the use of attorney letterhead was false, deceptive, confusing and
misleading.
83. The Class consists of all persons in the Commonwealth of Pennsylvania who received
similar debt collection contacts by the Defendants.
84. Plaintiffs claims are typical of the claims of the Class.
85. It is unknown how many contacts were made by the Defendants, as such, Plaintiff
believes and therefore avers that the number exceeds 100 persons.
86. Common relief is therefore sought on behalf of all members of the Class.
87. This Class Action is superior to other available methods for the fair and efficient
adjudication of this controversy.
88. The prosecution of separate action by individual members of the class would create a risk
of inconsistent or varying adjudications with respect to the individual members of the
Class, and a risk that any adjudications with respect to the interests of the other members
of the Class would, as a practical matter, either be dispositive of the interests of other
members of the Class not party to the adjudication or substantially impair or impede their
ability to protect their interests. Defendants acted in a manner applicable to the Class as a
whole that warrants declaratory relief.
89. The Plaintiff will fairly and adequate protect and represent the interests of the Class. The
management of the Class action proposed is not extraordinarily difficult and the factual
and legal issues raised will not require extended contact with the members of the Class
because the conduct of Defendants was perpetrated on all members of the Class and will
be established by common proof.
90. Given the nature of Defendants' collection practices, it is likely that other consumers in
Pennsylvania have been harmed by these practices.
91. The law firm of Krevsky & Rosen, located at 1101 North Front Street, Harrisburg,
Pennsylvania, will enter its appearance as co-counsel to ensure that Plaintiffs counsel
will have adequate resources to represent the class.
92. This action could be handled as a no-notice class, and is superior to the alternative,
hundreds of Pennsylvania residents filing separate FDCPA actions.
93. Plaintiff respectfully requests that this Honorable Court consider the frequency and
persistence of Defendants' non-compliance, the nature of Defendants' non-compliance,
and the obvious intentional nature of the Defendants' by failing to verify whether the
collection amount is valid, as required by Pennsylvania law, failure to secure the proper
authorizations as required by Pennsylvania law and in general, attempting to deceive
Pennsylvania consumers.
94. Plaintiff respectfully requests that this Honorable Court certify the class and award such
amount for each named Plaintiff, $1,000.00, plus such amount as this Honorable Court
may allow for all other class members, without regard to a minimum of $500,000.00 or
one percent of the net worth of the debt collectors, and attorney fees of $450.00 per hour,
and costs as reasonably determined by this Honorable Court.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court
a. Certify the class,
b. Appoint Plaintiff to represent the members of the class,
c. Appoint Deanna Lynn Saracco and the law firm of Krevsky & Rosen as
counsel for the class,
d. Declare that Defendants' practices of adding unlawful collection fees
violated Pennsylvania law and the FDCPA.
e. Enter judgement in favor of Plaintiff and the Class and against
Defendants, for statutory damages, costs and reasonable attorney fees in
the amount of $450.00 per hour,
f. Grant such further relief as this Ho ab C urt deems just and proper.
Dated: l 2/21 /07 By: /s/ co
Deanna ynn Saracco, Attorney for Plaintiff
76 Greenmont Drive, Enola, PA 17025
Telephone 717-732-3750
Fax 717-728-9498
Email: SaraccoLaw@aol.com
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Cathy Hornbaker,
Plaintiff,
V.
Stokes & Clinton, P.C., debt collection
attorneys, and Benjamin Franklin Stokes, III,
an individual, James Paul Clinton
an individual debt collection attorney, and
Michael J. McDaniel, an individual debt
collector,
Defendants.
Civil Action No.:07-7403
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Complaint was served on the attorney
for defendant via U. S. Mail, on February 6, 2008, as follows:
Peggy M. Morcom
4200 Crums Mill Road
Harrisburg, PA 17112
Dated: 2/6/08
/s/Dear?na ynn ara co
c)
N
r?
r
r
`ra
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CATHY HORNBAKER, CIVIL ACTION NO.: 07-7403
Plaintiff,
vs.
Stokes & Clinton, P.C., debt collection attorneys,
And Benjamin Franklin Stokes, III, an individual,
James Paul Clinton, an individual debt collection
Attorney, and Michael J. McDaniel, an individual
Debt collector
ACCEPTANCE OF SERVICE
I accept service of the Complaint on behalf of all Defendants and certify that I am
authorized to do so.
Respectfully submitted,
MAMJ- DENNEHEY, WARNER,
COLGOGGIN
BY:?C'M -/ v I?,?/j Gt 417k
PEGGY M. MORCOM, ESQUIRE
4200 CRUMS MILL ROAD, SUITE B
HARRISBURG, PA 17112
(717)-651-3517
Attorney for Defendants
Date: March 5, 2008
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
Acceptance of Service has been served upon the following known parties and counsel of record
this -5 day of March, 2008, by:
X First Class Mail, Postage Pre-Paid
Certified Mail, Return Receipt Requested
Hand Delivery
Overnight Mail
Fax Transmission
Electronic Mail
at the following address(es) and/or number(s):
Deanna Lynn Saracco, Esquire
76 Greenmont Drive
Enola, PA 17025
Attorney for Plaintiff
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
By: / " ?' ?4.
PEGGY M. MORCOM, ESQUIRE
Attorney for Defendants
05/381686.vl
•..a
"FILED ELECTRONICALLY
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
CATHY HORNBAKER,
PLAINTIFF
V.
STOKES & CLINTON, P.C.;
BENJAMIN FRANKLIN STOKES, III;
JAMES PAUL CLINTON; AND
MICHAEL J. MCDANIEL,
CIVIL ACTION
DEFENDANTS
NOTICE OF REMOVAL
Defendants, Stokes & Clinton, P.C.; Benjamin Franklin Stokes, III; James
Paul Clinton; and Michael J. McDaniel, by and through their undersigned counsel,
Marshall, Dennehey, Warner, Coleman & Goggin, hereby move this Honorable
Court pursuant to 28 U.S.C. § 1446(b), as follows:
1. Stokes & Clinton, P.C.; Benjamin Franklin Stokes, III; James Paul
Clinton; and Michael J. McDaniel, are Defendants in an action now pending in the
Court of Common Pleas, Cumberland County, Pennsylvania, Docket No.: 07-7403
("Action").
2. Defendants were served with a copy of the Writ of Summons on or
about December 31, 2007.
3. On March 5, 2008, the undersigned filed an Acceptance of Service of
the Complaint on behalf of all defendants. A true and correct copy of the
aforesaid Complaint filed at Docket No.: 07-7403 is attached hereto as Exhibit
"A", and is incorporated herein by reference.
4. Plaintiff in the Court of Common Pleas court action is Cathy
Hornbaker.
5. Plaintiffs Action alleges violations of Fair Debt Collection Practices
Action, 15 U.S.C. § 1692, et seq.; Pennsylvania Fair Credit Extension Uniformity
Act, 73 P.S. § 2270, et seq.; Pennsylvania Unfair Trade Practices and Consumer
Protection Law, 73 P. S. § 201.1, et seq.
6. The state court action involves a question of federal law. Pursuant to
28 U.S.C. § 1441(b) "any civil action of which the District Court shall have original
jurisdiction founded on a claim or right arising under ...the laws of the United
States shall be removable."
7. Inasmuch as this case arises, in part, out of an alleged violation of
Fair Debt Collection Practices Act, this court may properly remove the state court
action based on 28 U.S.C. §1441(b).
8. Written notice of the filing of this Notice of Removal shall be given to
all parties, as required by 28 U.S.C. § 1446(d).
9. This Notice of Removal is timely, being filed within thirty (30) days
of the date of acceptance of service of the Complaint setting forth the claims for
relief upon which the action is based. 28 U.S.C. § 1446(b).
WHEREFORE, Defendants, Stokes & Clinton, P.C.; Benjamin Franklin
Stokes, III; James Paul Clinton; and Michael J. McDaniel, request that the within
action be removed from the Civil Docket of the Court of Common Pleas of
Cumberland County, to this Court for further proceedings.
Respectfully Submitted,
MARSHALL DENNEHEY WARNER
COLEMAN & GOGGIN
DATE: March 5, 2008 BY: s/Peggy M. Morcom
Peggy M. Morcom, Esquire
I.D. No.: 92463
4200 Crums Mill Road
Harrisburg, PA 17112
(717) 651-3517
pmmorcom@mdwcg.com
Attorneys for Defendants
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
document(s) has been served upon the following known counsel of record via first-
class mail, postage prepaid, this 5th day of March, 2008, as follows:
Deanna Lynn Saracco, Esquire
76 Greenmont Drive
Enola, PA 17025
Curtis L. Long, Prothonotary
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
BY: s/PeM M. Morcom
Peggy M. Morcom, Esquire
1
05/373069.0
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Cathy Hornbaker,
Plaintiff,
V.
Stokes & Clinton, P.C., debt collection
attorneys, and Benjamin Franklin Stokes, 111,
an individual, James Paul Clinton
an individual debt collection attorney, and
Michael J. McDaniel, an individual debt
collector,
Defendants.
Civil Action No.:07-7403
JURY TRIAL DEMANDED
COMPLAINT
2.
4
5
6.
7
8
Plaintiff is an individual, residing in the Commonwealth of Pennsylvania, and consumer
pursuant to 15 U.S.C. § 1692a(3).
Defendant Stokes & Clinton are attorney debt collectors, engaged in the business of
collecting consumer debts in this Commonwealth with its principal place of business
located at P. O. Box 991801, Mobile, Alabama, 36691-8801.
Defendant Benjamin Franklin Stokes, III, is an individual debt collection attorney,
engaged in the business of collecting consumer debts in this Commonwealth with its
principal place of business located at P. O. Box 991801, Mobile, Alabama, 36691-8801.
Defendant James Paul Clinton, is an individual debt collection attorney, engaged in the
business of collecting consumer debts in this Commonwealth with its principal place of
business located at P. O. Box 991801, Mobile, Alabama, 36691-8801.
Defendant Michael J. McDaniel, is an individual debt collector, engaged in the business
of collecting consumer debts in this Commonwealth with its principal place of business
located at P. O. Box 991801, Mobile, Alabama, 36691-8801.
On or about November and December, 2007, Defendants contacted Plaintiff by U.S. Mail
and/or telephone calls in an attempt to collect an alleged consumer debt.
Defendants are debt collectors as defined by the state law and the FDCPA. 15 U.S.C.
I I692a(6).
Defendants sent letters and/or made telephone calls to Plaintiff as stated herein, which are
"communications" relating to a "debt" as defined by 15 U.S.C. 11692a(2).
9. At all pertinent 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.")
10. 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.
11. 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.
12. Defendants contacted Plaintiff by telephone on November 17, 2007, November 18, 2007,
November 19, 2007, November 21, 2007, November 23, 2007 and November 28, 2007,
after which, Plaintiff advised the defendant that she disputed the alleged debt and
informed Plaintiff that she would obtain an attorney.
13. The Defendants, by and through their agents, responded by telling Plaintiff, "We have 4
attorneys in this office, ready to sue you... just tell your attorney to send a check for
$493.47."
14. At no time did the agents inform Plaintiff as to how to dispute the alleged debt in writing.
15. On or about November 14, 2007, Defendants sent, via U.S. Mail, a dunning letter, that
stated, "Please contact our office at the address listed below or telephone number."
Plaintiff understood this to be an invitation for her to contact an attorney at the Defendant
law firm.
16. The letter further stated, "At this time, no attorney with this firm has personally reviewed
the particular circumstances of your account. However, an attorney will personally
review your account if it is deemed necessary by this law firm or our client, or if you
request that we do so."
17. The letter further stated, "Federal law requires us to advise you as follows... If you do not
dispute this debt or any portion of it within 30 days after you receive this notice, we will
assume that it is valid."
18. Plaintiff understood the letter to mean that she had 30 days before an attorney would take
action against her, based on the content of the letter.
19. Plaintiff sought legal counsel, afraid that an attorney would soon be taking legal action
against her.
20. Plaintiff believes and therefore avers that the had a duty and responsibility to review the
account at a minimum, to determine whether any action could be taken against her,
whether Defendants were in compliance with Pennsylvania law, whether Defendants
were in compliance with the Rules of Professional Conduct and whether the debt was
within the statute of limitations.
21. Plaintiff believes and therefore avers that the had a duty and responsibility to review the
account at a minimum, before making any telephone calls.
22. At all times pertinent hereto, Plaintiff received the telephone calls BEFORE the letter
arrived in the mail.
23. Plaintiff believes and therefore avers that Defendants uses their position and title as
attorneys in order to add heightened urgency and intimidation to its collection practices.
24. At all times pertinent hereto, the principals of respondent superior apply to this action.
25. At all times pertinent hereto, the Defendants were acting in cooperation, in concert and/or
otherwise acting within the scope of such agency and/or representative capacity such that,
joint and several liability applies to this action.
26. Plaintiff believes and therefore avers that Defendants use their attorney status to make
false, misleading and/or deceptive representation and/or implications that litigation is
imminent, possible and/or likely.
27. Plaintiff believes and therefore avers that the content of this letter falsely implied that
there was some action that could be taken by the Defendants when in fact, no action could
be taken.
28. The alleged debt is in dispute and as such, litigation cannot commence.
29. The Defendants are not licensed to practice law in Pennsylvania and cannot take any
action against the Plaintiff.
30. Plaintiff believes and therefore avers that the Defendant attorneys, never review any
consumer account, thus making their letters false, deceptive, misleading and confusing.
31. Plaintiff believes that Defendants' letters, in their totality, are designed to deceive and
mislead the consumer into believing that an attorney could and in fact, would take legal
action against him/her.
32. At all times pertinent hereto, despite the content of the letter, Plaintiff believed that legal
action could be taken against her, as such, she sought out the advice of an attorney.
33. Plaintiff believes and therefore avers that an attorney cannot use false, misleading and/or
deceptive language in order to resurrect a stale debt and add interest, fees and costs.
34. Plaintiff believe and therefore avers that defendants' letters contain false, misleading and
deceptive language.
35. Consumers are hurt by these tactics.
COUNT I - PENNSYLVANIA FAIR CREDIT EXTENSION UNIFORMITY ACT
36. Plaintiff hereby incorporates the foregoing as if fully stated herein.
37. Jurisdiction for this Action is asserted pursuant to the Pennsylvania Fair Credit Extension
Uniformity Act, 73 P.S. §2270 et seq.
38. Violating provisions of the Fair Debt Collection Practices Act also violate the
Pennsylvania FCEU, 73 P.S. §2270.4(a).
39. 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. §201-2(4).
40. 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.
41. 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 requests that this Honorable Court issue judgment on
Plaintiff's 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
42. Plaintiff hereby incorporates the forgoing as if fully set forth herein.
43. Jurisdiction for this action is asserted pursuant to the Pennsylvania Unfair Trade Practices
and Consumer Protection Law, 73 P.S. §201-1 et seq.
44. That Defendants failed to have proper assignment of the alleged debt, in violation of 18
Pa.C.S. §7311a (1) through (3), as such, violated this Act and the FDCPA.
45. That Defendants engaged in unfair methods of competition and unfair or deceptive acts or
practices, as defined by UTPCPL.
46. 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 requests that this Honorable Court issue.judgment on
Plaintiff's 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
47. Plaintiff hereby incorporates the foregoing as if fully set forth herein.
48. 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.
49. Venue lies in this District pursuant to 28 U.S.C. 1391(b).
50. The FDCPA states that a violation of state law is a violation of the FDCPA. 15 U.S.C.
§1692n.
51. Plaintiff believes and therefore avers that defendant does not have proper assignment of
the claim, and is therefore, unable to collect the alleged debt pursuant to 18 Pa.C.S.
§7311(a)(1) and (2).
52. Plaintiff believes and therefore avers that defendant does not have proper assignments
and/or documentation permitting said defendants to charge interest, fees and/or costs. 18
Pa.C.S. §73112(b)(1).
53. The FDCPA states that a violation of state law is a violation of the FDCPA. 15 U.S.C.
§1692n. Defendant violated this section of the FDCPA.
54. Plaintiff believes and therefore avers that defendant added interest, fees and costs in
violation of state and federal law.
55. Defendant in its collection efforts, demanded interest, fees and/or costs in violation of the
FDCPA, 15 U.S.C. § 1692f(1) and 1692e(2)A and B.
56. There was never an express agreement by Plaintiff to pay any additional fees, cost or
interest to Defendant or any of its agents.
57. 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. Defendant violated this section
of the FDCPA.
58. The Defendants violated 15 U.S.C. § 1692e(2)(A), (5) and (10) by misrepresenting the
imminence of legal action by Defendants.
59. The Defendants violated 15 U.S.C. §1692e(3) by misrepresenting that an attorney was
involved in the collection of the alleged debt.
60. The Defendants violated 15 U.S.C. § 1692c by contacting the Plaintiff after the Plaintiff
had requested the Defendants cease communication with the Plaintiff.
61. The Defendants violated 15 U.S.C. §1692e(1 1) 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.
62. Defendants violated 15 U.S.C. § 16928 by demanding payment without providing the
proper consumer warnings, thus, defendants overshadowed the FDCPA.
63. Defendants violated 15 U.S.C. § 1692f, by attempting to collect a time barred debt.
64. Defendants violated 15 U.S.C. §1692f, by threatening and/or filing suit without proper
legal authority in Pennsylvania.
65. Defendants violated 15 U.S.C. §1692d(2) by using profane and abusive language towards
the consumer.
66. Defendants violated 15 U.S.C. § 1692d(5) by causing the phone to ring and engaging the
consumer in repeated conversations.
67. Defendants violated 15 U.S.C. § 1692d(6) by making telephone calls without disclosing
his/her identity.
68. 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. Defendant violated this section of the FDCPA.
69. The FDCPA provides certain rights to the consumer regarding her right to dispute the
alleged debt, 15 U.S.C. § 16928. Defendant violated this section of the FDCPA.
70. Defendants violated 15 U.S.C. §1692e(5) and (10) by threatening to take action that they
never intended to take or that they could not legally take against Plaintiff.
71. 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.
72. At all times pertinent hereto, the conduct of defendant 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.
73. The above mentioned acts with supporting cases demonstrates that the conduct of
defendants rises to the level needed for punitive damages.
74. Defendant, in its collection efforts, violated the FDCPA, inter alia, Sections 1692, b, c, d,
e, f, g, h, and/or n.
75. Defendant, in its collection efforts, used false or deceptive acts and intended to oppress
and harass plaintiff.
76. 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
for Plaintiff 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.
(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 at a
rate of $450.00/hour for hours reasonably expended Plaintiff's 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 IV - CLASS ACTION
77. Plaintiff hereby incorporates the foregoing as if fully set forth herein.
78. The FDCPA also permits class action, 15 U.S.C. § 1692k(a)(2)(B).
79. The Plaintiff filed suit against Defendants for violations of the FDCPA in part, because
the practice of law is regulated by each individual state and/or Commonwealth and the
Defendants are not licensed to practice law in Pennsylvania.
80. The Plaintiff filed suit against Defendants because they should have known that the
Plaintiff would have misrepresented their role in the collection of the alleged debt and
therefore had a duty to correct the misunderstanding of the Plaintiff. (Rule of Professional
Conduct 4.3, in both Pennsylvania and Defendants' home state, Alabama.)
81. That Defendants intended for all consumers to become intimidated and mislead by the
attorney letters.
82. The Plaintiff seeks a declaration that it is a routine and common business practice for the
Defendants to violated state and federal law, in that Defendants:
a. Do not have a valid assignment and therefore, legal authority to collect the alleged
debt, pursuant to 18 Pa.C.S. §7311, and 15 U.S.C. §1692n.
b. Violated 15 U.S.C. § 1692c(3) by falsely representing or implying that any
individual is an attorney or that any communication is from an attorney.
d. Violated 15 U.S.C. § 1692d, by sending attorney letters as such conduct would
naturally harass and/or oppress the Plaintiff and/or the consumer.
C. Violated 15 U.S.C. §1692e(5) by sending attorney letters which inherently
threatened to take any action that cannot be legally taken or that is not intended to
be taken.
f. Violated 15 U.S.C. §1692e(5) by sending attorney letters in order to collect a
disputed debt.
g. Violated 15 U.S.C. § 1692e(5) and (10) by sending attorney letters which
inherently misrepresent the imminence of legal action by Defendants.
h. Violated 15 U.S.C. § 1692e(9) by sending attorney letters that create a false
impression as to their source, authorization and or approval.
1. Violated 15 U.S.C. §1692e(10) by sending attorney letters which used false and/or
deceptive means in order to collection the alleged debt.
j. Violated 15 U.S.C. § 1692f, by threatening and/or filing suit without proper legal
authority in Pennsylvania.
k. Violated 15 U.S.C. § 1692f, by attempting to collect a time barred debt.
1. Violated 15 U.S.C. §1692g, by using attorney letterhead in order to add
heightened urgency to the collection process, including using multiple attorneys to
send collection/dunning letters.
M. Violated 15 U.S.C. § 1692j, by furnishing a deceptive form since no attorney was
involved, the use of attorney letterhead was false, deceptive, confusing and
misleading.
83. The Class consists of all persons in the Commonwealth of Pennsylvania who received
similar debt collection contacts by the Defendants.
84. Plaintiff s claims are typical of the claims of the Class.
85. It is unknown how many contacts were made by the Defendants, as such, Plaintiff
believes and therefore avers that the number exceeds 100 persons.
86. Common relief is therefore sought on behalf of all members of the Class.
87. This Class Action is superior to other available methods for the fair and efficient
adjudication of this controversy.
88. The prosecution of separate action by individual members of the class would create a risk
of inconsistent or varying adjudications with respect to the individual members of the
Class, and a risk that any adjudications with respect to the interests of the other members
of the Class would, as a practical matter, either be dispositive of the interests of other
members of the Class not party to the adjudication or substantially impair or impede their
ability to protect their interests. Defendants acted in a manner applicable to the Class as a
whole that warrants declaratory relief.
89. The Plaintiff will fairly and adequate protect and represent the interests of the Class. The
management of the Class action proposed is not extraordinarily difficult and the factual
and legal issues raised will not require extended contact with the members of the Class
because the conduct of Defendants was perpetrated on all members of the Class and will
be established by common proof.
90. Given the nature of Defendants' collection practices, it is likely that other consumers in
Pennsylvania have been harmed by these practices.
91. The law firm of Krevsky & Rosen, located at 1101 North Front Street, Harrisburg,
Pennsylvania, will enter its appearance as co-counsel to ensure that Plaintiffs counsel
will have adequate resources to represent the class.
92. This action could be handled as a no-notice class, and is superior to the alternative,
hundreds of Pennsylvania residents filing separate FDCPA actions.
93, Plaintiff respectfully requests that this Honorable Court consider the frequency and
persistence of Defendants' non-compliance, the nature of Defendants' non-compliance,
and the obvious intentional nature of the Defendants' by failing to verify whether the
collection amount is valid, as required by Pennsylvania law, failure to secure the proper
authorizations as required by Pennsylvania law and in general, attempting to deceive
Pennsylvania consumers.
94. Plaintiff respectfully requests that this Honorable Court certify the class and award such
amount for each named Plaintiff, $1,000.00, plus such amount as this Honorable Court
may allow for all other class members, without regard to a minimum of $500,000.00 or
one percent of the net worth of the debt collectors, and attorney fees of $450.00 per hour,
and costs as reasonably determined by this Honorable Court.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court
a. Certify the class,
b. Appoint Plaintiff to represent the members of the class,
c. Appoint Deanna Lynn Saracco and the law firm of Krevsky & Rosen as
counsel for the class,
d. Declare that Defendants' practices of adding unlawful collection fees
violated Pennsylvania law and the FDCPA.
e. Enter judgement in favor of Plaintiff and the Class and against
Defendants, for statutory damages, costs and reasonable attorney fees in
the amount of $450.00 per hour,
f. Grant such further relief as th' onorable Court deems just and proper.
Dated: 12/21/07 By: --Lynn Saracco
Deanna Lynn Saracco, Attorney for Plaintiff
76 Greenmont Drive, Enola, PA 17025
Telephone 717-732-3750
Fax 717-728-9498
Email: SaraccoLaw@aol.com
t5rn