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HomeMy WebLinkAbout08-1333IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA na 0'P- / 3 3 3 C-uujl -.-,,, William Kufner RPM a/k/a Receivable Performance Mgt. Mechanicsburg, PA P. O. Box 768 Bothell, WA 98041 Plaintiffs) & Addresses I Defendant() & 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: 2/27/08 WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLA TIFF(S) HAS/ AVE COMMENCED AN ACTION AGAINST YOU. Pro onotary Dated: dk 20D r By: Deputy {..;_ ?e7 t.? c:_r ?> } ?i`7 ? --i S F v O ? ?.? ? ? _ G7 ? ? J ? -? ?f ?.,? ; .?:? William Kufner Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action No.: 08-1333 RPM a/k/a Receivable Performance Management, Defendant. Jury Trial Demanded 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 TARE 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 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 dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. ST NO TIENE ABOGADOO 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 William Kufner Civil Action No.: 08-1333 Plaintiff V. Jury Trial Demanded RPM a/k/a Receivable Performance Management, Defendant. COMPLAINT GENERAL ALLEGATIONS 1. Jurisdiction for this Action is asserted under the Pennsylvania Fair Credit Extension Uniformity Act, 73 P.S. §2270 et seq. 2. Plaintiff is a consumer located within the Commonwealth of Pennsylvania. 3. Defendant is a business entity engaged in the business of collecting consumer debts in this Commonwealth with a mailing address of P. O. Box 768, Bothell, WA 98041. 4. Violating provisions of the Fair Debt Collection Practices Act also violate the Pennsylvania FCEU, 73 P.S. §2270.4(a). 5. On or about February 6, 2008, Defendant contacted Plaintiff and by telephone. 6. Prior to that date, Defendant contacted Plaintiff and his father by telephone regarding the alleged debt. 7. Defendant discussed the alleged debt with Plaintiff's father, in an attempt to persuade Plaintiff's father to pay the alleged debt. 8. Plaintiff never received a written communication from the Defendant as such, the initial communication was made by telephone. 9. At no time during any of the conversations between Plaintiff and/or his father and the Defendant, did the Defendant advise Plaintiff of his right to dispute the alleged debt. 10. During the course of the telephone conversations, agents of the Defendants threatened to file suit against both Plaintiff and his father. It. At no time did the Plaintiff give his consent for the Defendants to discuss the alleged debt with his father. 12. Plaintiff believes and therefore avers that Defendant does not have a valid assignment and is therefore, unlawfully attempting to collect the alleged debt. 13. Plaintiff believes and therefore avers that Defendant added interest to the alleged debt, in violation of Pennsylvania law. 14. Plaintiff disputed the alleged debt. 15. Defendant threatened to sue Plaintiff and his father, despite being told that the debt was in dispute. COUNT I - PENNSYLVANIA FAIR CREDIT EXTENSION UNIFORMITY ACT 73 P S §2270 et sec. 16. Plaintiff hereby incorporates the foregoing as if fully set forth herein. 17. The FDCPA states that a violation of state law is a violation of the FDCPA. 15 U.S.C. § 1692n. Pennsylvania law applies to this Action. 18 Pa.C.S. §7311: 18. Plaintiff believes and therefore avers that Defendant violated 18 Pa. C.S. §7311. 19. Plaintiff further believes that Defendant violated provisions of the Fair Debt Collection Practices Act, as alleged in the General Allegations and Count II, as such, said violated also violate the Pennsylvania FCEU, 73 P.S. §2270.4(a). 20. That Defendant 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). 21. Defendant' acts as described herein were done with malicious, intentional, willful, reckless, negligent and wanton disregard for Plaintiffs rights with the purpose of coercing Plaintiff to pay the alleged debt. 22. As a result of the above violations, Plaintiff is entitled to statutory, actual, treble and punitive damages and attorney's fees and costs, in an amount of not less that $30,000.00. WHEREFORE, plaintiff requests that this Honorable Court issue judgment on his behalf and against Defendant for a statutory penalty, treble damages, punitive damages, attorney fees and costs pursuant to 73 P.S. §2270.5. COUNT II - FAIR DEBT COLLECTION PRACTICE ACT 15 U.S.C. §1692 ET SEQ. 23. 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. 24. Venue lies in this District pursuant to 28 U.S.C. 1391(b). 25. Plaintiff is an individual and consumer pursuant to 15 U.S.C. § 1692a(6). 26. Defendant are debt collectors as defined by 15 U.S.C. 11692a(3). 27. Defendant contacted Plaintiff during January and February 2008, which are "communications" relating to a "debt" as defined by 15 U.S.C. 11692a(2) and 1692a(5). 28. At all pertinent times hereto, the Defendant were hired to collect a debt relating to a consumer transaction. (Hereinafter the "alleged debt.") 29. 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 debt. 30. FDCPA requires debt collectors to comply with all state laws. 15 U.S.C. § 1692n. Defendant violated Pennsylvania law states, 18 Pa.C.S. §7311, as stated herein. 31. 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. 32. The Defendants violated 15 U.S.C. § 1692c(b) by contacting a third party, without the Plaintiffs prior consent. 33. The Defendants violated 15 U.S.C. § 1692e(2)(A), (5) and (10) by misrepresenting the imminence of legal action by Defendants. 34. At all times pertinent hereto, the Defendants made all contacts to the Plaintiff by telephone. 35. 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. 36. Defendants violated 15 U.S.C. § 1692g, by failing to provide the consumer with the proper validation notice within five days of the initial communication. 37. Defendants violated 15 U.S.C. §1692g by demanding payment without providing the proper consumer warnings, thus, defendants overshadowed the FDCPA. 38. Defendants violated 15 U.S.C. § 1692e(7) by implying, during the course of the conversation, that the consumer was in "trouble with the law," and/or "committed fraud." 39. Defendants violated 15 U.S.C. § 1692f, by attempting to collect a time barred debt. 40. Defendants violated 15 U.S.C. §1692f, by threatening and/or filing suit without proper legal authority in Pennsylvania. 41. Defendants violated 15 U.S.C. § 1692d(2) by using profane and abusive language towards the consumer. 42. Defendants violated 15 U.S.C. §1692d(5) by causing the phone to ring and engaging the consumer in repeated conversations. 43. Defendants violated 15 U.S.C. § 1692b(2) by communicating with third parties regarding the alleged debt, without the consent of the consumer. 44. Defendants violated 15 U.S.C. § 1692b(3) by communicating with persons other than the Plaintiff more than one time, without consent and without the consent of the Plaintiff. 45. 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) and (10). Defendant violated these sections of the FDCPA. 46. 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. § 1692£ Defendant violated this section of the FDCPA. 47. 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. Defendant violated this section of the FDCPA. 48. 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. 49. 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). Defendant violated this section of the FDCPA. 50. The Defendant violated 15 U.S.C. § 1692c(b) by contacting a third party, without the Plaintiffs prior consent. 51. The Defendant violated 15 U.S.C. § 1692e(2)(A), (5) and (10) by misrepresenting the imminence of legal action by Defendant. 52. The Defendant violated 15 U.S.C. § 1692c by contacting the Plaintiff after the Plaintiff had requested the Defendant cease communication with the Plaintiff. 53. The Defendant violated 15 U.S.C. §1692g, by failing to give the required notices to the Plaintiff in the initial communication. 54. At all times pertinent hereto, the initial communication was made by telephone. 55. At all times pertinent hereto, the Plaintiff was unable to dispute the alleged debt. 56. The FDCPA provides certain rights to the consumer regarding his/her right to dispute the alleged debt, 15 U.S.C. § 1692g. Defendant violated this section of the FDCPA. 57. The FDCPA states, a debt collector may not communicate with a consumer 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 communications. 15 U.S.C. § 1692c(a)(3). Defendant violated this section of the FDCPA. 58. The FDCPA states, it is unlawful to add interest, charges, fees or other costs unless authorized by law or contract; Plaintiff does not have a contract with Defendant. 15 U.S.C. § 1692f and § 1692e(2)(A) and (B). Defendant violated this section of the FDCPA. 59. Defendant's collection communications were intentionally confusing, misleading and otherwise deceptive to the Plaintiffs, in violation of 15 U.S.C. §1692e(5) and (10), §1692f(8) and §1692j, see also, In re Belile, 208 B.R. 658 (E.D. Pa 1977). 60. Defendant's communications created a false sense of urgency on the past of Plaintiff in violation of the FDCPA. Tolentino v. Friedman, 833 F. Supp. 697 (N.D. Ill. 1993); Sluys v. Hand, 831 F. Supp. 321 (S.D.N.Y. 1993); and Rosa v. Gaynor, 784 F. Supp 1 (D. Conn. 1989). 61. 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 Lakes Collection Bureau, 6 F.3d 62 (2d Cir. 1998). See also, 15 U.S.C. §1692e(5), 15 U.S.C. §1692e(10). 62. 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 Defendant herein. 63. 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. 64. Plaintiff believes and therefore avers that the Defendant's agents made false threats of litigation. 65. Defendant's threat of litigation was false because Defendant does not routinely file suit against consumer debtors, in violation of 15 U.S.C. § 1692e(5) and (10). 66. Defendant's letters were intentionally confusing and deceptive, in violation of 15 U.S.C. § 1692e(5) and (10). 67. Plaintiff was confused, deceived and believed that litigation was imminent if settlement was not made. 68. The above mentioned acts with supporting cases demonstrates that the conduct of Defendant rises to the level needed for punitive damages. 69. Defendant, in its collection efforts, violated the FDCPA, inter atia, Sections 1692, b, c, d, e, f, g, h, and/or n. 70. Defendant, in its collection efforts, used false or deceptive acts and intended to oppress and harass plaintiff. 71. That, as a result of the wrongful tactics of Defendant 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 Plaintiff's 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 Defendant have violated the FDCPA. (B) Award Plaintiff general damages and punitive damages for anxiety, harassment, and intimidation directed at him in an amount not less than Ten Thousand Dollars ($10,000.00), as well as the repetitive nature of Defendant form letters. C) Award Plaintiff costs of this litigation, including a reasonable attorney's fee at a rate of $450.00 per hour, for hours reasonably expended by Plaintiff's attorney in vindicating Plaintiff's 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 =ynn ity may provide. Dated:3/17/08 By: Saracco Deanna Lynn Saracco, Attorney for Plaintiff 76 Greenmont Drive, Enola, PA 17025 Telephone 717-732-3750 Fax 717-728-9498 Email: SaraccoLawgaol.com C? `-r?? ?? r-c-t ? , , rp+ M1.ry ??? _ .?? { '? IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA William Kufner Plaintiff V. Civil Action No.: 08-1333 Jury Trial Demanded RPM a/k/a Receivable Performance Management, Defendant. PRAECIPE TO DISCONTINUE/WITHDRAW WITH PREJUDICE And now comes Plaintiff, by and through his counsel, Deanna Lynn Saracco, and files this Praecipe to Withdraw the above captioned matter, with prejudice as the parties have amicably settled their dispute. This case should be discontinued and you may mark this case CLOSED. Respectfully submitted, -A:? - Dated: 4/30/08 Deanna Lynn Saracco, Attorney for Plaintiff 76 Greenmont Drive Enola, PA 17025 717-732-3750 Certificate of Service: I hereby certify that I served, via hand delivery, a copy of the forgoing, on the defendant as follows: Andrew D. Shafer SIMBURG KETTER SHEPPARD & PURDY 999 Third Avenue, Suite 2525 Seattle, WA, 98104 Dated: 4/30/08 /s/Deanna Lvnn S racco CD