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HomeMy WebLinkAbout08-1335IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA `no_ o.? - /33S ' ,<h Beverly Witmer Enola, PA 17025 American Recovery Systems, Inc. 1699 Wall Street, Suite 300 Mt. Prospect, IL 60056-5788 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 Signature of Attorney Dated: 2/27/08 WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HA /HAVE COMMENCED AN ACTION AGAINST YOU. _ .?I" ACr Pro onotary Dated: a 8, o2d7? By: Deputy C?j t a NI wU y; C r. 'z IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Beverly Witmer, Civil Action No.: 08-1335 Plaintiff V. Jury Trial Demanded American Recovery System, Inc., Defendant. 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. 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 Beverly Witmer, Civil Action No.: 08-1335 Plaintiff V. Jury Trial Demanded American Recovery System, Inc., 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. Defendant is a business entity engaged in the business of collecting consumer debts in this Commonwealth with a mailing address of 1699 Wall Street, Suite 300, Mt. Prospect, IL, 60056-5788. 3. Violating provisions of the Fair Debt Collection Practices Act also violate the Pennsylvania FCEU, 73 P.S. §2270.4(a). 4. On or about October Defendant contacted Plaintiff by telephone at her place of employment. 5. During the court of October 2007, Defendant contacted Plaintiff by telephone at her place of employment to demand payment of a debt that Plaintiff had been making payments on for several years. 6. However, according to the Defendant, the agreement was no longer valid and Plaintiff was required to pay the balance in full. 7. Plaintiff believes and therefore avers that the initial communication was by telephone. 8. Plaintiff believes and therefore avers that Defendant does not have a valid assignment and is therefore, unlawfully attempting to collect the alleged debt. 9. Plaintiff believes and therefore avers that Defendant added interest to the alleged debt, in violation of Pennsylvania law. COUNT I - PENNSYLVANIA FAIR CREDIT EXTENSION UNIFORMITY ACT 73 P.S. §2270 et seq. 10. Plaintiff hereby incorporates the foregoing as if fully set forth herein. 11. 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: 12. Plaintiff believes and therefore avers that Defendant violated 18 Pa. C.S. §7311. 13. 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 ECEU, 73 P.S. §2270.4(a). 14. 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). 15. Defendant' 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. 16. 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 It - FAIR DEBT COLLECTION PRACTICE ACT 15 U.S.C. §1692 ET SEQ. 17. 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. 18. Venue lies in this District pursuant to 28 U.S.C. 1391(b). 19. Plaintiff is an individual and consumer pursuant to 15 U.S.C. § 1692a(6). 20. Defendant are debt collectors as defined by 15 U.S.C. 11692a(3). 21. Defendant contacted Plaintiff during August, September 2007, which are "communications" relating to a "debt" as defined by 15 U.S.C. 11692a(2) and 1692a(5). 22. At all pertinent times hereto, the Defendant were hired to collect a debt relating to a consumer transaction. (Hereinafter the "alleged debt.") 23. 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. 24. 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. 25. 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. 26. The Defendants violated 15 U.S.C. § 1692c(b) by contacting a third party, without the Plaintiffs prior consent. 27. The Defendants violated 15 U.S.C. § 1692e(2)(A), (5) and (10) by misrepresenting the imminence of legal action by Defendants. 28. At all times pertinent hereto, the Defendants made all contacts to the Plaintiff by telephone. 29. 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. 30. Defendants violated 15 U.S.C. §1692f, by threatening and/or filing suit without proper legal authority in Pennsylvania. 31. Defendants violated 15 U.S.C. § 1692d(2) by using abusive language towards the consumer. 32. Defendants violated 15 U.S.C. § 1692d(5) by causing the phone to ring and engaging the consumer in repeated conversations. 33. 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. 34. 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. 35. 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. 36. 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. 37. 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. 38. The Defendant violated 15 U.S.C. § 1692e(2)(A), (5) and (10) by misrepresenting the imminence of legal action by Defendant. 39. The Defendant violated 15 U.S.C. § 1692c by contacting the Plaintiff after the Plaintiff had requested the Defendant cease communication with the Plaintiff. 40. 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. 41. 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. 42. 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). 43. Defendant's communications created a false sense of urgency on the past of Plaintiff in violation of the FDCPA. 44. 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. 45. 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. 46. Plaintiff believes and therefore avers that the Defendant's agents made false threats of litigation. 47. 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). 48. Defendant's letters were intentionally confusing and deceptive, in violation of 15 U.S.C. §1692e(5) and (10). 49. Plaintiff was confused, deceived and believed that litigation was imminent if settlement was not made. 50. The above mentioned acts with supporting cases demonstrates that the conduct of Defendant rises to the level needed for punitive damages. 51. Defendant, in its collection efforts, violated the FDCPA, inter alia, Sections 1692, b, c, d, e, f, g, h, and/or n. 52. Defendant, in its collection efforts, used false or deceptive acts and intended to oppress and harass plaintiff. 53. 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. ©) 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 or law or equity may provide. Dated:3/17/08 By: /s/ ea a nn 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 CID CJ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Beverly Witmer, Plaintiff V. American Recovery System, Inc., Defendant. Civil Action No.: 08-1335 Jury Trial Demanded PRAECIPE TO DISCONTINUE Pursuant to Pa. R.C.P. 229 WITHOUT PREJUDICE And now comes Plaintiff, by and through her counsel, Deanna Lynn Saracco, and files this Praecipe to Discontinue, without Prejudice, the above captioned matter. After further investigation, the Plaintiff believes that the issues in this case will be better served as both an individual and class action, pursuant to federal law, specifically, 15 U.S.C. §1692 et seq., known as the Fair Debt Collection Practices Act. The Defendant will not be prejudiced since the complaint will remain virtually the same and FDCPA actions are routinely pursued in federal court. This case should be discontinued and you may mark this case CLOSED. Respectfully submitted, Dated: 5/12/08 Deanna Lynn Saracco, Attorney for Plaintiff 76 Greenmont Drive, Enola, PA 17025 717-732-3750, Fax, 717-728-9498 Certificate of Service: I hereby certify that I served, via U.S. Mail, postage prepaid, to the defendant as follows: Beth Lumbeck, President American Recovery System 1699 Wall Street, Suite 300 Mt. Prospect, IL 60056 Dated: 5/12/08 , izL? Deanna Lynn Saracco C? 4= C3 C IT, n?.. M CJ? W N ? ? ?? N