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Home My WebLink About08-2344Richard Kistler, III, Plaintiff. V. National Enterprise Systems, Inc., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action No 8?j- ' ;--3 q -/ ca,r ( 4-e-rk 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 torte. 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 torte 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 notification y por cualquier queja o alivio que es pedido en la petition de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABCGADO 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 Richard Kistler, III, Plaintiff, V. Civil Action No.: C)?.- )-3 Y Y <<ui e?h National Enterprise Systems, Inc., Defendants. COMPLAINT GENERAL ALLEGATIONS l . 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 National Enterprise Systems, Inc., is a business entity engaged in the business of collecting consumer debts in this Commonwealth with a mailing address of 29125 Solon Road, Solon, OH, 44139. 4. On or about March and April 2008, Defendant contacted Plaintiff by telephone, at home and place of employment. 5. On or about March and April 2008, Defendant contacted Plaintiff's father and discussed the alleged debt, in detail, with the Plaintiff's father. 6. Plaintiff never gave Defendant permission to discuss the alleged debt with his father. 7. Defendant contacted Plaintiff at his proper telephone number, as such, there was no reason for the Defendant to call Plaintiffs father. 8. During the course of the conversations between Defendant and the Plaintiff and Plaintiff's father, the Defendant's agents threatened to sue the Plaintiff. 9. Plaintiff believes and therefore avers that the initial communication was by telephone. 10. At no time during the telephone contacts did the Defendants inform Plaintiff of her rights under the FDCPA. 11. Plaintiff believes and therefore avers that Defendant does not have a valid assignment and is therefore, unlawfully attempting to collect the alleged debt. 12. Plaintiff believes and therefore avers that the Defendants failed to review the contract creating the alleged debt. 13. Plaintiff believes and therefore avers that Defendant violated federal and state laws. COUNT I - PENNSYLVANIA FAIR CREDIT EXTENSION UNIFORMITY ACT 73 P.S. 2270 et se . 14. Plaintiff hereby incorporates the foregoing as if fully set forth herein. 15. 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 et seq. 16. Plaintiff believes and therefore avers that Defendant violated 18 Pa.C.S. §7311(a) and (b), by not having a valid contract and written assignment for the alleged debt. IT Plaintiff further believes that Defendant violated provisions of the Fair Debt Collection Practices Act, as alleged in the General Allegations and the other Counts of this Complaint, as such, Defendant violated the Pennsylvania FCEU, 73 P.S. §2270.4(a). 18. 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). 19. Defendant's 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. 20. 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 - PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 21. Plaintiff hereby incorporates the forgoing as if fully set forth herein. 22. Jurisdiction for this action is asserted pursuant to the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1 et seq. 23. That defendant engaged in unfair methods of competition and unfair or deceptive acts or practices, as defined by UTPCPL. 24. As a result of the above violations, Plaintiff is entitled to statutory, actual, treble and punitive damages and attorney's fees and costs. WHEREFORE, plaintiff requests that this Honorable Court issue judgment on Plaintiffs behalf and against defendant for a statutory penalty, treble damages, punitive damages, attorney fees and costs pursuant to 73 P.S. §201-902. COUNT III - FAIR DEBT COLLECTION PRACTICE ACT 15 U.S.C. &1692 ET SEO 25. 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. 26. Venue lies in this District pursuant to 28 U.S.C. 1391(b). 27. Plaintiff is an individual and consumer pursuant to 15 U.S.C. § 1692a(6). 28. Defendant is a debt collector as defined by 15 U.S.C. 1 1692a(3). 29. Defendants contacted Plaintiff from March 2008 through April 2008, which are "communications" relating to a "debt" as defined by 15 U.S.C. 11692a(2) and 1692a(5). 30. At all pertinent times hereto, the Defendant was hired to collect a debt relating to a consumer transaction. (Hereinafter the "alleged debt.") 31. 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 plaintiffs alleged debt. 32. 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(a) and (b) for failing to properly review the contract creating the alleged debt and for failure to have a valid assignment of the alleged debt. 33. 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. A The Defendants violated 15 U.S.C. § 1692c(b) by contacting a third party, without the Plaintiffs prior consent. 35. The Defendants violated 15 U.S.C. § 1692e(2)(A), (5) and (10) by misrepresenting the imminence of legal action by Defendants. 36. At all times pertinent hereto, the Defendants made all contacts to the Plaintiff by telephone. 37. 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. 38. 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. 39. Defendants violated 15 U.S.C. § 1692g by demanding payment without providing the proper consumer warnings, thus, defendants overshadowed the FDCPA. 40. 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." 41. Defendants violated 15 U.S.C. § 1692f, by threatening and/or filing suit without proper legal authority in Pennsylvania. 42. Defendants violated 15 U.S.C. § 1692d(2) by using profane and abusive language towards the Plaintiff and his father. 43. Defendants violated 15 U.S.C. § 1692d(5) by causing the phone to ring and engaging the consumer in repeated conversations. 44. Defendants violated 15 U.S.C. § 1692b(2) by communicating with third parties regarding the alleged debt, without the consent of the consumer. 45. 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. 46. 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 FDC PA. 47. 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. • 48. The FDCPA states, a debt collector may not use false, deceptive or misleading representation or means in connection with the collection of any debt. 15 U.S.C. § 1692e. Defendant violated this section of the FDCPA. 49. 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. 50. 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. 51. The Defendant violated 15 U.S.C. § 1692c(b) by contacting a third party, without the Plaintiffs prior consent. 52. The Defendant violated 15 U.S.C. § 1692e(2)(A), (5) and (10) by misrepresenting the imminence of legal action by Defendant. 53. The Defendant violated 15 U.S.C. § 1692c by contacting the Plaintiff after the Plaintiff had requested the Defendant cease communication with the Plaintiff. 54. The Defendant violated 15 U.S.C. § 1692g, by failing to give the required notices to the Plaintiff in the initial communication. 55. At all times pertinent hereto, the initial communication was made by telephone. 56. At all times pertinent hereto, the Plaintiff was unable to dispute the alleged debt. 57. 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. 58. 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. 59. The FDCPA states, it is unlawful to misrepresent the legal status of an allege debt, 15 U.S.C. § 1692f and § 1692e(2)(A). Defendant violated this section of the FDCPA. 60. 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). 61. Defendant's communications created a false sense of urgency on the past of Plaintiff in violation of the FDCPA. 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. Defendants' communications 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 alia, 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 Plaintiff in an amount not less than Ten Thousand Dollars ($10,000.00), as well as the repetitive nature of Defendant form letters. (0) 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 e may rovide. Dated:4/14/08 By: /s/Deann co Deanna Lynn aracco, Attorney for Plaintiff 76 Greenmont Drive, Enola, PA 17025 Telephone 717-732-3750 Fax 717-728-9498 Email: SaraccoLaw@aol.com C> n,a ? ? c?_' c..a --? '?°' ?3" ' i::: i ? i ?-. "?'? _ 1 ? t ? 4V '.. _? v` ?i?.r r V (? y ? ? ?` _^ ? l h v ^ \' n n Q Deanna Lynn Saracco Attorney for Plaintiff 76 Greenmont Drive Enola, PA 17025 717-732-3750 Richard Kistler, III, Plaintiff, V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA National Enterprise Systems, Inc., Defendants. Civil Action No.: 08-2344 Civil Term 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, AiA?: Dated: 6/23/08 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: Jeffrey C. Turner, Esquire Surdyk, Dowd & Turner Co., L.P.A. Kettering Tower, Suite 1610 40 North Main Street Dayton, OH 45423 Dated: 6/23/08 By: /s/ eann ynn Saracco ' S MF