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HomeMy WebLinkAbout09-0415dJ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Gary L. Jackson Plaintiff, v. Apothaker & Assoc., P.C., and : Q~' L'r5 Cl~(~~ ~ T~~~ David Apothaker, an debt collection attorney, and Professional Investment and Finances, LLC, : 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 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, 717-249-31.66 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 1a 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, VP.YA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE PUEDECONSEG[JIR ASISTENCIA LEGAL. IN THE COURT OF` COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Gary L. Jackson Plaintiff, v. Apothaker & Assoc., P.C., and David Apothaker, an debt collection attorney, and Professional Investment and Finances, LLC, Defendants. 7Zd , d ~ • '~ / 5 ~ %t 7~,,, COMPLAINT GENERAL ALLEGATIONS 2 3. 4. 5. 6 Jurisdiction for this Action is asserted under the Pennsylvania Fair Credit Extension Uniformity Act, 73 P.S. §2270 et seq. Plaintiff is a consumer located within the Commonwealth of Pennsylvania. Defendant the Apothaker & Assoc., P.C., is owned and operated by Defendant David Apothaker, both defendants sha(1 simply be referred to as the Law Firm. Defendant Law Firm are a business entity engaged in the business of collecting consumer debts in this Commonwealth with a mailing address of 1341 N. Delaware Ave, #405, Philadelphia, PA, 19125-4300. Defendant Professional Investment and Finances, LLC., is a business entity engaged in the business of collecting consumer debts in this Commonwealth with a mailing address of 2417 Welsh Road, Suite 21 #520, Philadelphia, PA 19114, and hereinafter shall be referred to as collection agency. Violating provisions of the Fair Debt Collection Practices Act also violate the Pennsylvania FCEU, 73 P.S. §2270.4(a). 7. On or about April 29, 2008, the defendant Law Firm and Collection agency filed suit against the Plaintiff for an alleged debt. 8. The Plaintiff disputed the alleged debt, in writing, in the form of preliminary objections filed June 3, 2008. 9. To date, the Defendants failed to validate, verify and/or demonstrate that the alleged debt is owed by the Plaintiff. 10. Plaintiff believes and therefor avers that the Defendants did not have proper valid assignment to collect the alleged debt. 11. Attorney Apothaker believes that he is not required to comply with 18 Pa.C.S. §7311, as it applies to collection agencies, however, Attorney Apothaker, as an attorney, has a duty and responsibility to ensure that his client has the proper legal authority to file suit, before a lawsuit is filed. 12. Plaintiff believes and therefore avers that if the Defendant collection agency did not have legal authority to bring suit against the Plaintiff, then its attorney, Defendant law firm, also does not have legal authority to act. 13. Despite receiving the preliminary objections with the dispute, the Defendants did not provide a copy of a valid contract and valid assignment. 14. Despite receiving the dispute in writing, the Defendants have yet to show that amount alleged is the correct amount owed and failed to show how the alleged debt was calculated. 15. At all times pertinent hereto, Plaintiff believed that he was dealing with an attorney who could obtain a judgment against him. 16. At all times pertinent hereto, Plaintiff misunderstood the nature of the attorney's role in the collection of the alleged debt. 17. Plaintiff believes and therefore avers that the Defendants acted in individually and in concert, willfully, knowingly, intentionally and with disregard to the rights of Plaintiff, to misrepresent to the Plaintiff that there was some action that could be taken against him. 18. At all times pertinent hereto, the principles of respondent superior apply to this action. 19. 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. 20. Plaintiff believes and therefore avers that Defendant does not have a valid assignment and is therefore, unlawfully attempting to collect an alleged debt. 21. Plaintiff believes and therefore avers that the attorney did not properly review his account before filing a lawsuit against him. 22. Plaintiff, by this writing, once again requests validation of the alleged debt. 23. Plaintiff believes and therefore avers that Defendant violated federal and state laws as well as the Rules of Professional Conduct. COUNT I -PENNSYLVANIA FAIR CREDIT EXTENSION UNIFORMITY ACT 73 P.S X2270 et sect 24. Plaintiff hereby incorporates the foregoing as if fully set forth herein. 25. 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. 26. Plaintiff believes and therefore avers that Defendants violated 18 Pa.C.S. §7311(a) and (b), by not having a valid contract and written assignment for the alleged debt. 27. Plaintiff further believes that Defendants violated provisions of the Fair Debt Collection Practices Act, as alleged in the General Allegations and the other Counts of this Complaint, as such, Defendants violated the Pennsylvania FCEU, 73 P.S. §2270.4(a). 28. 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). 29. 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. 30. 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 Defendants 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 31. Plaintiff hereby incorporates the forgoing as if fully set forth herein. 32. Jurisdiction for this action is asserted pursuant to the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1 et seq. 33. That defendants engaged in unfair methods of competition and unfair or deceptive acts or practices, as defined by UTPCPL. 34. 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 PRACTICE ACT 15 U.S.C. §1692 ET SEQ. 35. 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. 36. Venue lies in this District pursuant to 28 U.S.C. 1391(b). 37. Plaintiff is an individual and consumer pursuant to 15 U.S.C. § 1692a(6). 38. Defendants are debt collectors as defined by 15 U.S.C. 11692a(3). 39. Defendants contacted Plaintiff in May 2008, which are "communications" relating to a "debt" as defined by 15 U.S.C. 11692a(2) and 1692a(5). 40. At all pertinent times hereto, the Defendants were hired to collect a debt relating to a consumer transaction. (Hereinafter the "alleged debt.") 41. 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. 42. FDCPA requires debt collectors to comply with all state laws. 15 U.S.C. ~1692n. Defendant violated Pennsylvania law states,l8 Pa.C.S. §73ll(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. 43. 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. 44. The Defendants violated 15 U.S.C. § 1692c(b) by contacting a third party. Plaintiffs husband, without the Plaintiffs prior consent. 45. The Defendants violated 15 U.S.C. § 1692e(2)(A), (5) and (10) by misrepresenting the imminence of legal action by Defendants. 46. 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 communication and in subsequent communications. 47. 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. 48. Defendants violated 15 U.S.C. § 1692g by demanding payment without providing the proper consumer warnings, thus, defendants overshadowed the FDCPA. 49. Defendants violated 15 U.S.C. § 1692f, by attempting to collect a time barred debt. 50. Defendants violated 15 U.S.C. § 1692f, by filing suit without proper legal authority over the Plaintiff. 51. 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. 52. Defendants violated the Rules of Professional Conduct as well as Pennsylvania law by failing to adequately review the contract creating the alleged debt, by failing to have a valid written assignment, by filing an unlawful suit against the Plaintiff. 53. Defendant law firm, violated the Rules of Professional Conduct by taking legal action against the Plaintiff without having jurisdiction over the Plaintiff, without providing Plaintiff with notice of exactly what alleged debt the law firm and collection agency are attempting to collect and without providing Plaintiff an opportunity to respond to the legal action taken against him. 54. Defendants violated the FDCPA by filing suit on time-barred, and more importantly, by filing suit without ever advising Plaintiff exactly what alleged debt the Defendants were attempting to collect. 55. 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. 56. 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. 57. 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. 58. 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. 59. The Defendant violated 15 U.S.C. § 1692e(2)(A), (5) and (10) by misrepresenting the legal status of the alleged debt. 60. The Defendant violated 15 U.S.C. § 1692c by contacting the Plaintiff after the Plaintiff had requested the Defendant cease communication with the Plaintiff. 61. The Defendant violated 15 U.S.C. § 1692g, by failing to give the required notices to the Plaintiff in the initial communication. 62. Plaintiff believes and therefore avers that the Defendants violated 15 U.S.C. ~ 1692e(3) and (5) because no attorney was ever going to be involved in the collection of the alleged debt and no action was ever intended to be taken by the Defendants. 63. Plaintiff believes and therefore avers that the Defendants 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. In this case, the alleged debt is time barred and no legal action could be taken. 64. Plaintiff believes and therefore avers that Defendants 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. In this case, the alleged debt is time barred and no legal action could be taken. 65. Plaintiff believes and therefore avers that the Defendants violated 15 U.S.C. § 1692g, by using attorney letterhead in order to add heightened urgency to the collection process. 66. Plaintiff believes and therefore avers that the Defendant attorneys did not afford her account individual review. Miller v. Wolpoff & Abramson, 321 F.3d 292 (2d Cir. 2003). 67. Plaintiff believes and therefore avers that Defendant Attorneys did not adhere to the requirements of their practice, in violation of the FDCPA. Crossley v. Lieberman, 868 F 2d 566 (3d Cir. 1989). 68. At all times pertinent hereto, the initial communication was the attached and did not contain the valid FDCPA notices. 69. At all times pertinent hereto, the Plaintiff was unable to dispute the alleged debt. 70. 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. 71. 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). 72. At all times pertinent times 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. 73. At all times pertinent times 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. 74. Plaintiff believes and therefore avers that the Defendant's agents made false threats of litigation. 75. Defendants' communications were intentionally confusing and deceptive, in violation of 15 LJ.S.C. §1692e(5) and (10). 76. The above mentioned acts with supporting cases demonstrates that the conduct of Defendants rise to the level needed for punitive damages. 77. Defendants, in its collection efforts, violated the FDCPA, inter alia, Sections 1692, b, c, d, e, f, g, h, and/or n. 78. Defendants, in its collection efforts, used false or deceptive acts and intended to oppress and harass plaintiff. 79. That, as a result of the wrongful tactics of Defendants as aforementioned, plaintiff has been subjected to anxiety, harassment, intimidation and annoyance for which compensation is sought. WHEREFORE, Plaintiff respectfully requests that his Honorable Court enter judgment on Plaintiffs 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. COUNT IV -CLASS ACTION 80. COUNT V -CLASS ACTION Plaintiff hereby incorporates the forgoing as if fully set forth herein. 2. Pennsylvania Rules of Civil Procedure No., 1701, permits a class action if certain criteria are met. 3. The FDCPA also permits class action, 15 U.S.C. § 1692k(a)(2)(B). 4. The Plaintiff filed suit against defendants for violations of the FDCPA, in pertinent part: a. Defendants did not have legal authority to collect the alleged debt within this Commonwealth because it does not have the proper written documentation in accordance with Pennsylvania law. b. Defendants charged interest, fees and costs in violation of state and federal law. d. Defendants its position and title as attorneys in order to add heightened urgency and intimidation to its collection practices. e. Defendants use its attorney status to make false, misleading and/or deceptive representation and/or implications that it has authority to take legal action in Pennsylvania. f. Defendants failed to make clear to the Plaintiff that it has no authority to take legal action in Pennsylvania. g. Defendants routinely file suit against Pennsylvania consumers without providing verifying the alleged debts, in order to use the legal system to harass and intimidate consumers into paying debts that may not be owed, may be time-barred or debts by which, the Defendants have absolutely no authority to collect. 5. This action seeks a declaration that the common and routine business practice of the Defendants to collect against consumers in violation of state and federal law. 6. This action seeks a declaration that the common and routine business practice of the Defendants is to make the initial communication via telephone, with numerous threats of lawsuits, without affording the consumer the opportunity to dispute the alleged debt, in accordance with the FDCPA. 7. This action seeks a declaration that the common and routine business practice of the Defendants to charge interest, fees and costs in violation of state and federal law. 8. This action seeks a declaration that the common and routine business practice of the .Defendants to use its position and title as attorneys in order to add heightened urgency and intimidation to its collection practices. 9. This action seeks a declaration that the common and routine business practice of the Defendants to use its attorney status to make false, misleading and/or deceptive representation and/or implications that it has authority to take Legal action in Pennsylvania. 10. This action seeks a declaration that the common and routine business practice of the Defendants to refuse to make clear to the consumers that it has no authority to take legal action in Pennsylvania. 11. This action seeks a declaration that the common and routine business practice of the Defendants to be misleading, confusing and/or deceptive to the least sophisticated consumer and therefore, violated the FDCPA. 12. This action seeks a declaration that Defendants' collection practices violated the FDCPA. 13. The Class consists of all persons in the Commonwealth of Pennsylvania who received similar debt collection contacts by the Defendants. 14. Plaintiff s claims are typical of the claims of the Class. 15. It is unknown how many contacts were made by the Defendants, as such, Plaintiff believes and therefore avers that the number exceeds 100 persons. 16. Common relief is therefore sought on behalf of all members of the Class. 17. This Class Action is superior to other available methods for the fair and efficient adjudication of this controversy. 18. 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. 19. 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. Plaintiff's counsel, participated as an attorney in class actions brought pursuant to the FDCPA as well as has been litigating FDCPA cases in county and federal court for 10 years. 20. Given the nature of Defendants' collection practices, it is likely that other consumers in Pennsylvania have been harmed by these practices. 21. The law firm of Krevsky & Rosen, located at 1101 North Front Street, Harrisburg, Pennsylvania, have agreed to enter its appearance as co-counsel to ensure that Plaintiff s counsel will have adequate resources to represent the class. 22. This action could be handled as a no-notice class, and is superior to the alternative, hundreds of Pennsylvania residents tiling separate FDCPA actions. 23. 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. 24. 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 wroth of the debt collector, 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 Honorable Court deems just and proper. Dated: l /26/09' By: /s/Deanna 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 f"` ~ '~ ~~ ~ w `~ ~ ~ .. : ~#