HomeMy WebLinkAbout09-0417C)
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Christopher Rhoads,
Plaintiff, Civil Action No:
V. :
Law Offices of Brachfeld & Assoc. t 1l
and Erica L. Brachfeld, an individual
debt collection attorney,
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, 717-249-3166
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 UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
Christopher Rhoads, _
(Jc.?+-? /
Plaintiff, Civil Action No: 0 4 - q17
V.
Law Offices of Brachfeld & Assoc.
and Erica L. Brachfeld, an individual
debt collection attorney,
Defendants.
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 the Law Offices of Brachfeld & Associations, is owned and operated by
Defendant Erica L. Brachfeld, and hereinafter, both defendants shall simply be referred to
as Defendants.
4. Defendants are a business entity engaged in the business of collecting consumer debts in
this Commonwealth with a mailing address of 20300 S. Vermont Avenue, Suite 120,
Torrance, CA 90502.
5. Violating provisions of the Fair Debt Collection Practices Act also violate the
Pennsylvania FCEU, 73 P.S. §2270.4(a).
6. On or about November 2008, Defendants began contacting the Plaintiff by telephone and
letter in an attempt to collect an alleged debt.
7. The Defendants are not licensed to practice law in Pennsylvania.
8. The Defendants, according to their letter, a are attempting to collect an alleged debt as
well as charging interest.
9. Plaintiff, believing that the law firm was going to take action against him, contacted an
attorney and this suit resulted.
10. Plaintiff believes and therefore avers that the law firm failed in its duty to reasonably
investigate the alleged debt.
11. Defendants letter does not appropriately advise Plaintiff of his rights under the FDCPA
since the Defendant believed that an attorney was taking action against him.
12. Plaintiff believes and therefore avers that the letters and phone calls from a law firm are
an invitation to communicate and negotiate with an attorney.
13. At all times pertinent hereto, Plaintiff believed that he was dealing with an attorney who
coin I d obtain a judgment against him.
14. Plaintiff believes and therefore avers that the interests of the law firm are adverse to that
of the Plaintiff.
15. At a ! I times pertinent hereto, Plaintiff misunderstood the nature of the attorney's role in
the co I I ection of the alleged debt.
16. 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
misivpresent to the Plaintiff that there was some action that could be taken against her.
17. At al I times pertinent hereto, the principles of respondent superior apply to this action.
18. At a I l t i mes pertinent hereto, the Defendants were acting in cooperation, in concert and/or
othcr?vise acting within the scope of such agency and/or representative capacity such that,
joins and several liability applies to this action.
19. At no time during the telephone contacts did the Defendants inform Plaintiff of his rights
under the FDCPA.
20. Plaintiff believes and therefore avers that Defendants do not have a valid assignment and
is :hercFore, unlawfully attempting to collect an alleged debt.
21. Plaintiff, by this writing, requests validation of the alleged debt.
22. 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 set
23. Plaintiff hereby incorporates the foregoing as if fully set forth herein.
24. The FDCPA states that a violation of state law is a violation of the FDCPA. 15 U.S.C.
§ i 692n. Pennsylvania law applies to this Action. 18 Pa.C.S. §7311 et seq.
25. Plair! iff believes and therefore avers that Defendants violated 18 Pa.C.S. §7311(a) and
(b), bN' not having a valid contract and written assignment for the alleged debt.
26. Plaintiff further believes that Defendants violated provisions of the Fair Debt Collection
Pr..,! ices 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).
27. 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).
28. Defendants' acts as described herein were done with malicious, intentional, willful,
reckless, negligent and wanton disregard for Plaintiff s rights with the purpose of
coer:• i n Plaintiff to pay the alleged debt.
29. 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 DUrsuant to 73 P.S. §2270.5.
COUNT 11 - PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER
PROTECTION LAW
30. Plaintiff hereby incorporates the forgoing as if fully set forth herein.
31. Jurisdiction for this action is asserted pursuant to the Pennsylvania Unfair Trade Practices
and Consumer Protection Law, 73 P.S. §201-1 et seq.
32. That defendants engaged in unfair methods of competition and unfair or deceptive acts or
practices, as defined by UTPCPL.
33. 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 PRACTICE ACT
15 U.S.C. §1692 ET SEQ.
34. 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.
35. Venue lies in this District pursuant to 28 U.S.C. 1391(b).
36. Plaintiff is an individual and consumer pursuant to 15 U.S.C. §1692a(6).
37. Defendants are debt collectors as defined by 15 U.S.C. 11692a(3).
38. Defendants contacted Plaintiff in October of 2008, which are "communications" relating
to a "debt" as defined by 15 U.S.C. 11692a(2) and 1692a(5).
39. At all pertinent times hereto, the Defendants were hired to collect a debt relating to a
consumer transaction. (Hereinafter the "alleged debt.")
40. 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.
41. 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.
42. 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 :he FDCPA.
43. 1'le Defendants violated 15 U.S.C. § 1692e(2)(A), (5) and (10) by misrepresenting the
imminence of legal action by Defendants.
44. De fl,. ndants violated 15 U.S.C. § 1692g, by failing to provide the consumer with the
proper validation notice within five days of the initial communication.
45. D:;fendants violated 15 U.S.C. §1692g by demanding payment without providing the
proper consumer warnings, thus, defendants overshadowed the FDCPA.
46. Dofendants violated 15 U.S.C. § 1692f, by filing suit without proper legal authority over
the Plaintiff.
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(5) and (10). Defendant violated these sections of the FDCPA.
48. 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 failing to properly obtain a judgment against the Plaintiff.
49. 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 the Judgment and without providing Plaintiff an opportunity to
respond to the legal action taken against her.
50. threatening litigation when the threat of litigation was false, is time-barred, and more
importantly, Plaintiff does not owe the alleged debt.
51. 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 FDCPix.
52. 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.
53. 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 ol'a debt. 15 U.S.C. §1692d. Defendant violated this section of the FDCPA.
54. 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.
55. The Defe!16iit violated 15 U.S.C. § 1692e(2)(A), (5) and (10) by misrepresenting the
legal status of the alleged debt.
56. The Defendant violated 15 U.S.C. § 1692c by contacting the Plaintiff after the Plaintiff
had requested the Defendant cease communication with the Plaintiff.
57. The Defendant violated 15 U.S.C. §1692g, by failing to give the required notices to the
Plaintiff in the initial communication.
58. 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.
59. 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.
60. Plaintiff belic,,,es and therefore avers that Defendants violated 15 U.S.C. §1692e(5) by
sending attor;?ey letters which inherently threatened to take any action that cannot be
legally tal cri :)r that is not intended to be taken. In this case, the alleged debt is time
barred anti n0 legal action could be taken.
61. Plaintiff bcl icves and therefore avers that the Defendants violated 15 U.S.C. §1692g, by
using attorncv letterhead in order to add heightened urgency to the collection process.
62. Plaintiff 1,el :, yes and therefore avers that the Defendant attorneys did not afford her
account ind i \ ' dual review. Miller v. Wolpoff & Abramson, 321 F.3d 292 (2d Cir. 2003).
63. Plaintiff belicves and therefore avers that Defendant Attorneys did not adhere to the
requirem;-:?ts f their practice, in violation of the FDCPA. Crossley v. Lieberman , 868F
2d 566 (3d C_' .-. 1989).
64. At all times i -rtinent hereto, the initial communication was the attached and did not
contain the A., iid FDCPA notices.
65. At all times I ?rtinent hereto, the Plaintiff was unable to dispute the alleged debt.
66. The FDCPA provides certain rights to the consumer regarding his/her right to dispute the
alleged debt, '. 5 U.S.C. § 1692g. Defendant violated this section of the FDCPA.
67. Defendant's ? dlection communications were intentionally confusing, misleading and
otherwise deceptive to the Plaintiffs, in violation of 15 U.S.C. §1692e(5) and (10).
68. At all times p: rtinent times hereto, the Defendant was acting by and through its agents,
servants and/ ,r employees, who were acting within the scope and course of their
employment. and under the direct supervision and control of the Defendant herein.
69. At all tiro .,s rcrtinent times hereto, the conduct of Defendant as well as their agents,
servants, and' )r employees, was malicious, intentional, willful, reckless, negligent and in
wanton d i s ?-,, erd for federal and state law and the rights of the Plaintiff herein.
70. Plaintiff ? Li, ves and therefore avers that the Defendant's agents made false threats of
litigation.
71. Defendan' ?,' 11 fmmunications were intentionally confusing and deceptive, in violation of
15 U.S.C. :.)2e(5) and (10).
72. Plaintiff \ is .,onfused, deceived and believed that she would lose property or have her
wages att, .,'x 1 if settlement was not made.
73. The ahov,, :tioned acts with supporting cases demonstrates that the conduct of
Defenda r: .-s to the level needed for punitive damages.
74. Defendaw, is collection efforts, violated the FDCPA, inter alia, Sections 1692, b, c, d,
e,f,? h ?- ern.
75. Defend..,i its collection efforts, used false or deceptive acts and intended to oppress
and haras- nL intiff.
76. That, as ?; -c,. A of the wrongful tactics of Defendant as aforementioned, plaintiff has
been subjcc,, cd to anxiety, harassment, intimidation and annoyance for which
comnens?,'Ao4 ' is sought.
WHER F `y 'E, Plaintiff respectfully requests that his Honorable Court enter judgment
on Plaintiff7 s i:t.'44 ; ad against Defendant and issue an Order:
(A) Plaintiff statutory damages in the amount of One Thousand Dollars
r ' """,.00) for each violation of the FDCPA or each separate and discrete
t in which Defendant have violated the FDCPA.
(B) Plaintiff general damages and punitive damages for anxiety, harassment,
?. '? imidation directed at him in an amount not less than Ten Thousand Dollars
N ; .000.00), as well as the repetitive nature of Defendant form letters.
C) ', ~.; Plaintiff costs of this litigation, including a reasonable attorney's fee at a
$450.00 per hour, for hours reasonably expended by Plaintiff's attorney in
Ming Plaintiff's rights under the FDCPA, permitted by 15 U.S.C.
_' <(a)(3).
(D) declaratory and injunctive relief, and such other relief as this Honorable
.eerns necessary and proper or law or equity may provide.
'A A
Dated: 1/26/09' By: /s a 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
ti
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Christopher Rhoads,
Plaintiff, Civil Action No: 0'7-417
V.
Law Offices of Brachfeld & Assoc.
and Erica L. Brachfeld, an individual
debt collection attorney,
Defendants.
Praecipe to Discontinue/Withdraw With Prejudice
AND NOW, comes, Plaintiff, by and through his counsel, and files this Praecipe to
Discontinue/Withdraw the above captioned case(s) with prejudice, pursuant to P.R.C.P. 229(a),
as the parties have amicable resolved their dispute. This case may be discontinued and the
docket may be marked CLOSED
Dated:517?0 I By: AiLkynn Saracco
Deanna Lynn Saracco, Attorney for Plaintiff
76 Greenmont Dr., Enola, PA 17025
Telephone 717-732-3750
Email SaraccoLaw?t',)aol.com
Certificate of Service:
I hereby certify that a true and correct copy of the forgoing was served on attorney for
defendant via U.S. First Class mail as follows:
Adrian White
Franzen and Salzano, P.C.
40 Technology Parkway South, Suite 202
Norcross, GA 30092
Dated: By:
Deanna Lynn Saracco
A ffiCE
OF THE PF?C!THONO 'ARY
2009 MAY -7 PM 2: L, 8
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