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HomeMy WebLinkAbout09-0421°~ Timothy Bowshot, IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNT(Y, PENNSYLVANIA v Civil Action No.: Q%' ` ~/ ~~ Vl ~ ~' ` ~~ Remit Corporation and, Unifund CCR Partners, 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 torte. Si usted quire defenderse de estas demandas expuetas en las paginas siquientes, usted time viente (20) dias de plazo al partir de la fecha de la excrita o en persona e por abogado y archivar en la torte en forma excrita sus defensas o sus objectiones a las demande, la torte 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 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 Timothy Bowshot, Plaintiff, v. Remit Corporation and, Unifund CCR Partners, Defendants. 2. 3 4 5 6. 7. 8. 9 Civil Action No.: !~ 9- ya/ l...Lvr./ ~~-~^*'" COMPLAINT GENERAL ALLEGATIONS Jurisdiction for this Action is asserted under the Pennsylvania Fair Credit Extension Uniformity Act, 73 P.S. X2270 et seq. Plaintiff is a consumer located within the Commonwealth of Pennsylvania. Defendant Remit Corporation is a debt collectors/business entity engaged in the business of collecting consumer debts in this Commonwealth with a mailing address of 36 West Main Street, Bloomsburg, PA 17815. Defendant Unifund CCR Partners, engaged in the business of collecting consumer debts in this Commonwealth, as well as hiring attorneys to collect debts, with a mailing address of 10625 Techwoods Circle, Cincinnati, OH 45242. Violating provisions of the Fair Debt Collection Practices Act also violate the Pennsylvania FCEU, 73 P.S. §2270.4(a). On or about January 29, 2008, Defendants contacted Plaintiff by service o f a Complaint. On or about February 1, 2008, Plaintiff disputed the alleged debt, in writing, and to date, the Defendants did not validate the alleged debt pursuant to the FDCPA. At no time did the Defendants comply with the FDCPA. The Defendants withdrew the lawsuit in April of 2008, without ever validating the alleged debt. 10. At all times pertinent hereto, Plaintiff disputed the alleged debt. 11. Plaintiff believes and therefore avers that the alleged debt is more than 4 years old. 12. Plaintiff believes and therefore avers that the Defendants do not have a valid assignment of the alleged debt from the original creditor. 13. The alleged debt was sold, transferred and/or assigned by the original creditor to a fourth party, Unifund Corporation, and then assigned again to Remit Corporation for the filing of the untimely suit. 14. The alleged debt was originally First USA, which was disputed, and was sold to Chase and despite being sold/transferred several times, the chain of title attached by the Defendants does not stem from the original creditor. 15. Plaintiff never had an agreement with the Defendants to pay interest fees and costs. 16. The FDCPA is clear that the failure to dispute a debt may not be construed as an admission of liability and as such, Defendant had no legal reason to advise Plaintiff that failure to contact Asset Acceptance is a refusal to pay. 17. Plaintiff believes and therefore avers that Defendant does not have a valid assignment and is therefore, unlawfully attempted to collect the alleged debt. 18. Plaintiff believes and therefore avers that the Defendants failed to review the contract creating the alleged debt, in as much as Defendant admits that no attorney bothered to review the account. 19. At all times pertinent hereto, the Plaintiff disputed the alleged debt to the attorney defendants. 20. Plaintiff challenged the lawsuit and the Defendants withdrew the lawsuit. 21. At no time did the Defendants verify the alleged debt as was requested by the Plaintiff months ago. 22. Plaintiff believes and therefore avers that the Defendants knew that they did not have the legal authority to collect the alleged debt and sued him anyway. 23. Plaintiff believes and therefore avers that the Defendants knew that the alleged debt was disputed and files suit anyway. 24. Plaintiff believes and therefore avers that the Defendants routinely file suit against consumer debtors without proper validation, verification and assignment. 25. Plaintiff believes and therefore avers that the Defendants use the legal system to harass and intimidate consumer debtors. 26. Plaintiff believes and therefore avers that Defendants violated federal and state laws and/or the Rules of Professional Conduct. 27. At all times pertinent hereto, the principles of respondent superior and/or principal/agent applies to this Action. COUNT I -PENNSYLVANIA FAIR CREDIT EXTENSION UNIFORMITY ACT 73 P S §2270 et sep 28. Plaintiff hereby incorporates the foregoing as if fully set forth herein. 29. 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. 30. Plaintiff believes and therefore avers that Defendants violated 18 Pa.C.S. §7311(a) and (b), by not reviewing the contract creating the alleged debt to ensure compliance with federal and state laws as well as the Rules of Professional Conduct. 31. Plaintiff believes and therefore avers that Defendants do not have a valid written assignment for the alleged debt. 32. 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). 33. 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). 34. 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. 35. 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 respectfully requests that this Honorable Court issue judgment against Defendants for a statutory penalty, treble and punitive damages, attorney fees/costs pursuant to 73 P.S. §2270.5. COUNT II -PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 36. Plaintiff hereby incorporates the forgoing as if fully set forth herein. 37. Jurisdiction for this action is asserted pursuant to the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §241-1 et seq. 38. That defendants engaged in unfair methods of competition and unfair or deceptive acts or practices, as defined by UTPCPL. 39. 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 SEO 40. 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. 41. Venue lies in this District pursuant to 28 U.S.C. 1391(b). 42. Plaintiff is an individual and consumer pursuant to 15 U.S.C. § 1692a(6). 43. Defendants are debt collectors as defined by 15 U.S.C. 11692a(3). 44. Defendants contacted Plaintiff by legal documents which are "communications" relating to a "debt" as defined by 15 U.S.C. 11692a(2) and 1692a(5). 45. At all pertinent times hereto, the Defendants were hired to collect a debt relating to a consumer transaction. (Hereinafter the "alleged debt.") 46. 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 the alleged debt. 47. FDCPA requires debt collectors to comply with all state laws. 15 U.S.C. §1692n. Defendant violated Pennsylvania law, l8 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 written assignment of the alleged debt. 48. 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. 49. The Defendants violated 15 U.S.C. § 1692e(2)(A), (5) and (10) by misrepresenting the imminence of legal action by Defendants. 50. The Defendants violated 15 U.S.C. § 1692e(2)(A), (5) and (10) by misrepresenting the legal status of the alleged debt. 51. Defendants violated 15 U.S.C. § 1692f, by attempting to collect a time barred debt. 52. Defendants violated 15 U.S.C. §1692f, by threatening and filing suit without proper legal authority in Pennsylvania. 53. 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. 54. Defendants violated 15 U.S.C. ~ 1692e(3), by misrepresenting that an attorney was involved in the collection of the alleged debt, by use of their attorney letterhead, by inviting unrepresented consumers to contact their office and by advising the consumer to contact office staff that advise the consumer that failure to accept a settlement term will be "reported" to the attorney. 55. Plaintiff believes and therefore avers that no attorney intended to review his account which is why when challenged, rather than validate the alleged debt pursuant to the FDCPA, they withdrew the suit in April 2008. 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. At all times pertinent hereto, the Plaintiff was unable to dispute the alleged debt. 59. 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. 60. The FDCPA states, it is unlawful to misrepresent the legal stah~s of an allege debt, 15 U.S.C. § 1692f and § 1692e(2)(A). Defendant violated this section of the FDCPA. 61. Defendants collection communications were intentionally confusing, misleading and otherwise deceptive to the Plaintiffs, in violation of 15 U.S.C. § 1692e(5) and (10). 62. Defendants sent a written demand, on attorney letterhead, to an unrepresented consumer, with the sole purpose so as to use the attorney's status and position as an attorney to mislead, deceive the Plaintiff and create a false sense of urgency. 63. Defendants communications created a false sense of urgency on the past of Plaintiff in violation of the FDCPA. 64. Defendants filed suit on atime-barred debt in violation of the FDPCA. 65. 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. 66. 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. 67. Plaintiff believes and therefore avers that the Defendant's agents made false threats of litigation. ' ~ 68. Defendants' communications were intentionally confusing and deceptive, in violation of 15 U.S.C. §1692e(5) and (10). 69. Plaintiff was confused, deceived and believed that litigation was imminent if settlement was not made as such, he contacted an attorney. 70. The above mentioned acts with supporting cases demonstrates that the conduct of Defendant rises to the level needed for punitive damages. 71. Defendant, in its collection efforts, violated the FDCPA, inter alia, Sections 1692, b, c, d, e, f, g, h, and/or n. 72. Defendant, in its collection efforts, used false or deceptive acts and intended to oppress and harass plaintiff. 73. 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. ©) 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 o i Dated: l /26/09 By: /s/Deanna L nn Sar Deanna Lynn Saracco, A torney for Plaintiff 76 Greenmont Drive, Enola, PA 17025 Telephone 717-732-3750 Saraccolaw@aol.com ~ r. ~ ~l ~ ~~ ~ ~~__ _ t"yJ ___ ~_~ y 1~~ ~-11~~ v ~~ VAA~~~~.~~~~~111/// 1 ~ .V