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Home My WebLink About09-1108 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Darwin Lesher, Plaintiff, V. Civil Action No.: (q-1108 awa-FerM Law Offices of Mitchell N. Kay, P.C., And Mitchell N. Kay, attorney debt collector. 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 TAKE 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) dial 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 torte tomara medidas y puede entrar ,ina order contra usted sin previo aviso o notification y por cualquier queja o alivio que es pedido en la petition de demanda. Usted puede pe.rder dinero o sus prop.iedades o otros derechos importantes par_a usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. ST NO TIENE ABOGADO SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAIL SERVICION, VF.YA EN PERSONA 0 LLAME POP TELEFONO A LA OFICINA CUYA DIRECCION SE PUEDECONSEGUIR ASISTENCIA LEGAL. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Darwin Lesher : Plaintiff, by_ ??SD V. Civil Action No.: f6$-4536 Law Offices of Mitchell N. Kay, P.C., And Mitchell N. Kay, attorney debt collector. Defendant. COMPLAINT 1. Plaintiff is an individual, residing in the Commonwealth of Pennsylvania, and consumer pursuant to 15 U.S.C. §1692a(3). 2. Defendant (hereinafter Law Office) is a law firm/business entity(ies) engaged in the business of collecting consumer debts in this Commonwealth with its principal place of business located at 7 Penn Plaza, 18" Floor, New York, NY 10001. 3. On or about January 11, 2009, Defendant contacted Plaintiff by U.S. Mail and/or telephone calls in an attempt to collect an alleged consumer debt. 4. Defendant is a debt collector as defined by the state law and the FDCPA. 15 U.S.C. 11692a(6). 5. Defendant sent letters and/or made telephone calls to Plaintiff in June of 2007, which are "communications" relating to a "debt" as defined by 15 U.S.C. I I692a(2). 6. At all pertinent times hereto, the defendant was collecting an alleged debt relating to a consumer transaction, pursuant to 15 U.S.C. § 1692a(5). (Hereinafter the "alleged debt.") 7. 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. Plaintiff believes and therefore avers that Defendant's letters contained false, misleading, deceptive and/or confusing statements. 9. Plaintiff disputes the alleged debt and hereby requests proof of the manner in which the alleged debt was calculated, as is required by state and federal law. 10. Plaintiff believes and therefore avers that Defendant uses its position and title as attorneys in order to add heightened urgency and intimidation to its collection practices. 11. Plaintiff believes and therefore avers that Defendant uses its attorney status to make false, misleading and/or deceptive representation and/or implications that it has authority to take legal action in Pennsylvania. 12. Plaintiff believes and therefore avers that Defendant failed to make clear to the Plaintiff that it has no authority to take legal action in Pennsylvania. 13. The Plaintiff was mislead and deceived by Washington Mutual Home Equity Loans and as a result, suffered damages against WaMu and is seeking damages from same. 14. Attorneys who conform to the Rules of Professional Conduct, would conduct a reasonable review and would further, clearly advise an unrepresented consumer that the out of state attorney can take no legal action against the Plaintiff. 15. Consumers are hurt by these tactics. COUNT I - PENNSYLVANIA FAIR CREDIT EXTENSION UNIFORMITY ACT 16. Plaintiff hereby incorporates the foregoing as if frilly stated herein. 17. Jurisdiction for this Action is asserted pursuant to the Pennsylvania Fair Credit Extension Uniformity Act, 73 P.S. §2270 et seq. 18. Violating provisions of the Fair Debt Collection Practices Act also violate the Pennsylvania FCEU, 73 P.S. §2270.4(a). 19. Plaintiff believes and therefore avers 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). 20. Plaintiff believes and therefore avers that Defendant's 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. 21. 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. 2207.5. COUNT II - PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 22. Plaintiff hereby incorporates the forgoing as if fully set forth herein. 23. Jurisdiction for this action is asserted pursuant to the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P. S. §201-1 et seq. 24. Plaintiff believes and therefore avers that Defendant engaged in unfair methods of competition and unfair or deceptive acts or practices, as defined by UTPCPL. 25. 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 PRACTICES ACT 26. Plaintiff hereby incorporates the foregoing as if fully set forth herein. 27. 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. 28. Venue ties in this District pursuant to 28 U.S.C. 1391(b). 29. The FDCPA states that a violation of state law is a violation of the FDCPA. 15 U.S.C. §1692n. 30. Plaintiff believes and therefore avers that defendant does not have proper assignment of the claim, and is therefore, unable to collect the alleged debt pursuant to 18 Pa.C.S. §731 l (a)(1) and (2). 31. Plaintiff believes and therefore avers that defendant does not have proper assignments and/or documentation permitting said defendants to charge interest, fees and/or costs. 18 Pa.C.S. §73112(b)(1). 32. The FDCPA states that a violation of state law is a violation of the FDCPA. 15 U.S.C. §1692n. Plaintiff believes and therefore avers that Defendant violated this section of the FDCPA. 33. Plaintiff believes and therefore avers that defendant added interest, fees and costs in violation of state and federal law. 34. Plaintiff believes and therefore avers that Defendant in its collection efforts, demanded interest, fees and/or costs in violation of the FDCPA, 15 U.S.C. § 1692f(1) and 1692e(2)A and B. 35. There was never an express agreement by Plaintiff to pay any additional fees, cost or interest to Defendant or any of its agents. 36. 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£ Plaintiff believes and therefore avers that Defendant violated this section of the FDCPA. 37. 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), §1692f(8) and §1692V Plaintiff believes and therefore avers that Defendant violated these sections of the FDCPA. 38. 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. Plaintiff believes and therefore avers that Defendant violated this section of the FDCPA. 39. The Seventh Circuit held that for attorneys to avoid liability under Section 1692e(3), the attorney must apply, "ultimate professional judgment concerning the existence of a valid debt." Boyd v. Wexler, 275 F.-3)d 642. 647 (7`n Cir. 2001). Plaintiff believes and therefore avers that Defendants violated, 15 U.S.C. § 1692e(3). See also, Nielsen v. Dickerson, 307 F.-3d 623 (7` Cir. 2002), Alvin v. Rubin, 84 f3d 222 (7" Cir. 1996). 40. It has long been held that attorneys cannot sell their name/title/status or in simple terms, letterhead, to a collection agency. Bitah v. Global Collection Services, Inc., 968 F. Supp. 618 (D. New Mexico 1997). 41. In Brown v. Card Service Center, 464 F.3d 450 (3d Cir. 2006), the Third Circuit concluded that it would be deceptive under the FDCPA, "to assert that it could take any action that it had no intention of taking and has never or very rarely taken before." Brown. The FDCPA prohibits any action that cannot legally be taken or is not intended to be taken, 15 U.S.C. § 1692e(5) and (10). 42. The Third Circuit explained that the attorney's behavior need not be egregious. Dutton v. Wolpoff & Abramson, 5 F.3d 649 (3d. Cir. 1993). 43. 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). 44. Plaintiff believes and therefore avers that the Defendants violated 15 U.S.C. § 1692f, by threatening and/or filing suit without proper legal authority in Pennsylvania. 45. The FDCPA provides certain rights to the consumer regarding his/ her right to dispute the alleged debt, 15 U.S.C. § 1692g. Plaintiff believes and therefore avers that Defendants violated this section of the FDCPA. 46. Any threat of litigation is false if the defendant rarely, sues consumer debtors or if the defendant did not intend to sue the Plaintiff. Bently v. Great Lakes Collection Bureau, 6 F.-3d 62 (2d Cir. 1998). See also, 15 U.S.C. §1692e(5), 15 U.S.C. §1692e(10). 47. Courts have held that the threat of litigation is present simply because the letter comes from an attorney; the letter need not explicitly threaten suit. Crossley v. Lieberman, 868 F.2d 566 (3d Cir. 1989). United States v. Central Adjustment Bureau, 667 F. Supp. 370, 397 (N.D. Tex. 1986). 48. An attorney's interstate collection contacts must avoid misrepresenting the attorney's authority to sue where he or she is not admitted to practice. Crossley v. Lieberman, 868 F 2d 566 (3d Cir. 1989). 49. Defendant's contacts would easily confuse the least sophisticated consumer and cause the consumer to falsely believe that he/she could be sued in an out-of-state court. Rosa v. Gaynor, 704 F. Supp. 1 (D. Conn. 1989). 50. 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 defendants herein. 51. 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. 52. The above mentioned acts with supporting cases demonstrates that the conduct of defendants rises to the level needed for punitive damages. 53. Defendant, in its collection efforts, violated the FDCPA. inter uliu, Sections 1692, b, c, d, e, f, g, h, and/or n. 54. Defendant, in its collection efforts, used false or deceptive acts and intended to oppress and harass plaintiff. 55. 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 for Plaintiff 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 defendants 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 defendants form letters. C) Award Plaintiff costs of this litigation, including a reasonable attorney's fee at a rate of $450.00/hour for hours reasonably expended Plaintiff's attorney in vindicating his 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. 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 Dated:2/20/09 73 P.S. §20y-,902 By: /s/MN4wS &0n 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 I IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Darwin Lesher, Plaintiff, V. Law Offices of Mitchell N. Kay, P.C., And Mitchell N. Kay, attorney debt collector. Defendant. Civil Action No.: 09-1108 PRAECIPE TO DISCONTINUE/WITHDRAW WITHOUT PREJUDICE And now comes Plaintiff, by and through counsel, Deanna Lynn Saracco, and files this Praecipe to Withdraw the above captioned matter, WITHOUT prejudice. The Plaintiff believes that this case would be better served as a class action in federal court. The case will be re-filed. This case should be discontinued and you may mark this case CLOSED. Respectfully submitted, Dated: 3/10/09 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: Mitchell N. Kay Law office 7 Penn Plaza, 18'' Floor New York, NY 10001. Dated: 3/10/09 &-54- Deanna Lynn Saracco ca ? t't? ; r ? n `rt V ' C1 P1.. .;QCs