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HomeMy WebLinkAbout09-2646IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Amy Smith, Plaintiff, V. Civil Action No.: (q - ,Z(p y(o AIS Services, LLC. 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, 71.7-249-3166 NOTICIA Le Phan demandado a usted en la corte. Si usted quire defenderse de estas demandas expuetas en las paginas siquientes, usted tiene viente (20) Bias 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, 1a 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 proptedades o otros derechos Lmportantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE A30GAD00 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 Amy Smith, Plaintiff, V. V"..-- Civil Action No.: D 5- G Y4 AIS Services, LLC. 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 is a business entity engaged in the business of collecting consumer debts in this Commonwealth with a mailing address of 50 California Street, Suite 1500, San Francisco, CA 94111. 4. Violating provisions of the Fair Debt Collection Practices Act also violate the Pennsylvania FCEU, 73 P.S. §2270.4(a). 5. On or about June 11, 2009, Defendant contacted Plaintiff and by notice. 6. The Notice, attached as Exhibit A, was titled, "Account Verification Statement" and stated the following: "Our records indicate that you may have previously had a question regarding your account." 7. The Notice was the first communication from the Defendant to the Plaintiff and does not contain the 30 day validation notice. 8. Plaintiff called the defendant since she did not recognize the alleged debt. 9. The agent of the defendant was rude and insulted the Plaintiff. 10. The defendant's agent insisted that the law required the Plaintiff to provide her social security number to him, otherwise, he could not talk to her on the telephone. 11. Plaintiff attempted another call in the hope that someone else would answer and explain to Plaintiff the Notice. 12. Plaintiff never contacted the Defendant prior to receipt of the Notice and in no way had questions regarding the account, since the Plaintiff had no knowledge an account existed, prior to receipt of the notice. 13. The Notice goes on to say that, "This account verification statement is being provided to you in response to your previous inquiry or dispute." 14. Prior to receive of the June 2008, Notice, Plaintiff had no knowledge of the Defendant or any accounts held by the Defendant and never contacted the Defendant. 15. On or about September 9, 2008, Plaintiff sent a cease and desist letter to the Defendant. 16. On or about October23, 2008, Defendant sent another "Account Verification Statement" to the Plaintiff. 17. Plaintiff again tried to call and advised the defendant not to contact her and the Defendant again, insisted that she was violating the law because she would not give him her social security number. 18. Plaintiff tried to give her address change to the Defendant, however, the Defendant refused to take the information because the Plaintiff would not give her social security number. 19. The second Notice was identical to the first notice and was received over a month after the Plaintiff mailed her second cease and desist letter. 20. Plaintiff believes and therefore avers that Defendant does not have a valid assignment and is therefore, unlawfully attempting to collect the alleged debt. 21. Plaintiff believes and therefore avers that Defendant is attempting to collect a time-barred debt, in violation of Pennsylvania law. 22. Plaintiff has no knowledge of owing any monies to the Defendant or anyone listed on Defendant's Notice. 23. Plaintiff believes and therefore avers that the Defendant's motive for sending the letter was an attempt to obtain personal information about the Plaintiff and to unlawfully obtain her social security number. COUNT I - PENNSYLVANIA FAIR CREDIT EXTENSION UNIFORMITY ACT 73 P.S. §2270 et seg. 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: 26. Plaintiff believes and therefore avers that Defendant violated 18 Pa. C.S. §7311. 27. Plaintiff further believes that Defendant violated provisions of the Fair Debt Collection Practices Act, as alleged in the General Allegations and Count II, as such, said violated also violate the Pennsylvania FCEU, 73 P.S. §2270.4(a). 28. 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). 29. Defendant' 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. 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 Defendant for a statutory penalty, treble damages, punitive damages, attorney fees and costs pursuant to 73 P.S. §2270.5. COUNT II - FAIR DEBT COLLECTION PRACTICE ACT 15 U.S.C. §1692 ET SEQ. 31. 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. 32. Venue lies in this District pursuant to 28 U.S.C. 1391(b). 33. Plaintiff is an individual and consumer pursuant to 15 U.S.C. § 1692a(6). 34. Defendant are debt collectors as defined by 15 U.S.C. 11692a(3). 35. Defendant contacted Plaintiff in writing in June 2008 and October 2008, which are "communications" relating to a "debt" as defined by 15 U.S.C. 11692a(2) and 1692a(5). 36. At all pertinent times hereto, the Defendant were hired to collect a debt relating to a consumer transaction. (Hereinafter the "alleged debt.") 37. 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 plaintiff s alleged debt. 38. 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, as stated herein. 39. 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. ` 40. The Defendants violated 15 U.S.C. § 1692c(b) by contacting a third party, without the Plaintiffs prior consent. 41. The Defendants violated 15 U.S.C. § 1692e(2)(A), (5) and (10) by misrepresenting the imminence of legal action by Defendants. 42. At all times pertinent hereto, the Defendants made all contacts to the Plaintiff by telephone. 43. 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. 44. Defendants violated 15 U.S.C. § 1692g by demanding payment without providing the proper consumer warnings, thus, defendants overshadowed the FDCPA. 45. Defendants violated 15 U.S.C. § 1692e(7) by implying, during the course of the conversation, that the consumer was in "violated the law," and/or "committed fraud." 46. Defendants violated 15 U.S.C. § 1692f, by attempting to collect a time barred debt. 47. Defendants violated 15 U.S.C. § 1692d(2) by using profane and abusive language towards the consumer. 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(5) and (10). Defendant violated these sections of the FDCPA. 49. 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. 50. 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. 51. 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. 52. 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. 53. The Defendant violated 15 U.S.C. § 1692c(b) by contacting a third party, without the Plaintiffs prior consent. 54. The Defendant violated 15 U.S.C. § 1692e(2)(A), (5) and (10) by misrepresenting the imminence of legal action by Defendant. 55. The Defendant violated 15 U.S.C. § 1692c by contacting the Plaintiff after the Plaintiff had requested the Defendant cease communication with the Plaintiff. 56. The Defendant violated 15 U.S.C. § 1692g, by failing to give the required notices to the Plaintiff in the initial communication. 57. At all times pertinent hereto, the Plaintiff was unable to dispute the alleged debt. 58. 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. 59. 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. 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), § 1692f(8) and § 1692j, see also, In re Belile, 208 B.R. 658 (E.D. Pa 1977). 61. Defendant's communications created a false sense of urgency on the past of Plaintiff in violation of the FDCPA. Tolentino v. Friedman, 833 F. Supp. 697 (N.D. Ill. 1993); Sluys v. Hand, 831 F. Supp. 321 (S.D.N.Y. 1993); and Rosa v. Gaynor, 784 F. Supp 1 (D. Conn. 1989). 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 letters were intentionally confusing and deceptive, in violation of 15 U.S.C. § 1692e(5) and (10). 66. Plaintiff was confused, deceived and believed that litigation was imminent if settlement was not made. 67. The above mentioned acts with supporting cases demonstrates that the conduct of Defendant rises to the level needed for punitive damages. 68. Defendant, in its collection efforts, violated the FDCPA, inter alia, Sections 1692, b, c, d, e, f, g, h, and/or n. 69. Defendant, in its collection efforts, used false or deceptive acts and intended to oppress and harass plaintiff. 70. 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 issd6 an ©rder: (A) Award Plaintiff statutory damages, in the ainount 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. Respectfull ubmi ted, Dated:4/27/09 By: /s/ nn Saracco Deanna Lynn Saracco, Attorney for Plaintiff 76 Greenmont Drive, Enola, PA 17025 Telephone 717-732-3750 Email: SaraccoLaw@aol.com 0 L• v,"t 478.W Po A7711 ocil 01381 er* am340 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Amy Smith, Plaintiff, v. AIS Services, LLC. Civil Action No.: 09-2646 PRAECIPE TO DISCONTINUE/WITHDRAW WITHOUT PREJUDICE And now comes Plaintiff, by and through her co~u~sel, Deanna Lynn Saracco, and files this Praecipe to Withdraw the above captioned matter. without prejudice. This case will be better served as a class action in federal court. This case should he discontinued and you may mark this case CLOSED. Respectfully submitted, Dated: C~> ~~ d ~ 0 ~~ D ae nna Lynn Saracco, Attorney for Plaintiff 76 Greenmont Drive Enola, PA 17025 717-732-3750 Certificate of Service: Certificate of Service: I hereby certify that a true and correct copy was served on attorney for Defendant, via U.S. First Class mail, as follows: Joann Needleman, Attorney, 1617 .lohn F. Kennedy Boulevard. Philadelphia, PA 19103. Dated: ~ ~3~~0 `f canna Lvnn Saracco F~LEC~;=i=tw~ 4fi THE P~t:~-`~`t~ht~T~RY ZOQ9 JUG 30 AID ~~ 34 ~,