Loading...
HomeMy WebLinkAbout15-0141 Supreme Co u o : Pennsylvania Cour,Ofy Commo a Pleas For Prothonotary Use Only: , C 1 der Shet IT Docket No: T Q,V' 4dl CUMB LAND �T County The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or otherpapers as required by law or rules of court. l Commencement of Action: S ®x Complaint 0 Writ of Summons Petition Transfer from Another Jurisdiction Q Declaration of Taking yE C Lead Plaintiff's Name: Lead Defendant's Name: TRAVIS SMITH PORTFOLIO RECOVERY ASSOCIATES, LLC , T Dollar Amount Requested: R within arbitration limits I Are money damages requested? 0 Yes 0 No (check one) 13outside arbitration limits � O s N Is this a Class Action Suit? [3 Yes Ixi No Is this an MDJAppeal? El Yes S No A Name of Plaintiff/Appellant's Attorney: ROBERT D. KLINGENSMITH, ESQ.ATTORNEY FOR PLAINTIFF ® Check here if you have no attorney(are a Self-Represented [:Pro Sel Litigant) y Nature of the Case: Place an"X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim,check the one that you consider most important. TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS Intentional [3 Buyer Plaintiff Administrative Agencies i Malicious Prosecution [3 Debt Collection:Credit Card Board of Assessment Q Motor Vehicle El Debt Collection:Other © Board of Elections h []Nuisance FDCPA Dept.of Transportation ` [3 Premises Liability J Statutory Appeal:Other I S [3 Product Liability(does not include ®Employment Dispute: I E mass tort) Discrimination I Slander/Libel/Defamation C � Other: � Employment Dispute:Other © Zoning Board � Other: T, Other: U MASS TORT E3 Asbestos N [j Tobacco Toxic Tort-DES Toxic Tort-Implant ' REAL PROPERTY MISCELLANEOUS Toxic Waste Ejectment Common Law/Statutory Arbitration B [3 Other: Eminent Domain/Condemnation Declaratory Judgment Ground Rent Mandamus 13 Landlord/Tenant Dispute ! Non-Domestic Relations Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY [3 Mortgage Foreclosure:Commercial 0 Quo Warranto Dental [3 Partition 0 Replevin 0 Legal 0 Quiet Title 0 Other: 0 Medical 0 Other: Other Professional: Updated 1/1/2011 . L IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TRAVIS SMITH Plaintiff COMPLAINT IN CIVIL ACTIOnN V. NO. (� PORTFOLIO RECOVERY ASSOCIATES, : LLC �- Defendant f Filed on Behalf of Plaintiff: TRAVIS SMITH Counsel of Record: Robert D. Klingensmith,Esquire PA I.D. #313960 HAROLD SHEPLEY &ASSOCIATES, LLC 209 West Patriot Street Somerset, PA 15501 (814)444-0500 Jury Trial Demanded and Upon Removal or Appeal IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TRAVIS SMITH Plaintiff Civil Action-Law V. NO. PORTFOLIO RECOVERY ASSOCIATES, : LLC Defendant NOTICE 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 and Notice are 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 you and a judgment may be entered against you by the Court 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER. THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGBILE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle,PA 17103 Telephone No. (717) 249-3166 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TRAVIS SMITH . Plaintiff Civil Action-Law V. NO. PORTFOLIO RECOVERY ASSOCIATES, : LLC Defendant COMPLAINT AND NOW, comes the Plaintiff, Travis Smith, by and through his attorney, Robert D. Klingensmith, Esquire of the law firm of Harold Shepley &Associates, LLC, and files the following Complaint and, in support thereof, avers the following: Summary of Case 1. Defendants',by using false, misleading, deceptive and fraudulent papers in the attempted collection of alleged debts throughout the Commonwealth of Pennsylvania, have engaged in a concerted practice of fraudulent, misleading and unlawful debt collection and litigation activity against the Plaintiff and many others. 2. This is an action for damages brought by an individual consumer (Plaintiff)because of Defendant's violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA") and all relevant sections contained therein, which prohibits debt collectors from engaging in abusive, deceptive and unfair practices; an action for damages brought by an individual consumer because of Defendant's violation of Pennsylvania's Fair Credit Extension Uniformity Act 73 P.S. §2270.4 ("FCEUA") that protects consumers from unfair or deceptive acts or practices with regard to the collection of debts; and Pennsylvania's Unfair Trade Practices and Consumer Protection Law 73 P.S. §201-1 ("UTPCPL") that prohibits unfair or deceptive acts or practices in the conduct of any trade or commerce. 4 3. The FDCPA, FCEUA and the UTPCPL where created to combat the use of abusive, deceptive and unfair debt collection practices by many debt collectors. 4. Abusive debt collection practices contribute to the number of personal bankruptcies,to marital instability,to the loss of jobs, and to invasion of individual privacy. 5. Violations of the FCDPA,FCEUA and the UTPCPL by their very nature are considered/expected to cause emotional distress. (See 15 U.S.C. §1692 generally) 6. It is the purpose of the FDCPA,FCEUA and the UTPCPL to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged and to promote consistent State action to protect consumers against debt collection abuses. Jurisdiction and Venue 7. Paragraphs 1 through 6 of Plaintiff's Complaint are hereby incorporated by reference as though set forth at length herein. 8. This Court has jurisdiction in this matter pursuant to 15 U.S.C. §I692k(d), which provides that"[a]n action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction"; pursuant to 73 P.S. §2270.5, "[a]n action to enforce any liability created by [the FCEUA] may be brought in any court of competent jurisdiction in this Commonwealth..."; and this Court has original jurisdiction over the action arising under the UTPCPL. 42 Pa.C.S. §931. 9. The federal courts that"have had occasion to rule upon the meaning of subsection(d) of Section 1692k have stated that: "[t]he language is to be construed as a concurrent grant of jurisdiction to U.S. district and state courts." (See S. Rep. No. 382, 95`h Cong., 1St Sess. 8 5 (1977), reprinted in 1977 U.S. Code Cong. & Ad. News 1695, 1702; Peterson v. United States Accounts, Inc., 638 F.2d 1134, 1135-36 (8t'Cir. 1981) (dictum). In re Scrimpsher, 17 B.R. 999, 1004 n.8 (Bkrtycy. N.D.N.Y.1982). Itri v. Equibank, N.A., 318 Pa.Super. 268, 279, 464 A.2d 1336, 1342 (1983 Pa. Super.)). 10. Additionally, "the Pennsylvania Supreme Court, in ruling upon the propriety of a Commonwealth Court acting as the forum for the enforcement of a federal law (Truth-In- Lending Act)that contained language in its jurisdiction section identical to that in FDCPA,held: [h]ere [the Truth-In-Lending Act] 15 U.S.C.A. §I640(e), supra, specifically permits any court of "competent jurisdiction" to entertain the action. State courts thereby have the authority to hear such claims." (Id. At 280, 1342. See also Household Consumer Discount Co. v. Vespaziani, 490 Pa. 209, 212 n. 5,415 A.2d 689, 691 n. 5 (1980)). 11. Moreover, as the United States Supreme Court stated in Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507-508, 82S.Ct. 519, 522 (1962), "[w]e start with the premise that nothing in the concept of our federal system prevents state courts from enforcing rights created by federal law. Concurrent jurisdiction has been a common phenomenon in our judicial history, and exclusive federal court jurisdiction over cases arising under federal law has been the exception rather than the rule." 12. Venue in Cumberland County and within this Court is proper because Pa.R.C.P. 2179(a)(4)provides that"a personal action against a corporation or similar entity may be brought in and only in a county where a transaction or occurrence took place out of which the cause of action arose." 13. The debt collection activity which took place in this matter occurred in Cumberland County,Pennsylvania. The Plaintiff allegedly entered into a contract with the Defendant in Cumberland County,Pennsylvania. 6 Parties 14. Paragraphs 1 through 13 of Plaintiff's Complaint are hereby incorporated by reference as though set forth at length herein. 15. Plaintiff,Travis Smith("Smith"), is an adult individual residing at 175 Whiskey Run Road, Newville, PA 17241 which is located within Cumberland County in the Commonwealth of Pennsylvania. 16. Smith is a"consumer" within the meaning of the FDCPA and FCEUA as that term is defined by 15 U.S.C. §1692a(3). 17. Defendant,Portfolio Recovery Associates, LLC ("Portfolio"), is a debt collector as defined in the FDCPA and FCEUA with its principal place of business located at 120 Corporate Blvd.,Norfolk, VA 23502. Statement of Facts 18. Paragraphs 1 through 17 of Plaintiff's Complaint are hereby incorporated by reference as though set forth at length herein. 19. GE Capital Retail Bank allegedly issued a credit card to Plaintiff with an original account number ending in 0089 for personal uses. 20. Due to Plaintiff's alleged failure to make monthly payments when due on the credit card account,the original creditor, GE Capital Retail Bank began collection activity on the account. 21. GE Capital Retail Bank sold the alleged debt to Portfolio Recovery Associates, LLC who also began collecting on the alleged account. 7 22. Plaintiff Smith was represented by Harold Shepley and Associates,LLC ("HSA") for the account. 23. Plaintiff, through counsel sent a Power of Attorney to Portfolio Recovery which let the Defendant know of Plaintiff's representation. Portfolio Recovery then decided to file a lawsuit in which Plaintiff's Counsel entered his appearance and filed Preliminary Objections which further put Portfolio on notice of representation. A copy of the appearance as filed with the Court is attached as Defendant's Exhibit A. 24. Despite having received the POA and Entry of Appearance,.Portfolio continued to collect on the account by contacting Smith directly. Portfolio Recovery, during active litigation, even contacted Smith directly via telephone as well as the mail. 25. At all times,Portfolio Recovery had Plaintiff's Power of Attorney on file as well as the Entry of Appearance. 26. Plaintiff Smith contacted HSA to discuss this phone call and was deeply upset and suffered emotional distress as a result of the contact with the Defendant. 27. At all times throughout Portfolio was aware that HSA was representing the Plaintiff. 28. Upon information and belief,Defendant regularly uses instrumentalities of interstate commerce or the mails for the principal purpose of collecting or attempting to collect debts owed or due or asserted to be owed or due another. 29. Upon information and belief,Defendant regularly uses the mail or telephone to communicate information to a consumer to collect, or attempt to collect, delinquent consumer debts. 8 Count I Smith v Portfolio Recovery Associates,LLC Violation of 15 U.S.C. §1692e-Use of false,deceptive,or misleading representation in connection with debt collection; 15 U.S.C. §1692c(a)(2) Communication with consumer represented by an Attorney; and 15 U.S.C. §1692g(b) 30. Paragraphs 1 through 29 of Plaintiff's Complaint are hereby incorporated by reference as though set forth at length herein. 31. Portfolio contacted the Plaintiff directly which was a false representation in regards to the account with the Plaintiff. Portfolio contacted the client which misrepresented the status of the debt in which Plaintiff was expecting Plaintiff's counsel to be handling. 32. Portfolio ignored the entry of appearance and sent Smith information directly which is a direct violation of 15 U.S.C. §1692g(b). 33. Portfolio's conduct violates 15 U.S.C. §1692e(2)(A), which provides that"[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (2) [t]he false representation of- (A)the character, amount or legal status of any debt." 34. Furthermore,Portfolio violated 15 U.S.C. § 1692e(10), which provides that"[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing,the following conduct is a violation of this section: (10) [t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer." 9 35. Furthermore, Portfolio's conduct would be deemed unfair practices under 15 U.S.C. §1692f. 36. The UTPCPL proscribes debt collection activity that results in"unfair or deceptive acts or practices"whether at, prior or subsequent to a consumer transaction. The Defendants' actions constitute unfair or deceptive acts and practices under the UTPCPL in the following particulars: a) Defendants engaged in fraudulent or deceptive conduct which created a likelihood of confusion or misunderstanding pursuant to 73 P.S. §201-2(xxi). b) Defendants misrepresented the character, extent or amount of the debt or its status in a legal proceeding pursuant to 73 P.S. §201-3. C) Defendants failed to comply with the FDCPA and FCEUA which result in a per se violation of the UTPCPL. 37. As a direct and proximate result of Defendant's actions as stated herein, the Plaintiff has suffered financial damages and harm. 38. Portfolio,by their own action and through its debts collector, contacted a consumer that had retained legal counsel, HSA, and such contact is in direct violation of 15 U.S.C. §1692c(a)(2). 15 U.S.C. §1692c(a)(2)provides that"if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer." 39. Portfolio knew Plaintiff was represented by counsel because they received a POA and entry of appearance for the active litigation 40. As a direct and proximate result of Defendants' actions as stated herein,the Plaintiff has suffered financial damages and harm. 41. HSA did not consent to any communication with the Plaintiff. 10 42. As previously stated, Portfolio violated the FDCPA and the FCEUA for using false, deceptive and misleading communications with the Plaintiff regarding the legal status of a purported debt in an effort collect that purported debt. As a result, Defendant committed a violation of 15 U.S.C. §1692e(2)(A) and 15 U.S.C. §1692e(10) which render it liable to the Plaintiff. 43. Furthermore,Portfolio knew that Plaintiff was represented by an attorney with respect to the alleged debt. As a result, Defendant violated 15 U.S.C. §1692c(a)(2). 44. As a result of Portfolio's contact with the consumer, Plaintiff is entitled to recover actual damages for emotional distress, as well as statutory damages, costs, treble damages and attorney's fees as provided by the FDCPA, FCEUA, and the UTPCPL. WHEREFORE, Plaintiff respectfully requests that judgment be entered against the Defendant for all damages to which he is entitled as follows: a. Actual Damages b. Statutory Damages c. Punitive Damages d. Costs e. Treble Damages f. Reasonable Attorney fees g. An Order requiring all Defendants to stop trying to collect on the account and remove said account from the Plaintiff's credit report. h. Such other and further relief as this Honorable Court may deem just and proper. 11 Praver for Relief WHEREFORE, Plaintiff respectfully prays that this Honorable Court declare that Defendants' debt collection tactics violated the FDCPA, FCEUA, and UTPCPL, and enter judgment in favor of Plaintiff and against the Defendants' for all damages to which she is entitled as follows: a) Actual Damages b) Statutory Damages c) Punitive Damages d) Costs e) Treble Damages f) Reasonable Attorney fees g) An Order requiring all Defendants to stop trying to collect on the account and remove said account from the Plaintiff's credit report. h) Such other and further relief as this Honorable Court may deem just and proper. Plaintiff seeks an amount that is within the Arbitration Limits. Respectfully submitted, Robert D. Klingensmith, Esquire PA I.D.#313960 Harold Shepley &Associates, LLC (814)-444-0500 Attorney for Plaintiff 12 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TRAVIS SMITH Plaintiff Civil Action-Law V. NO. PORTFOLIO RECOVERY ASSOCIATES, LLC Defendant VERIFICATION I,TRAVIS SMITH, verify that I am the Plaintiff in this action and that the foregoing Complaint is true and accurate to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Travis Smith Plaintiff 13 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PORTFOLIO RECOVERY ASSOCIATES, LLC Plaintiff CIVIL ACTION-LAW V. NO: 14-1775-CIVIL PRAECIPE TO ENTER APPEARANCE TRAVIS SMITH Defendant Filed on Behalf of Defendant: TRAVIS SMITH Counsel of Record: Robert D. Klingensmith, Esquire PA I.D. #313960 HAROLD SHEPLEY &ASSOCIATES, LLC 209 West Patriot Street Somerset, PA 15501 (814)444-0500 (814)444-0600 (fax) rklinizensmith@shepleylaw.com EXHIBIT A ^ R IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PORTFOLIO RECOVERY ASSOCIATES, LLC Plaintiff CIVIL ACTION-LAW V. NO: 14-1775-CIVIL TRAVIS SMITH Defendant PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of ROBERT D. KLINGENSMITH,ESQUIRE and the law firm of HAROLD SHEPLEY &ASSOCIATES, LLC, on behalf of the Defendant, TRAVIS SMITH, in the above captioned matter. Date Robert D. Klingensmith, Esquire Attorney for the Defendant Harold Shepley and Associates, LLC 209 West Patriot Street Somerset,PA 15501 (814)444-0500 (814)444-0600 (fax) rklingensmith@shepleylaw.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TRAVIS SMITH Plaintiff Civil Action-Law • V. NO. PORTFOLIO RECOVERY ASSOCIATES, LLC s Defendant PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: *' Kindly enter the appearance of ROBERT D. KLINGENSMITH, ESQUIRE and the law firm of HAROLD SHEPLEY &ASSOCIATES, LLC, on behalf of the Plaintiff, TRAVIS SMITH, in the above captioned matter. go ate Robert D. Klingensmith, Esquire Attorney for the Plaintiff 2