HomeMy WebLinkAbout05-3786
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
AMY GRIV A,
Plaintiff,
v.
Civil No.: 6!: - 37/b
Cu:L ~'0Z-1
CAPITAL MANAGEMENT SERVICES,
INC., and ALEGIS GROUP, L.P.
Defendants.
JURY TRIAL DEMANDED
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, P A
1-800-990-9108,717-249-3166
NOTICIA
Le han demandado a usted en 1a corte. 8i usted quire defenderse de
estas demandas expuetas en las paginas siquientes, usted tiene viente (20)
dias de plaza al partir de la fec~a de 1a excrita 0 en persona 0 par abogado y
archivar en 1a corte en forma excrita sus defensas 0 S\1S objectiones alas
demander 1a corte tomara medidas y puede entrar una orden contra usted sin
previa aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en 1a
peticion de demanda. Usted puede perder dinero 0 sus propiedades C otros
derechos importantes para usted.
LLEVE ESTA DEMANDA A ON ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADOO SI
NO TIENE EL DINERO SUFICIENTE DE ?AGAR TAL SERVICION, VAYA EN PSRSO~A 0 LLAME
POR TELEFONO A LA OFICINP, COY.l\ DIRECCION SE POEDECONSEGOIR ASISTENCLl\ LEGAL.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
AMY GRIV A,
Plaintiff,
v.
Civil No.: 05'- 31"'6(p
~J~
CAPITAL MANAGEMENT SERVICES,
INC., and ALEGIS GROUP, L.P.
Defendants.
JURY TRIAL DEMANDED
COMPLAINT
COUNT I - PENNSYLVANIA FAIR CREDIT EXTENSION UNIFORMITY ACT
I. Jurisdiction for this Action is asserted under the Pennsylvania Fair Credit Extension
Uniformity Act, 73 P.S. 92270 et seq.
2. Violating provisions of the Fair Debt Collection Practices Act also violate the
Pennsylvania FCEU, 73 P.S. 92270.4(a).
3. 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
of37 Pa.Code 99303.3(3), 303.3(14), 303.3(18), 303.6 and 73 P.S. 9201-2(4).
4. Defendant's acts as described herein were done with malicious, intentional, willful,
reckless, negligent and wanton disregard for PlaintitT's rights with the purpose of
coercing Plaintitl'to pay the alleged debt.
5. 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 his behalf
and against defendants for a statutory penalty, treble damages, punitive damages, attorney fees
and costs pursuant to 73 P.S. 92270.5.
COUNT II - FAIR DEBT COLLECTION PRACTICES ACT
6. Plaintiff hereby incorporates the forgoing as if fully set forth herein.
7. Jurisdiction for this action is asserted pursuant to the Fair Debt Collection Practices Act,
15 U.S.C. S1692, et seq. ("FDCPA"), particularly 15 U.S.C. S 1692k(d) and 28 U.S.C.
S1337.
8. Venue lies in this District pursuant to 28 U.S.c. 1391(b).
9. Plaintiff is an individual and consumer pursuant to 15 U.S.C. sI692a(3).
10. Defendant Capital Management Services, Inc., is a business entity(ies) engaged in the
business of collecting debts in this Commonwealth with its principal place of business
located at 726 Exchange Street, Suite 700, Buffalo, NY 14210.
II. Defendant Alegis Group L.P. is a business entity engaged in the business of collection
debts in this Commonwealth, with its principal place of business located at P. O. Box
5025, Sioux Falls, SD, 57117, and/or 15 S. Main Street, Suite 600, Greenville. SC 29601,
and/or450 Lexington Avenue. New York, NY 10017, and/or 9700 Richmond Avenue,
Suite 160, Houston, TX 77042.
12. Defendant Alegis Group LLP is owned and/or operated by Sherman Acquisitions, LLC
and/or Sherman Financial Group, LLC.
13. Defendants are debt collectors as defined by 15 U.S.C. I 1692a(6).
14. Defendant, Capital Management Services, Inc., sent a letter to Plaintiff, undated but the
envelope was dated May 13,2005, which is a "communication" relating to a "debt" as
defined by 15 U.S.C. I 1692a(2).
15. Defendant Alegis Group L.P., sent a letter to Plaintiff. dated May 16,2005, which is a
communication relating to a debt as defined by 15 U.S.C. S I 692a(2).
16. At all pertinent times hereto, the defendants were hired to collect a debt relating to a
consumer transaction as defined by 15 U.S.C. S 1692a(5).. (Hereinafter the "alleged
debt.")
17. 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.
18. Defendant Capital Management Services, Inc's, May 2005, letter stated that, Plaintiff
owed $2,541.74, to Sherman Acquisition LP.
19. Defendant Alegis Group, L.P.'s, May 2005, letter stated that, Plaintiff owed $2,541. 74 to
Sherman Acquisition.
20. Previous letters from other debt collectors connected to Sherman Acquisition Group,
stated that Plaintiff owed $2,341. 74.
21. Plaintiff believes and therefore avers that defendants are adding interest, fees and costs in
violation of state and federal law.
22. Defendant in its collection efforts, demanded interest, fees and/or costs in violation of the
FDCPA, 15 U.S.C. SI692f(l) and 1692e(2)A and B.
23. The FDCP A states, a debt collector may not use unfair or unconscionable means to
collect or attempt to collect any debt. Without limiting the general application of the
foregoing, the following conduct is a violation of this section: (I) The collection of nay
amount (including any interest, fee, charge or expense incidental to the principal
obligation) unless such amount is expressly authorized by the agreement creating the debt
or permitted by law. 15 U.S.C. SI692f(I).
24. The FDCP A states, a debt collector may not use 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 is a violation of this section, (2)
The false representation of (A) the character, amount or legal status of any debt, or (B)
any services rendered or compensation which may be lawfully received by any debt
collector for the collection of a debt. 15 U.S.C. S I 692e(2)A and B.
25. There was never an express agreement by Plaintiff to pay any additional fees, cost or
interest to Shennan Acquisitions or any of its debt collectors, including defendant Capital
Management Services, Inc., and Alegis Group, L.P.
26. The FDCP A states that a violation of state law is a violation of the FDCP A. 15 U.S.c.
S I 692n. Pennsylvania law states, in pertinent part, 18 Pa.C.S. S73I1:
"Unlawful collection agency practices.
(a) Assignment of claims. It is lawful for a collection agency, for the purpose of
collecting or enforcing the payment thereof: to take an assignment of any such
claim from a creditor, if all of the following apply:
I. The assignment between the creditors and collection agency is in writing;
2. The original agreement between the creditor and debtor does not prohibit
assignments.
3. The collection agency complies with the act of December 17, 1968...
(b.I)Unfair or deceptive methods. It is unlawful for a collector to collect any
amount, including any interest, fee, charge or expense incidental to the principal
obligation, unless such amount is expressly provided in the agreement creating the
debt or is permitted by law."
27. Plaintiff believes and therefore avers that the defendants do not have proper assignment
of her claim, in violation of Pennsylvania law.
28. Plaintiff believes and therefore avers that defendants do not have proper assignments
and/or documentation permitting said defendants to charge interest, fees and/or costs.
29. The FDCP A states, a debt collector may not use unfair or unconscionable means to
collect or attempt to collect any debt. 15 U.S.c. 91692f. Defendant violated this section
of the FDCPA.
30. The FDCP A states that a violation of state law is a violation of the FDCP A. 15 U .S.c.
9l692n. Defendant violated this section of the FDCP A.
31. Defendant Alegis Group, offered a "credit card" to Plaintitl as a way to resolve the
alleged debt.
32. Defendant Alegis Group, extended a credit offer to Plaintiff, that if accepted, would cause
Plaintiff to reaffirm an alleged debt for an amount higher than she actually owes.
33. Defendant Alegis Group, extended a credit offer to Plaintiff, that if accepted, would cause
Plaintiff to reaffirm an alleged debt that is beyond the statute oflimitations.
34. Defendant Alegis Group's offer of credit to collect a debt is unconscionable and
fraudulent.
35. Defendant Alegis Group's letter fails to adequately inform the Plaintiff of her rights under
numerous federal statutes.
36. The FDCP A 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. 91692e.
Defendant violated this section of the FDCPA.
37. The Fair Credit Reporting at, 15 U .s.c. 91681 b prohibits the improper use of a
consumer's credit information.
38. The FDCP A 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 ofa debt. 15 U.S.C. S1692d. Defendant violated this section of the FDCPA.
39. The FDCP A states, it is unlawful to design, compile and furnish any form knowing that
such form would be used to create the false believe in a consumer that a person other than
the creditor of such consumer it participating in the collection of or in an attempt to
collect a debt such consumer allegedly owes such creditor, when in fact such person is
not so participating. 15 U.S.c. S 1692j. Defendant violated this section of the FDCPA.
40. The FDCP A provides certain rights to the consumer regarding her right to dispute the
alleged debt, 15 U .S.C. S I 692g. Defendant violated this section of the FDCP A.
41. The FDCP A states, it is unlawful to add interest, charges, fees or other costs unless
authorized by law or contract; Plaintiff does not have a contract with Defendant.
15 U.S.C. S 1692f and S I 692e(2)(A) and (B). Defendant violated this section of the
FDCP A.
42. Defendant's collection communications were intentionally confusing, misleading and
otherwise deceptive to the Plaintiffs, in violation of 15 U.S.c. S 1692e(5) and (10),
SI692f(8) and SI692j, see also, In re Belile, 208 B.R. 658 (ED. Pa 1977).
43. 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. Gavnor, 784 F. Supp I (D.
Conn. 1989).
44. Any threat of litigation is false if the defendant rarely, sues consumer debtors or if the
defendant did not intend to sue the Plaintiff. Bentlv v. Great Lakes Collection Bureau, 6
F.3d 62 (2d Cir. 1998). See also, 15 U.S.c. sI692e(5), 15 U.S.c. sI692e(10).
45. 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.
46. 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.
47. Defendant's letters were intentionally confusing and deceptive, in violation of J 5 U.S.C.
SI692e(5) and (10), SI692t~8) and sI692j.
48. Plaintiff was confused, deceived and believed that litigation was imminent if settlement
was not made,
49. The above mentioned acts with supporting cases demonstrates that the conduct of
defendants rises to the level needed for punitive damages.
50. Defendant, in its collection efforts, violated the FDCP A, inter alia, Sections 1692, b, c, d,
e, f, g, h, and/or n.
51. Defendant, in its collection efforts, used false or deceptive acts and intended to oppress
and harass plaintiff.
52. 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
on his behalf and against defendants and issue an Order:
(A) Award Plaintiff statutory damages in the amount of One Thousand Dollars
($1,000.00) tor each violation of the FDCP A or each separate and discrete
incident in which defendants have violated the FDCP A.
(B) A ward 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 defendants form letters.
(C) Award PlaintifTcosts of this litigation, including a reasonable attorney's fee at a
rate of $350.00/hour for hours reasonably expended by his attorney in vindicating
his rights under the FDCPA, permitted by 15 U.S.c. !l1692k(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.
COUNT III - CLASS ACTION
53. Plaintiff hereby incorporates the foregoing as if fully set forth herein.
54. Federal Rule of Civil Procedure, 23, permits a class action if certain criteria are met.
55. The FDCP A permits class action, 15 U.S.c. !l1692k(a)(2)(B).
56. In this case, both defendants charged unlawful interest, fees and/or charges, in violation
of state and federal law.
57. In this case, both defendants failed to comply with Pennsylvania law, 18 Pa.C.S. !l731l et
seq.
58. In this case, defendants' letter contained false, deceptive and misleading statements.
59. This action seeks a declaration that the form of defendants' collection letter violated the
FDCPA
60. This action seeks a declaration that defendants' collection practices violated the FDCP A.
61. The Class consists of all persons who received a collection letter identical or similar to
the letters attached as Exhibit A and B.
62. Plaintiffs claims are typical of the claims of the Class.
63. It is unknown how many letters were sent by each defendant, as such, Plaintiff believes
and therefore avers that the number exceeds 100 persons.
64. Common relief is therefore sought on behalf of all members of the Class.
65. This Class Action is superior to other available methods for the fair and efficient
adjudication of this controversy.
66. The prosecution of separate action by individual members of the class would create a risk
of inconsistent or varying adjudications with respect to the individual members of the
Class, and a risk that any adjudications with respect to the interests of the other members
of the Class would, as a practical matter, either be dispositive of the interests of other
members of the Class not party to the adjudication or substantially impair or impede their
ability to protect their interests. Defendants acted in a manner applicable to the Class as a
whole that warrants declaratory relief.
67. The Plaintiff will fairly and adequate protect and represent the interests of the Class. The
management of the Class action proposed is not extraordinarily difficult and the factual
and legal issues raised will not require extended contact with the members of the Class
because defendant's conduct was perpetrated on all members of the Class and will be
established by common proof. Plaintiffs counsel, attorneys Saracco and Rosen,
participated as attorneys in class actions brought pursuant to the FDCP A.
68. Given the nature of defendants' practices, it is likely that other consumers in
Pennsylvania have been harmed by these practices.
69. The law firm of Krevsky & Rosen, located at 1101 North Front Street, Harrisburg,
Pennsylvania, have agreed to enter its appearance as co-counsel to ensure that Plaintiffs
counsel wilt have adequate resources to represent the class.
70. This action could be handled as a no-notice class, and is superior to the alternative,
hundreds of Pennsylvania residents filing separate FOCP A actions.
71. Plaintiffrespectfully requests that this Honorable Court consider the frequency and
persistence of defendants' non-compliance, the nature of defendants' non-compliance,
and the obvious intentional nature of the defendants by failing to verify whether the
collection amount is valid, as required by Pennsylvania law, failure to secure the proper
authorizations as required by Pennsylvania law and in general, attempting to deceive
Pennsylvania consumers.
72. Plaintiff respectfully requests that this Honorable Court certify the class and award such
amount for each named Plaintiff, $1,000.00, plus such amount as this Honorable Court
may allow for all other class members, without regard to a minimum of$500,000.00 or
one percent of the net wroth of the debt collector, and attorney fees of$350.00 per hour,
and costs as reasonably determined by this Honorable Court.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court
a. Certify the class,
b. Appoint Plaintiff to represent the members of the class,
c. Appoint Deanna Lynn Saracco and the law firm of Krevsky & Rosen as counsel
for the class,
d. Declare that detendants' practices of adding unlawful collection fees violated
Pennsylvania law and the FDCP A.
e. Enter judgement in favor of Plaintiff and the Class and against Defendants, for
statutory damages, costs and reasonable attorney fees in the amount of$350.00
per hour,
f. Grant such further relief as this Honorable Court deems just and proper.
Dated: 7/21105 By: Is/Deanna Lvnn saracco'!\,: ,A
Deanna Lynn Saracco ~
Attorney for Plaintiff
76 Greenmont Drive
Enola, Pennsylvania 17025
Telephone 717-732-3750
Fax 717-728-9498
Email: SaraccoLaw@aol.com
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PEI'.rNSYL VANIA
AMY GRIV A,
CIVIL ACTION
ORIGINAl.
Plaintiff
NO. ;1oc.D-376to (!.',":/
v.
JURY TRIAL DEMANDED
CAPITAL MANAGEMENT
SERVICES, INC., AND ALEGIS
GROUP, L.P.,
ELECTRONICALL Y FILED
Defendants
NOTICE OF REMOVAL
Defendant, Alegis Group, L.P., by and through its counsel, Marshall,
Dennehey, Warner, Coleman and Goggin, hereby moves this Honorable Court
pursuant to 28 U.S.C. SI441(b):
1. Alegis Group, L.P. IS a defendant in 1m action pending in the
Pennsylvania Court of Common Pleas for Cumberland County, Civil Action No.
05-3786. Alegis received a copy of the Complaint on OUT about August 12,2005.
A true and correct copy of the Complaint filed to No, 05-3786, is attached hereto
as Exhibit "A".
2. Plaintiff in the state court action is Amy Griva. See, Exhibit "A".
3. Plaintiffs state court action alleges, inter alia, violations of the Fair
Debt Collection Practices Act, 15 U.S.C. s1692a, et seq.
4. The state court action involves a question of federal law. Pursuant to
28 U.S.C. g144l(b), "any civil action of which the district court shall have original
jurisdiction founded on a claim or right arising under.. .the laws of the United
States shall be removable,"
5, Since this case arises out of an alleged violation of the Fair Debt
Collection Practices Act, 15 U.S.c. S 1692a, this Court may properly remove the
state court action based on 28 U.S.C, S1441(b).
6. Plaintiff's counsel, Deanna Lynn Saracco, has been notified of the
intent to remove the case and has no objection to, and concurs, with the requested
removal of the case.
WHEREFORE, defendant Alegis Group, L.P" requests that the action be
removed from the civil docket of the Court of Common Pleas of Cumberland
County to this Court for further proceedings.
MARSHALL, DENNEHEY, WARNER,
COL AN AND GOGGIN
-f}f P~il~
ARON M.. O'DONNELL, ESQ.
tty. LD. #79457
Chris Reeser, Esquire
Atty. LD. #73632
4200 Crums Mill Road, Suite B
Harrisburg, PA 17112
(717) 651-3503
CERTIFICATE OF SERVICE
I, SHARON M, O'DONNELL, ESQUIRE, hereby certify that I served a true
and correct copy of the foregoing Notice of Removal upon counsel for the
respective parties, as listed below, by regular mail and e-mail, postage prepaid, on
Monday, September 19,2005:
Richard J, Perr, Esquire
30 South 17th Street
Philadelphia, PA 19103
roerr@finemanlawfirm.com
Deanna Lynn Saracco, Esquire
76 Greenmont Drive
Enola, P A 17025
saraccolawlalaoI.com
Prothonotary
Cumberland County Court of Common Pleas
One Courthouse Square
Carlisle, P A 17013
MARSHALL, DENNEHEY, WARNER,
COLEMAN AND GOGGIN
~
RON M. O'DONNELL, ESQ.
Atty. LD. #79457
4200 Crums Mill Road, Suite B
Harrisburg, P A 17112
(717) 651-3503
105 _A ILlABISMOILLPGll980431SMOI1 0850100208