Loading...
HomeMy WebLinkAbout05-4857 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA AMY GRIV A, Plaintiff, v. Civil No.: Os- L/f/fs'7 ~ NATIONWIDE RECOVERY SYSTEMS, And ATTENTION FUNDING TRUST, Defendants. JUR Y 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 la corte. Si usted quire defenderse de estas demandas expuetas en ias paginas siquientes, usted tiene viente (20) dias de plazo a1 partir de la fecha de la excrita 0 en persona 0 por abogado y archivar en la corte en forma excrita sus defensas 0 sus objectiones alas demande, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 aiivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO 1MMED1ATAMENTE. S1 NO T1ENE ABOGADOO S1 NO TIENE EL D1NERO SUFICIENTE DE PAGAR TAL SERVICION, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE PUEDECONSEGUIR AS1STENC1A LEGAL. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA AMY GRIV A, Plaintiff, v. Civil No.: D5~ '-I ?-,1 6.;,d ~- NATIONWIDE RECOVERY SYSTEMS, And ATTENTION FUNDING TRUST, Defendants. JURY TRIAL DEMANDED COMPLAINT COUNT I - PENNSYLVANIA FAIR CREDIT EXTENSION UNIFORMITY ACT 1. 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 ~9303.3(3), 303.3(14), 303.3(18), 303.6 and 73 P.S. ~201-2(4). 4. Defendant's 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. 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. ~2270.5. 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. 91692, et seq. ("FDCPA"), particularly 15 U.S.c. 91692k(d) and 28 U.S.C. 91337. 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. 91692a(3). 10. Defendant Nationwide Recover Systems, is a business entity(ies) engaged in the business of collecting debts in this Commonwealth with its principal place of business located at 2304 Tarpley Drive # 134, Carroll ton, TX 75006. II. Defendant is a debt collector as defined by 15 U.S.c. 1 I 692a(6). 12. Defendant sent letters to Plaintiff, dated May 23,2005, and July 5, 2005, and made numerous telephone calls which are "communications" relating to a "debt" as defined by 15 U.S.C. I 1692a(2). 13. At all pertinent times hereto, the defendant was hired to collect a debt relating to a consumer transaction as defined by 15 U.S.C. 9 1692a(5). (Hereinafter the "alleged debt. ") 14. 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. 15. Defendant's May 23, 2005, letter stated that defendant would not do anything until the "expiration of the time period on the back of this letter." \ 16. However, agents of defendant began making telephone calls to Plaintiff: advising Plaintiff that she could not dispute the alleged debt demanding full payment and refusing to set up a payment plan, threatening to file suit against Plaintiff, advising Plaintiff that she should stop paying for necessities so that she could pay the alleged debt. 17. On or about July 28,2005, Plaintiff contacted her attorney and a letter was sent to the defendant, telling the defendant to cease and desist. 18. Agents of defendant continued to contact Plaintiff by telephone call, into September of 2005, despite receiving the letter from Plaintiffs counsel. 19. Defendant violated IS U.S.C. S I 692e(a)(2) and S I 692c(c). 20. 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. IS U.S.c. S 1692e The statements of defendant's agents violated this section of the FDCP A. 21. Defendant violated IS U .S.c. S I 692e(2)(A) and (8). 22. Defendant violated IS U.S.c. sI692e(5) and (10). 23. Defendant violated IS U.S.C. S 1692e(8). 24. Defendant violated IS U.S.c. S I 692e(lI ), because even though the letter contained a 30 day notice, defendant's telephone contacts overshadowed that notice. 25. The FDCPA states that a violation of state law is a violation of the FDCPA. IS U.S.c. S 1692n. Pennsylvania law states, in pertinent part, 18 Pa.C.S. 97311: "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. 1 )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." 26. Plaintiff believes and therefore avers that the defendants do not have proper assignment and/or documentation of her alleged debt, in violation of Pennsylvania law. 27. 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. ~ 1692f. Defendant violated this section of the FOCP A. 28. The FOCPA states that a violation of state law is a violation of the FDCPA. 15 U.S.C. s1692n. Oefendant violated this section of the FDCP A. 29. The Fair Credit Reporting at, 15 U .S.c. ~ 1681 b prohibits the improper use of a consumer's credit information, defendants violated this section. 30. The FOep 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 of a debt. 15 U .s.e. ~ 1692d. Defendant violated this section of the FDep A. 31. The FDep 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.e. S1692j. Defendant violated this section of the FDep A. 32. The FOCP A provides certain rights to the consumer regarding her right to dispute the alleged debt, 15 U .S.c. ~ 1692g. Defendant violated this section of the FOCP A. 33. 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. 91692fand 91692e(2)(A) and (B). Defendant violated this section of the FDCP A. 34. Defendant's collection communications were intentionally confusing, misleading and otherwise deceptive to the Plaintiffs, in violation of IS U.S.C. 91692e(5) and (10), 91692f(8) and S1692j, see also, In re Belile, 208 B.R. 658 (E.D. Pa 1977). 35. 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). 36. 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, IS U.S.c. sI692e(5), IS U.S.C. sI692e(10). 37. 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. 38. 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. 39. Defendant's letters were intentionally confusing and deceptive, in violation of 15 U.S.C. 91692e(5) and (10), 91692f~8) and 91692j. 40. Plaintiff was confused, deceived and believed that litigation was imminent if settlement was not made. 41. The above mentioned acts with supporting cases demonstrates that the conduct of defendants rises to the level needed for punitive damages. 42. Defendant, in its collection efforts, violated the FDCP A, inter alia, Sections 1692, b, c, d, e, f, g, h, and/or n. 43. Defendant, in its collection efforts, used false or deceptive acts and intended to oppress and harass plaintiff. 44. 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 behalf of Plaintiff and against defendants 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 FDCP A. (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 defendants form letters. tD) Award Plaintiff costs 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 FDCP A, 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. COUNT III - CLASS ACTION 45. Plaintiff hereby incorporates the foregoing as if fully set forth herein. 46. Federal Rule of Civil Procedure, 23, permits a class action if certain criteria are met. 47. The FDCPA permits class action, 15 U.S.C. SI692k(a)(2)(B). 48. In this case, defendant failed to obtain proper assignment of the alleged debt, in violation of state and federal law. 49. In this case, defendant failed to comply with Pennsylvania law, 18 Pa.C.S. 97311 et seq. 50. In this case, defendant's letter contained false, deceptive and misleading statements. 51. This action seeks a declaration that the form of defendant's collection letter and subsequent telephone contacts violated the FDCP A 52. This action seeks a declaration that defendants' collection practices violated the FDCP A. 53. The Class consists of all persons who received a collection letter identical or similar to the letters attached as Exhibit A and B. 54. Plaintiffs claims are typical of the claims of the Class. 55. It is unknown how many letters were sent by each defendant, as such, Plaintiff believes and therefore avers that the number exceeds 100 persons. 56. Common relief is therefore sought on behalf of all members of the Class. 57. This Class Action is superior to other available methods for the fair and efficient adjudication of this controversy. 58. 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. 59. 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. Plaintiff's counseL attorneys Saracco and Rosen, participated as attorneys in class actions brought pursuant to the FDCP A. 60. Given the nature of defendants' practices, it is likely that other consumers in Pennsylvania have been harmed by these practices. 61. 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 Plaintiff's counsel will have adequate resources to represent the class. 62. This action could be handled as a no-notice class, and is superior to the alternative, hundreds of Pennsylvania residents filing separate FDCP A actions. 63. 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. 64. 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 defendants' 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, Grant such further relief as this Honorable~ C...rt....d]... ms jUs.. t.and proper. ,;1 . Dated: 9/19/05 By:s I ~an -1t~~~rcco Deanna Lynn Saracco Attorney for Plaintiff 76 Greenmont Drive Enola, Pennsylvania 17025 Telephone 717-732-3750 Fax 717-728-9498 Email: SaraccoLaw@aol.com f. r-> ~ -' Co'::> ~ ~l = .:;J1 z:\ l}:J (.I') ~"'! \ ~ r" \::j -0 1)~ ~ ~ ~ (i' \.P qh ~ \) ...;.I-n ~ \..'\ ~ .;.,c'" -n ~ 'J-'- _.~',,,. :: ..(') -- ~ G? brn " . " -'-\ ";P- O\'. (,.,) ~ v:; ...J ~ ~ ~ ~ ')J - ---.-.......--- IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA AMY GRIV A, Plaintiff, v. Civil No.: 05-4857 Civil Term NATIONWIDE RECOVERY SYSTEMS, And ATTENTION FUNDING TRUST, Defendants. JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW, WITH PREJUDICE And now comes Plaintiff, by and through her attorney, Deanna Lynn Saracco, and files this Praecipe to Withdraw, with Prejudice, the above captioned matter as the parties have amicably settled their dispute. This case is now discontinued, please mark this case CLOSED. Dated: !OI3l/05 By: IslDeanna L nn Sara Deanna Lynn Saracco Attorney for Plaintiff 76 Greenmont Drive Enola, Pennsylvania l7025 Telephone 7l7-732-3750 Fax 7l7-728-9498 Email: SaraccoLaw@aol.com I hereby certify that a true and correct copy was served on defendant, via electronic mail as follows: Steve McWhorter VP of Collections I GM Direct 972- 798-l 004 Steve.Mc Whorter@nrs.us Dated: 1 0/31/05 Q 0;; .c ~;;ti\ :zc~ (,0> r~:;: '- ~,i;)\ 'j;'C~'. Z 2. ~ 'f7. -;t:. ~ , - q, ~..,., r;ghJ b:b ~;~.:~!\ ;.4(=) t5(n --'" >': ~~ -0 -;;;:. r;? C,,) -'