HomeMy WebLinkAbout05-5938IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
AMY L. GRIVA,
Plaintiff,
V.
NCC, A Division of Commonwealth
Financial Systems, Inc.,
Defendant.
Civil No.: 4/ 593 &O"'
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 most 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 nan demandado a usted en _9 ?orte °.isLed qa-rr defend r,e ae
est,s demar.das exnuetas en _as pagi-ias s?qui??ntes, usted laen^ -:,irnte ?,O)
dias ae olazo al part-r de la f--ha de la ex,r _a c; e:: per..-:ona o ?.or abogado y
archivar en is torte en torn, excr_ta sus e'ensas c. sus ck ecti ones a -is
demande, la corte tomara meiii_s y K'uede er,_rar una Orden :ontra Led sin
previ0 a-:iso o notif;cacicn y por uu?-c,ic quoja c? ali vir que es , lido en lc
petition de demanda. Usteca uede a^:e_ dr?erc O Sus Ix:>r ea des ?tres
derechos importances para usted.
LLEVE E 'A D-'? AN CA A cat? 7v OCTCJ 1ENEPI.P.AP4EN''E. SI NO m=L?N r:;,3A DOO S.
NO fTENE EL oTNERO SIP CIENiEE JR. PA(;AR Ps' kR?IC ?c CI JAY, EN PE3 )NA o LLA.ME
POR TELEFONO ?1 LA 0P.CINA CIYA E-RE ."'ON S PUE)ECCNPECIfR SISYENCIA LEGAL.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
AMY L. GRIVA,
Plaintiff,
V.
Civil No.:
NCC, A Division of Commonwealth
Financial Systems, Inc., JURY TRIAL DEMANDED
Defendant.
COMPLAINT
COUNT I - PENNSYLVANIA FAIR CREDIT EXTENSION UNIFORMITY ACT
Jurisdiction for this Action is asserted under the Pennsylvania Fair Credit Extension
Uniformity Act, 73 P.S. §2270 et seq.
2. Violating provisions of the Fair Debt Collection Practices Act also violate the
Pennsylvania FCEU, 73 P.S. §2270.4(a).
3. That defendants 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).
4. Defendants' 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.
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.
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.
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. §1692a(3).
10. Defendant NCC, A Division of Commonwealth Financial Systems, Inc., are business
entity(ies) engaged in the business of collection debts in this Commonwealth, with its
principal place of business located at 120 N. Keyser Avenue, Scranton, Pennsylvania,
18504, and an office with a mailing address of P.O. Box 18036, Hauppauge, New York,
11788-8836.
11. Defendants are debt collectors as defined by 15 U.S.C. I I692a(6).
12. Defendants sent letters to Plaintiff, dated September 20, 2005, and October 19, 2005,
which are a "communications" relating to a "debt" as defined by 15 U.S.C. 11692a(2).
13. The amount demanded by the defendants increased between the letters. See Attached.
14. 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. § 1692a(5).. (Hereinafter the "alleged
debt.")
15. 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.
16. Plaintiff believes and therefore avers that defendants are adding interest, fees and costs in
violation of state and federal law.
17. 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.
18. There was never an express agreement by Plaintiff to pay any additional fees, cost or
interest to Defendants.
19. The FDCPA states that a violation of state law is a violation of the FDCPA. 15 U.S.C.
§1692n. Pennsylvania law states, in pertinent part, 18 Pa.C.S. §7311:
"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:
1. 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.l)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."
20. Plaintiff believes and therefore avers that the defendants do not have proper assignment
of her claim, in violation of Pennsylvania law.
21. 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.
22. 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.
23. The FDCPA states that a violation of state law is a violation of the FDCPA. 15 U.S.C.
§ 1692n. Defendant violated this section of the FDCPA.
24. 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.
25. Defendants letters do not advise Plaintiff the name of the original creditor.
26. An agent of defendant, Joe Lynch, who signed the letters, contacted Plaintiff by
telephone.
27. Mr. Lynch made harassing and false statements in his communications to Plaintiff.
28. Mr. Lynch advised Plaintiff that he was going to sue her and that he could take her
property and attach her wages.
29. Only the original creditor can file suit against Plaintiff and wage attachment is unlawful
in Pennsylvania.
30. The Fair Credit Reporting at, 15 U.S.C. §1681b prohibits the improper use of a
consumer's credit information.
31. 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.
32. The FDCPA 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. § 1692j. Defendant violated this section of the FDCPA.
33. The FDCPA 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 FDCPA.
34. The FDCPA 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. § 1692f and § 1692e(2)(A) and (B). Defendant violated this section of the
FDCPA.
35. 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).
36. Defendant's communications created a false sense of urgency on the past of Plaintiff in
violation of the FDCPA,
37. Defendants letters offered Plaintiff a settlement, causing her to believe litigation was
imminent.
38. 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).
39. 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.
40. 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.
41. Defendant's letters were intentionally confusing and deceptive, in violation of 15 U.S.C.
§1692e(5) and (10), §1692f(8) and §1692j.
42. Plaintiff was confused, deceived and believed that litigation was imminent if settlement
was not made.
43. The above mentioned acts with supporting cases demonstrates that the conduct of
defendants rises to the level needed for punitive damages.
44. Defendant, in its collection efforts, violated the FDCPA, inter alia, Sections 1692, b, c, d,
e, f, g, h, and/or n.
45. Defendant, in its collection efforts, used false or deceptive acts and intended to oppress
and harass plaintiff.
46. 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) 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 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 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 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.
COUNT III - CLASS ACTION
47. Plaintiff hereby incorporates the foregoing as if fully set forth herein.
48. Federal Rule of Civil Procedure, 23, permits a class action if certain criteria are met.
49. The FDCPA permits class action, 15 U.S.C. §1692k(a)(2)(B).
50. In this case, all defendants charged unlawful interest, fees and/or charges, in violation of
state and federal law.
51. In this case, all defendants failed to comply with Pennsylvania law, 18 Pa.C.S. §7311 et
seq.
52. In this case, defendants' letter contained false, deceptive and misleading statements.
53. This action seeks a declaration that the form of defendants' collection letter violated the
FDCPA
54. This action seeks a declaration that defendants' collection practices violated the FDCPA.
55. The Class consists of all persons who received a collection letter identical or similar to
the letters attached as Exhibit A and B.
56. Plaintiff's claims are typical of the claims of the Class.
57. It is unknown how many letters were sent by each defendant, as such, Plaintiff believes
and therefore avers that the number exceeds 100 persons.
58. Common relief is therefore sought on behalf of all members of the Class.
59. This Class Action is superior to other available methods for the fair and efficient
adjudication of this controversy.
60. 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.
61. 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 FDCPA.
62. Given the nature of defendants' practices, it is likely that other consumers in
Pennsylvania have been harmed by these practices.
63. 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.
64. This action could be handled as a no-notice class, and is superior to the alternative,
hundreds of Pennsylvania residents filing separate FDCPA actions.
65. Plaintiff respectfully 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.
66. 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' letter violated the FDCPA, by threatening to report an
alleged debt in excess of seven years,
e. Declare that defendants' practices of adding unlawful collection fees violated
Pennsylvania law and the FDCPA,
f. 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,
g. Grant such further relief as this Honorable Court deems J Kt and proper.
Dated: 11115/05 By: lslDeanna
Deanna Lynn S racco
Attorney for Plaintiff
76 Greenmont Drive
Enola, Pennsylvania 17025
Telephone 717-732-3750
Fax 717-728-9498
Email: SaraccoLaw@aol.com
C'1
r ,.y
rO
Curtis R. Long
Prothonotary
office of the Protbonotarp
Q'CumberlalYb ?outYtp
Renee K. Simpson
Deputy Prothonotary
John E. Slike
Solicitor
O_c; - 5438 CIVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA
R C P 230.2
BY THE COURT,
CURTIS R. LONG
PROTHONOTARY
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