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HomeMy WebLinkAbout05-6258 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JOSEPH A. THORN, Plaintiff. v. CIVIL ACTION - JURY TRIAL OS - wrt eiuil'-ra.~ CREDITOR'S INTERCHANGE. Defendant. 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 Idithin 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 t1an dernandado a us~e6 e~: 2 COLt0. Si ~s~ed q~~re defe~ders0 de e.s-cas demand23 exp'c'~-'Las en ~a:") pagina:;: .siquientc:.c.:;, !~.,-~'_eCl t.ienl,? vierlte> {20~" dias de plaza 31 partir de l~ fccMa d0 1a ex(~ri~a 0 0n persona (l Gor 1bo01UO y archivar en 1a cort(~ e:r, fonna ('x,__;-:.-ita s~--=~:; de::f-e;':,; J,e; ~:3US r~;r__;j",>-_~t~()~-.,?S alas demande, 1a corte tomara rnecEdas '/ pUt;~dp (-,:;icrar 1.1:":,'; c:,rde~; ('')n~_~:r,:) usts,;j ::::>: previa aviso 0 rlocificacion y por c~alqu;e:r queja 0 aJivio q;~e es pedido en 12 peticion de de!nanda. ~Js,=c"d plJede pS:i:'cier dirH?-::C) U SU,~3 () ccros de::-echos importante.s para u-steo. LT.,EVE ESTA DEI'vJANDA A UN ABOGJl.DO '->1tv!EDi A'="!\.IvlC::l'.iTr_~. :; T NO '!i ENE .L,BOGA,DOO S J NO TIENE EL DI:\)EFO .SUFIC~E:NTE [:~: Pi'''-.CZi.R Tp,~-, SEF\JICIO:;), \/J\"{]~, \:,N FF,~J,~:~)I\;P, () L:JJlJ'v]2 POR TI',L'?,FONO p, LJ\ OF:::CINJl, CU'il\ :-J] R;::C~'l()>; ,':;!:" prJE.~')2('<~'[\L~E::,'-~T!i ':\::;:::~T:::>;C_d\ Li':C;P,L. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYL VANIA JOSEPH A. THORN. Plaintiff: CIVIL ACTION - JURY TRIAL DEMANDED v. CREDITOR'S INTERCHANGE. Defendant. os -. ~~R CwiL L~ COMPLAINT And now comes Plaintiff. by and through her counscl. and files this Complaint and in support thereof: avers the following: COUNT I I. Jurisdiction for this Action is asserted under the Pcnnsylvania Fair Crcdit Extension UniJormity Act. 73 P.S. ~2270 et seq. 2. Defendant Creditor's Interchange. is a business entity engaged in the business of collecting consumer debts as well as purchasing consumer debts in default within this Commonwealth with a mailing address 80 Holtz Drive. Buffalo. New York. 14225. 3, Violating provisions of the Fair Debt Collection Practices Act also violate the Pennsylvania FCEl!. 73 P,S, 02270.4(a), 4. 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 (0. violations of37 Pa.Code 00303,3(3). 303,3(14). 303,3(18). 303,6 and 73 P,S, 0201-2(4), 5, Defendant's acts as described herein were donc with malicious. intentional. willful. reckless. negligent and wanton disregard for Plaintiffs rights with the purpose of coercing Plaintiff (0 pay the alleged debt. regardless of whether Plaintiff actually owes the alleged debt as stated by detendant. 6. As a result ofthe above violations. PlaintitT 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. COliNT II 7. Jurisdiction lor this action is asserted pursuant to the Fair Debt Collection Practices Act. IS U.S.C. 91692. et seq. ('TDCPA"), 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. 139I(b). 9. Plaintiff is an individual and consumer pursuant to IS U.S.c. 91692a(6). 10. Defendant is a debt collector as detined by IS U.S.C. I I 692a(3 ). 11. On or about October 7, 2005, defendant drafted and sent, via U.S. First Class Mail. a collection or "dunning" letter (0 PlaintifTas well as made numerous calls to Plaintiff which are communications relating to a "debt" as defincd by \ 5 U.S.c. 1 \ 692a(2) and 1692a(5). (Attached as Exhibit A.) 12. Agents of defendant made telephone calls to Plaintiff which contained false. misleading, contusing and harassing statements, including, threats of litigation, threats of wage attachment, were abusive in nature as well as namc-calling. 13. Agents of detendant identitied themselves as a bank even though they are a collection agency. 14. At all pertinent times hereto. the defendant was attempting to collect a debt rclating to a consumer transaction. (l-Iereinatler the "alleged deb!."') IS. Defendant communicated with plaintiff on or after one year betore thc datc of this action. in connection with collection efforts, by letters. telephone contact or other documents. with regard to plaintiff's alleged debt. 16. On or about October 7, 2005. deJendant dratled and mailed. to the Plaintiff. via U.S. mail. collection or "dunning" letters. in an attempt to coerce Plaintifl into paying thc alleged debt. (Attached as Exhibit A.) 17. Prior to receipt of the letter dated October 7. 2005. PlaintilTrcccived telephone calls from Detendant as stated above. 18. The telephone calls made by agents of detendant contained false. misleading. confusing and harassing statements, including. threats of litigation. threats of wage attachment. rude and foul language as well as name-calling. 19. As a result of receiving these telephone calls. Plaintilf informed defendant that he had obtained counsel. 20. On or about October 18. 2005. drafted and mailed, to the Plaintiffs attorney. via facsimile, a collection or "dunning" letter. demanding a settlement from Plaintitl. (Attached as Exhibits B.) 21. At all times pertinent hereto. the detendant was acting to confuse. deceive. coerce and in general, create a false sense of urgency on the part of the Plaintiff with respect to the alleged debt. 22. On or about November 10.2005. defendant again contacted Plaintifr despite actual knowledge that Plaintiff was represented by counsel. (Exhibit C,) 7' ...._). Plaintiff believes and therefore avers that defendant intentionally, maliciously, and willfully, confused Plaintitlinto believing that he owed multiple debts to multiple compames. 24. The alleged debts demanded by the defendant cannot be identified by Plaintiff on his credit report. 25, Plaintiff believes and therefore avers that the defendant failed to aftord Plaintiff the opportunity to dispute the alleged debt, interest charges, late fees and/or other amounts added to his alleged account. 26. Defendant demanded the balance in full, never affc)rding the Plaintiff an opportunity to set up partial payments, 27. Plaintiff believes and theretore avers that the alleged debt was sold to defendant in violation of Pennsylvania law. 28, Plaintitfbelieves and therefore avers that transfer of the alleged debt, created a benefit to the defendant and the original creditor involved in the transler, and any attempt to collect the alleged amount is deceptive, misleading and/or fraudulent. 29. Agents of defendant made threats of litigation against Plaintifl'. 30. The FOCI' A states that a violation of state law is a violation of the FOCI' A. 15 USe. 91692n. Pennsylvania law states, in pertinent part 18 Pa.C.S. 97311 : "Unlawful collection agency practices. (a) Assignment of claims. It is lawtlli for a collection agency. for the purpose of collecting or enforcing the payment thereof to take an assignmcnt of any such claim from a creditor. ifall of the following apply: 1. The assignment between the creditors and collection agency is in writing; 2. The original agreement bctwcen the creditor and dcbtor does not prohibit assignmcnts. 3. The collection agency complies with the act of Deccmber 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 agreemcnt creating the debt or is permitted by law." 31. The FDCP A states. a debt collector may not use unfair or unconscionable means tocollect or attempt to collect any debt. \ 5 U.S.c. 0 \ 692f. Defendant violated this section of the FOCP A. 32. 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. 01692e. Defendant violated this section of the FDCPA. 33. 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. 01692d. Defendant violated this section of the FDCPA. 34. The FDCP A states, a debt collector may not communicate. in connection with the collection of any debt, with any person other than the consumcr. 15 USe. 01692c(b). Dcfendant violated this section ofthc FDCPA. 35. 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 lact such person is not so participating. 15 U.S.c. 01692j. Defendant violated this section ofthe FDCP A. 36. The FDCP A states. it is unlawful to add interest. charges, ICes or other costs unless authorized by law or contract~ Plaintiff does not have a contract with Defendant. 15 U.S.C. 01692fand 01692e(2)(A) and (fl). Defendant violated these sections of the FDCPA. 37. The FDCPA provides certain rights to the consumer regarding his right to dispute the alleged debt. 15 U.S.c. S 1692g. Defendant violated this section of the FDCPA. 38. The FDCP A states, a debt collector may not communicate with a consumer at the consumer's place of employment if the dcbt collector knows or has rcason to know that the consumer's employcr prohibits the consumer from receiving such communications. 15 U.S.c. SI692c(a)(3). Defendant violated this section ofthe FDCPA. 39. Thc FDCPA states that a debt collector may not communicate with a consumer ifhe knows that the consumer is represented by an attorney. Defendant violated this section of the FDCPA. 40. Defendant made its collection communications intentionally confusing, mislcading and otherwise deceptive to the Plaintiffs, in violation of 15 U. S.C. S I 692e( 5) and (10). S I 692f(8) and S 1692j, see also. In re Belile. 208 B.R. 658 (E.D. Pa 1977). 41. 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. 1I1. 1993); Sluvs v. Hand. 831 F. Supp. 321 (S.D.N.Y. 1993); and Rosa v. Gavnor, 784 F. Supp I (D. Conn. 1989). 42. Any threat of litigation is t~llse 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. S I 692e( 10). 43. 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. 44. At all times pertinent hereto. the conduct of detendant. as well as its agents. scrvants. andlor employees, was malicious. intentionaL willfuL reckless. negligent and in wanton disregard for fedcral and state law and the rights of the Plaintiffhercin. 45. Defendant's letters were intentionally confusing and deccptive, in violation of 15 U.S.c. ~1692e(5) and (10).916921'(8) and S\692j. 46. Plaintiff was confused. deceived and believed tbat litigation was imminent if settlement was not made. 47. The above mentioned acts with supporting cases demonstrates that the conduct of defendants rises to the level needed for punitive damagcs. 48. Defendant. in its collection efforts. violated the FDCPA, infer alia. Sections 1692. b. c. d, e. f~ g, h, and/or n. 49. Defendant, in its collection efl,)l'ts, used false or deceptive acts and intended to oppress and harass plaintiff. 50. That. as a result of the wrongful tactics of defendants as aforementioned. plainti ff has been subjected to anxiety, harassment, intimidation and annoyance I,JI' which compensation is sought. WHEREFORE, PlaintilTrespectfully requests that his Honorable Court enter judgment on her behalf and against defendants and issue an Order: (A) Award Plaintiff statutory damages in thc amount ofGne Thousand Dollars ($ \ .000.00) for each violation of the FDCP A and/or each separate and discrete incident in which each of the defendants' have violated the FDCPA and lor which PlaintitT could have filed a separate action but consolidated her claims for judicial economy. (B) Award Plaintiff general damages and punitive damagcs filr 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 f,)rm letters, (0) Award Plaintiftcosts of this litigation, including a reasonable attorney's fce at a rate of $350,OO/hour for hours reasonably expended by his attorney in vindicating his rights under the FDCPA permilted by 15 use ~1692k(a)(3), (D) Award declaratory and injunctive relicf; and such other reliefas this Honorable Court deems necessary and proper or law or equity may provide, Dated: 12/2/05 I r'\ \ , \ (kJJ By: Is/Deanna L 1 c'~eeo Deanna Lynn Saracco, Attorney for Plaintiff 76 Greenmont Drive Enola, Pcnnsylvania 17025 Telephone 717-732-3750, Fax 717-728-9498 Email: SaraeeoLawfi/JaoLcom :vC'J ~~ ~ ~ - 4 ("'- 0-> U'l !J -lg. U1 V1 lJ1 C> ~ ::t:) +- ...:r "'-.'.8 (.') ...', -,\ ",_; ";,; :0 v > -~:' \ c:", , ~', )'.- _d~ - . ,--- IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JOSEPH A. THORN. Plaintift: v. CIVIL ACTION - JURY TRIAL DEMANDED CREDITOR'S INTERCHANGE. Defendant. No.: 05-6258 PRAECIPE TO WITHllRA W WITH PREJlJ[)(CE And now comes Plaintitl: by and through his counsel. Deanna Lynn Saracco. and flies this Praecipe to Withdraw the above captioned matter. with prejudice as the parties have amicably settled their dispute. This case should be discontinued and you may mark this case CLOSED. Dated: 1/30/06 ReS;C'Zcyubmitted. Deanna l.ynn Saracco. Attorney for Plaintiff 76 Greenmonl Drive Enola. PA 17025 717-732-3750 Certiflcate of Service: I hereby certify that I served, via U.S. First Class Mai I. a copy of the forgoing, on the defendant as follows: Mr. Thomas Wilcox. Director Creditors Interchange P. O. Box 1335 Buffalo, NY 14240 Dated: 1/30/06 &' I .' ,., De' n '~';;~Saraceo --" ........-l ~ cr ..... p-; Cl:l \ V:' () -" .-< -c~, \~~ ~5~~ __c ~ " .:', (-;~' --, - t..;1 (....1"