HomeMy WebLinkAbout06-1085IN THE COURT OV COMMON PLEAS
CUMBERLAND COUNTY. PENNSYLVANIA
LAURA RUSSELL,
Plaintiff.
V.
Civil No.: v?lo - (2 ???JLYr
'ps UC-
FINANCIAL RECOVERY SERVICES,
INC., and SHF,RMAN ACQUISITION LLP
and SHERMAN FINANCIAL GROUP LLC.
LVNV FUNDING LLC. and RFSURGI-:NT :
CAPITAL SERVICES, INC.,
Delendants.
JURY TRIAL DFMANDF,D
NOTICE TO PLEAD
TO THE DEFENDANT NAMED HEREIN:
You have been sued in court. Sf yoc wish to defend against
the claims set forth in '_re fol'_owing rages, you must take action
within twenty (20) days after. `his complain; is served, by
entering a wri'_ten appe r,ui-e rcrson rly or bV a-'=orney and
filing in .grit-ng with tn- _:e-r r _ your 1-,fer ses ar objections to
the claims set forth agair,.r yc) . i'r,a are warned that if you
fail to do so, the case may proceed witho'at 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 = or_a t to
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
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LAURA RUSSELL.
Plaintiff.
V. Civil No.: lops 010
FINANCIAL RECOVERY SERVICES. JURY TRIAI. DEMANDED
INC., and SHERMAN ACQUISITION LLP :
and SHERMAN FINANCIAL GROUP LLC.
LVNV FUNDING U.C. and RESURGL:NT :
CAPITAL SERVICES, INC.,
Defendants.
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 FCEIJ. 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 3)7 Pa.Code §§303.3(3), 303.3(14), 303.3(18).303.6 and 73 P.S. X201-2(4).
4_ Defendants' acts as described herein were done with malicious. intentional, willful,
reckless. negligent and wanton disregard kx 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 Ices and costs.
WHEREFORE, plaintiff requests that this Honorable CUm'l 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 It - FAIR DEIST COLLECTION PRACTICES ACT
6. Plaintiff hereby incorporates the forgoing as if fully set torth herein.
7. Jurisdiction for this action is asserted pursuant to the hair Debt Collection Practices Act,
15 U.S.C. §1691 et seq. (" FDCPA").. particularly 15 U.S.C. § 1692k(d) and 28 U.S.C.
§1337.
8. Venue lies in this District pursuant to 28 U.S.C. 139t(b).
9. Plaintiff is an individual. residing in Pennsylvania, and consumer pursuant to 15 U.S.C.
§ 1692a(3 ).
10. Defendant Financial Recovery 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 P. O. Box 385908. Minneapolis. MN 55438-5908.
It. Defendant Sherman Acquisitions LLP, Shuman Financial Group, LLC, LVNV Funding
LLC and Resureent Capital Services, [tic., are business entity(ies) engaged in the business
of collection debts in this Commonwealth, with its principal place of business located at
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. Defendants are debt collectors as defined by 15 U.S.C. 11692a(6).
13. Defendant, Financial Recovery Services, Inc., sent a letter to Plaintiff, dated January 27,
2006, which is a "communication" relating to a "debt" as defined by 15 11.S.C.
11692a(2).
14. Defendant Sherman et al., acting as principal, caused. directed. controlled and/or
purposefully enabled defendant Financial Recovery Services. Inc., to sent Plaintiff the
letter dated January 27. 2006.
15. Defendant Financial Recovery Services, Inc., letter stated that LVNV Funding LLC
acquired her alleged debt, and Resurgent Capital Services, Inc., placed the alleged debt
with Financial Recovery Services. Inc., for collection.
16. Prior to receipt of the aforementioned letter, agents of defendant, "Angela" contacted
Plaintiff at her place ofemployment.
17. Plaintiff made it clear that site could not make or receive personal calls at work.
18. During the month of February. 2006, another agent fi-om Financial Recovery Services,
Inc., called Plaintiffs place of employment and discussed her alleged debt with her
employer, a pharmacists.
19. The agent, Vince Hill, asked the pharmacist how long Plaintiff worked at her current job,
how many homy did she work there. how much was her salary, as well as asked other
personal questions.
20. 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. § I092a(5).. (hereinafter the "alleged
debt.")
21. Defendant communicated with plaintiff on or alter 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.
22. Plaintiff believes and therefore avers that defendants are adding interest, fees and costs in
violation of state and federal law.
23. 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.
24. The FDCPA 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. § 16921(1).
25. The FDCPA 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 max be lawfully received by any debt
collector for the collection of a debt. 15 U.S.C. § 1692e(2)A and B.
26. There was never an express agreement by Plaintiffto pay any additional fees, cost or
interest to Sherman Acquisitions or any of its debt collectors, including defendant
Financial Recovery Services. Inc., and/or Sherman Acquisition 11.11. Sherman Financial
LVNV Funding LLC. Resurgent Capital Services, Inc.. or any other subsidiary/parent
company of the Sherman/Alegis companies.
27. 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:
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...
(h.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."
28. Plaintiff believes and therefore avers that the defendants do not have proper assignment
of her claim, in violation of Pennsylvania law.
29. 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.
I 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.
.1 The FDCPA states that a violation of state law is a violation of the FDCPA. 15 U.S.C.
§1692n. Defendant violated this section ofthe FDCPA.
32. 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.
33. The Fair Credit Reporting at. 15 U.S.C. § 1691 b prohibits the improper use of a
consumer's credit information.
34. The FDCPA states, a debt collector may not discuss the consumers alleged debt with a
third party. The Defendant violated this section of the FDCPA.
35. The FDCPA states. a debt collector may no( 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 (1.S.C. §1692d. Defendant violated this section of the FDC PA.
36. The FDCPA states, it is unlawful to contact the consumer at his or her place of
employment. if the debt collector has reason to know that such calls are prohibited.
Defendant violated this section of the FDCPA.
37. The FDCPA provides certain rights to the consume' regarding her right to dispute the
alleged debt, 15 U.S.C. §16928. At no time during the initial communications, the
telephone calls, did the agents of defendant provide Plaintiff with her rights under the
law. Defendant violated this section of the FDCPA.
38. The FDCPA 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. § I6921'and § 1692e(2)(A) and (B). Defendant violated this section of the
FDCPA.
39. Defendants collection communications were intentionally confusing, misleading and
otherwise deceptive to the Plaintiffs, in violation of 15 U.S.C. §1692e(5) and (10),
§1692f(8) and §1692j. see also, In re Bclile. 208 B.R. 658 (F.D. Pa 1977).
40. Defendants communications created a false sense of ur8ency on the past of Plaintiff in
violation of the FDCPA. Tolentino v. Friedman. 833 F. Stipp. 697 (N.D. Ill. 1993); 51uvs
v. Hand, 831 F. Stipp. 321 (S.D.N.Y. 1993); and Rosa v. Gavnor. 784 F. Supp I (D.
Conn. 1989).
41. Any threat of litigation is false if the defendant rarely, sues consumer debtors or iIthe
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. §I692e(5). 15 U.S.C. §1692e(1(1)_
42. 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.
43. 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.
44. Defendant's letters were intentionally contusing and deceptive. in violation of 15 U.S.C.
§t692e(5) and (10)_ §1692f(8) and §1692,1.
45. Plaintiffwas confused, deceived and believed that litigation was imminent if settlement
was not made.
46. The above mentioned acts with supporting cases demonstrates that the conduct of
defendants rises to the level needed for punitive damages.
47. Defendant, in its collection efforts, violated the FDCPA. inter a/ia. Sections 1692, b, c, d,
e, f, g, h, and/or n.
48. Defendant. in its collection efforts, used false or deceptive acts and intended to oppress
and harass plaintiff.
49. That, as a result of the wrongful tactics of defendants as aforementioned, plaintiff has
been subjected to anxiety, harassment, intimidation and annovance for which
compensation is sought.
WHEREFORE, Plaintiff respectfully requests that his I lonorable 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 Ior anxiety. harassment,
and intimidation directed at him in an amowu not less than Ten Thousand Dollars
($10.000.00). as well as the repetitive nature ofdelendants form letters.
(C) Award Plaintiff costs of this litigation, including a reasonable attornev's fee at a
rate of $3511.00/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
50. Plaintiff hereby incorporates the foregoing as if fully set forth herein.
51. Federal Rule of Civil Procedure, 23, permits a class action i ['certain criteria are met.
52. The FDCPA permits class action, 15 1 I.S.C. § I692k(a)(2)(B).
53. In this case, all defendants charged unlawful interest, fees and/or charges, in violation of
state and federal law.
54. In this case, all defendants failed to comply with Pennsylvania law, 18 Pa.C.S. §7311 et
seq.
55. In this case, defendants' letter contained false, deceptive and misleading statements.
56. This action seeks a declaration that the form of defendants' collection letter violated the
FDCPA
57. This action seeks a declaration that defendants' collection practices violated the FDCPA.
58. The Class consists ol'all persons who received a collection letter identical or similar to
the letters attached as Exhibit A and B.
59. Plaintiff's claims are typical of the claims of the Class.
60. It is unknown how many letters were sent by each defendant, as such, Plaintiff believes
and therefore avers that the number exceeds 100 persons.
61. Common relief is therefore sought on behalf of all members of the Class.
62. This Class Action is superior to other available methods Irn- the fair and efficient
adjudication of this controversy.
63. The prosecution of separate action bN 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 dispositivc 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.
64. 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 FDCPA.
65. Given the nature of defendants' practices. it is likely that other consumers in
Pennsylvania have been harmed by these practices.
66. The law firm of Krevsky & Rosen, located at 1 101 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.
67. This action could be handled as a no-notice class, and is superior to the alternative,
hundreds of Pennsylvania residents tiling separate FDCPA actions.
68. 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 lav<_ failure to secure the proper
authorizations as required by Pennsylvania law and in general. attempting to deceive
Pennsylvania consumers.
69. 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 Ilonorable 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 defcndants' 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. Enterjudgement in favor of Plaintiff and the Class and against Defendants, for
statutory damages. costs and reasonable attorney lees in the amount of $350.00
per hour.
g. Grant such further relief as this Honorable Court deems .ust and proper.
Dated: 2/21/06 By: /s/Deanna
Deanna Lynn Saracco
Attorney for Plaintiff
76 Grecnmont Drive
Lnola, Pennsylvania 17025
Telephone 717-732-3750
Fax 717-728-9498
LmaiI: SaraccoLawca%aol.com
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Filed Electronically
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LAURA RUSSELL,
Plaintiff,
Civil Action No.: Of - 0 c ?( be
VS.
FINANCIAL RECOVERY
SERVICES, INC., and
SHERMAN FINANCIAL
GROUP LLC, LVNV FUNDING
LLC, and RESURGENT
CAPITAL SERVICES, INC.
Defendants.
NOTICE OF REMOVAL OF
ACTION UNDER 28 U.S.C. §
1441(b)
(FEDERAL QUESTION)
TO THE CLERK OF THE ABOVE-ENTITLED COURT:
PLEASE TAKE NOTICE that Defendants Sherman Acquisition
LP, Sherman Financial Group LLC, LVNV Funding LLC and Resurgent
Capital Services LP ("Defendants") hereby removes to this Court the
state court action described below.
1. On or about February 23, 2006, an action was commenced in
the Court of Common Pleas for Cumberland County, Pennsylvania,
captioned Laura Russell v. Financial Recovery Services, Inc. and
Sherman Acquisition LLP and Sherman Financial Group LLC, LVNV
Funding LLC and Resurgent Capital Services, Inc., and assigned Civil
No. 06-1085. A copy of said action is attached hereto.
2. Service of this action upon Defendants was made on March
21, 2006, when Plaintiff served the Summons. This removal is timely.
3. This action is a civil action of which this Honorable Court
has original jurisdiction under 28 U.S.C. § 1331, and is one which may
be removed to this Court by defendants pursuant to 28 U.S.C. § 1441(b)
in that it presents a federal question under 15 U.S.C. § 1692 et seq., the
Fair Debt Collection Practices Act.
4. Plaintiff does not oppose removal.
5. Defendant Financial Recovery Services, Inc., consents to
removal of this matter.
6. A copy of all pleadings, process, orders, and other papers
filed in the state court action are attached hereto.
2
Respectfully submitted,
MARSHALL, DENNEHEY, WARNER
COLEMAN & GOGGIN
ByJ
SHARNNELL, ESQUIRE
I.D. No. 79457
PEGGY M. MORCOM, ESQUIRE
I.D. No. 92463
4200 Crums Mill Road, Suite B
Harrisburg, PA 17112
(717) 651-3517
Attorneys for Defendants
Dated: March 4? 1 2006.
V05 AALIAI3VPMM0RC0MVLLPGA216903\PM MORCOMV 15000A50000
3
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LAURA RUSSELL,
Plaintiff,
V. Civil No.: 0 p- 1095 C i v r I 't t,M
FINANCIAL RECOVERY SERVICES, JURY TRIAL DEMANDED
INC., and SHERMAN ACQUISITION LLP :
and SHERMAN FINANCIAL GROUP LLC,
LVNV FUNDING LLC, and RESURGENT :
CAPITAL SERVICES, INC.,
Defendants.
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 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. §1692, et seq. ("FDCPA"), particularly 15 U.S.C. §1692k(d) and 28 U.S.C.
§1337.
8. Venue lies in this District pursuant to 28 U.S.C. 1391(b).
9. Plaintiff is an individual, residing in Pennsylvania, and consumer pursuant to 15 U.S.C.
§ 1692a(3).
10. Defendant Financial Recovery 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 P. O. Box 385908, Minneapolis, MN 55438-5908.
11. Defendant Sherman Acquisitions LLP, Sherman Financial Group, LLC, LVNV Funding
LLC and Resurgent Capital Services, Inc., are business entity(ies) engaged in the business
of collection debts in this Commonwealth, with its principal place of business located at 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. Defendants are debt collectors as defined by 15 U.S.C. I I692a(6).
13. Defendant, Financial Recovery Services, Inc., sent a letter to Plaintiff, dated January 27,
2006, which is a "communication" relating to a "debt" as defined by 15 U.S.C. I I692a(2).
14. Defendant Sherman et al., acting as principal, caused, directed, controlled and/or
purposefully enabled defendant Financial Recovery Services, Inc., to sent Plaintiff the
letter dated January 27, 2006.
15. Defendant Financial Recovery Services, Inc., letter stated that LVNV Funding LLC
acquired her alleged debt, and Resurgent Capital Services, Inc., placed the alleged debt
with Financial Recovery Services, Inc., for collection.
16. Prior to receipt of the aforementioned letter, agents of defendant, "Angela" contacted
Plaintiff at her place of employment.
17. Plaintiff made it clear that she could not make or receive personal calls at work.
18. During the month of February, 2006, another agent from Financial Recovery Services,
Inc., called Plaintiffs place of employment and discussed her alleged debt with her
employer, a pharmacists.
19. The agent, Vince Hill, asked the pharmacist how long Plaintiff worked at her current job,
how many hours did she work there, how much was her salary, as well as asked other
personal questions.
20. 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.")
21. 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.
22. Plaintiff believes and therefore avers that defendants are adding interest, fees and costs in
violation of state and federal law.
23. Defendant in its collection efforts, demanded interest, fees and/or costs in violation of the
FDCPA, 15 U.S.C. § 1692A 1) and 1692e(2)A and B.
24. The FDCPA 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: (1) 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. §16921(1).
25. The FDCPA 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 ofa debt. 15 U.S.C. §1692e(2)A and B.
26. There was never an express agreement by Plaintiff to pay any additional fees, cost or
interest to Sherman Acquisitions or any of its debt collectors, including defendant
Financial Recovery Services, Inc., and/or Sherman Acquisition LLP, Sherman Financial
LVNV Funding LLC, Resurgent Capital Services, Inc., or any other subsidiary/parent
company of the Sherman/Alegis companies.
27. 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."
28. Plaintiff believes and therefore avers that the defendants do not have proper assignment of
her claim, in violation of Pennsylvania law.
29. 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.
30. 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.
31. 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.
32. 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.
33. The Fair Credit Reporting at, 15 U.S.C. § 1681 b prohibits the improper use of a
consumer's credit information.
34. The FDCPA states, a debt collector may not discuss the consumers alleged debt with a
third party. The Defendant violated this section of the FDCPA.
35. 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.
36. The FDCPA states, it is unlawful to contact the consumer at his or her place of
employment, if the debt collector has reason to know that such calls are prohibited.
Defendant violated this section of the FDCPA.
37. The FDCPA provides certain rights to the consumer regarding her right to dispute the
alleged debt, 15 U.S.C. § 1692g. At no time during the initial communications, the
telephone calls, did the agents of defendant provide Plaintiff with her rights under the law.
Defendant violated this section of the FDCPA.
38. 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. §I692fand §I692e(2)(A) and (B). Defendant violated this section of the
FDCPA.
39. Defendant's collection communications were intentionally confusing, misleading and
otherwise deceptive to the Plaintiffs, in violation of 15 U.S.C. § I692e(5) and (10),
§ 1692f(8) and § 1692j, see also, In re Belile, 208 B.R. 658 (E.D. Pa 1977).
40. 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. 111. 1993); Sluvs
v. Hand, 831 F. Supp. 321 (S.D.N.Y. 1993); and Rosa v. Gaynor, 784 F. Supp 1 (D.
Conn. 1989).
41. 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. §I692e(5), 15 U.S.C. §I692e(10).
42. 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.
43. 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.
44. Defendant's letters were intentionally confusing and deceptive, in violation of 15 U.S.C.
§1692e(5) and (10), §I692f(8) and §1692j.
45. Plaintiff was confused, deceived and believed that litigation was imminent if settlement
was not made.
46. The above mentioned acts with supporting cases demonstrates that the conduct of
defendants rises to the level needed for punitive damages.
47. Defendant, in its collection efforts, violated the FDCPA, inter alia, Sections 1692, b, c, d,
e, f, g, h, and/or n.
48. Defendant, in its collection efforts, used false or deceptive acts and intended to oppress
and harass plaintiff.
49. 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
50. Plaintiff hereby incorporates the foregoing as if fully set forth herein.
51. Federal Rule of Civil Procedure, 23, permits a class action if certain criteria are met.
52. The FDCPA permits class action, 15 U.S.C. § I692k(a)(2)(B).
53. In this case, all defendants charged unlawful interest, fees and/or charges, in violation of
state and federal law.
54. In this case, all defendants failed to comply with Pennsylvania law, 18 Pa.C.S. §7311 et
seq.
55. In this case, defendants' letter contained false,. deceptive and misleading statements.
56. This action seeks a declaration that the form of defendants' collection letter violated the
FDCPA
57. This action seeks a declaration that defendants' collection practices violated the FDCPA.
58. The Class consists of all persons who received a collection letter identical or similar to the
letters attached as Exhibit A and B.
59. Plaintiffs claims are typical of the claims of the Class.
60. It is unknown how many letters were sent by each defendant, as such, Plaintiff believes
and therefore avers that the number exceeds 100 persons.
61. Common relief is therefore sought on behalf of all members of the Class.
62. This Class Action is superior to other available methods for the fair and efficient
adjudication of this controversy.
63. 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 diapositive 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.
64. 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.
65. Given the nature of defendants' practices, it is likely that other consumers in Pennsylvania
have been harmed by these practices.
66. The law firm of Krevsky & Rosen, located at 1 101 North Front Street, Harrisburg,
Pennsylvania, have agreed to enter its appearance as co-counsel to ensure that Plaintiffs
counsel will have adequate resources to represent the class.
67. This action could be handled as a no-notice class, and is superior to the alternative,
hundreds of Pennsylvania residents filing separate FDCPA actions.
68. 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.
69. 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 deemsjust and proper.
Dated: 2/21/06 By: /s/Deanna Lynn Saracco
Deanna Lynn Saracco
Attorney for Plaintiff
76 Greenmont Drive
Enola, Pennsylvania 17025
Telephone 717-732-3750
Fax 717-728-9498
Email: SaraccoLawgaol.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the
foregoing on all counsel of record by placing the same in the United
States mail at Harrisburg, Pennsylvania, first-class postage prepaid, on
the date set forth below, and addressed as follows:
Richard J. Perr, Esquire
30 South 17`n Street
Philadelphia, PA 19103
rperrklmemanl awfirm. com
Deanna Lynn Saracco, Esquire
76 Greenmont Drive
Enola, PA 17025
saraccolaw@aol.com
Prothonotary
Cumberland County Court of Common Pleas
One Courthouse Square
Carlisle, PA 17013
DATE: March 29, 2006
MARSHALL, DENNEHEY, WARNER
COLEMAN & GOOGGIN
BY G !'(x
1IAR(5& .O'DONNELL
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Curtis R. Long
Prothonotary
(OffiCE Of the Vatbonotarp
Cumberfanb Countp
Renee K. Simpson
Deputy Prothonotary
John E. Slike
Solicitor
0/ `" in PS CVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 28TH DAY OF OCTOBER, 2009, 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
One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573