HomeMy WebLinkAbout02-3870NOTICE TO
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
2 Liberty Avenue
Carlisle, PA
717-249-3166
800-990-9108
NOTICIA
Le han demandado a usted en la corte. Si usted quire defenderse de
estas demandas expuetas en las paginas siquientes, usted tiene viente (20)
dias de plazo al partir de la fecha de la excrita o en persona o pot abogado y
archivar en la corte en forma excrita sus defensas o sus objectiones a las
demande, la corte tomara medidas y puede entrar una orden contra usted sin
previo aviso o notificacion y por cualquier queja o alivio que es pedido en la
peticion de demanda. Usted puede perder dinero o sus propiedades o otros
derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO0 SI
NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICION, VAYA EN PERSONA O LLAME
POR TELE~'ONO A LA OFICINA CUYA DIRECCiON SE ?UEDECONSEGUIR ASISTENCIA LEGAL.
P. L. RAWLS,
V.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff CASE NO.:
POWELL, ROGERS & SPEAKS, 1NC.
Defendant.
COMPLAINT
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).
Plaintiff is an individual and consumer pursuant to 15 U.S.C. § 1692a(6).
Defendant is a business entity and/or law firm engaged in the business of collecting debts
in this Commonwealth with its principal place of business located at P. O. Box 61107,
Harrisburg, Pennsylvania, 17106.
Defendant is a debt collector(s) pursuant to 15 U.S.C. § 1692a(6).
Defendant sent the attached letter, dated May 24, 2002, to Plaintiff, which is a
"communication(s),, relating to a "debt" as defined by 15 U.S.C. 11692a(2) and 1692a(5).
At all pertinent times hereto, the defendant was hired by Giant Food Stores, to collect an
alleged debt relating to a consumer transaction. (Hereinafter the "alleged debt.")
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.
10. At ail times pertinent hereto, Plaintiff believed that the defendant was a law firm.
11. On or about May 24, 2002, Defendant sent a letter to Plaintiff, via United States Mail,
demanding payment in full, said letter grossly overshadowed the FDCPA, threatened
litigation and was otherwise deceptive, faise, misleading and confusing to Plaintiff.
12. At ail times pertinent hereto, Plaintiff believed that litigation was imminent.
13. The letter indicated that Plaintiff allegedly owed $232.79.
14. Plaintiff believes and therefore avers that she did not owe the defendant $232.79.
15. Plaintiff further believes and therefore avers that she paid in full, everything that was due
and owing to the originai creditor.
16. Defendant's letter contains language which would lead the least sophisticated consumer
to believe that a law firm was handling her case.
17. Defendant's letter was intentionaily confusing, misleading and otherwise deceptive to the
Plaintiff, in violation of 15 U.S.C. §1692e(5) and (10), §1692f(8) and §1692j, see also, ~
~, 208 B.R. 658 (E.D. Pa 1977).
18. Defendant's use of certain legal terms in its initial communication and subsequent
communications were simply a tactic to create and did create a false sense of urgency on
the past of Plaintiffin violation of the FDCPA. T_Tolentino v. Friedman, 833 F. Supp. 697
(N.D. Ill. 1993); S. Sluys v. Hand, 831 F. Supp. 321 (S.D.N.Y. 1993); and R_Rosa v. Gaynor,
784 F. Supp 1 (D. Conn. 1989).
19. Defendant is a collection agency, not a law firm, but designed its letterhead to be
deceptive, misleading and confusing to the least sophisticated consumer.
20.
21.
22.
23.
Any threat of threat of litigation was false because defendant never intended to sue
Plaintiff, in particular for such a nominal amount.
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).
Defendant's letter violated the FDCPA by overshadowing the 30-day notice. 15 U.S.C.
§1692g(4) and (5).
24. Defendant's letter was false, deceptive, misleading and unfair in that they used letterhead
and terms to imply that they were a law firm for the sole purpose so as to intimidate and
coerce Plaintiff into paying the alleged debt.
25. Consumer debtors are harmed by this tactic.
26. Plaintiff believes and therefore avers that defendants do not routinely file suit against
consumers debtors for such nominal amounts.
27. Defendant knew or should have known that its letters violated the FDCPA.
28. Collection letters purporting to be from an attorney violates the FDCPA, 15 U.S.C.
§§1692e(3) and e(10), Youne v. Citicorp_ Retail Svcs., 159 F.3d. 1349 (2d Cir. 1998).
29. Defendant failed to inform Plaintiff that she could make partial payments, said act is
deceptive, confusing and misleading and in violation of 15 U.S.C. § 1692h.
30. The Third Circuit stated, "Where specific action is threatened for nonpayment, the least
sophisticated debtor might feel that he has no other option but to pay, in which case, such
threats have been found to overshadow the validation notice and cause the debtor to
overlook his statutory right to dispute the debt." ~, 225 F.3d 350,
FN6 (3d. Cir. 2000.)
31. Defendant's collection contacts were intentionally confusing and deceptive, in violation
of15 U.S.C. §1692e(5) and (10), §1692f(8) and § 1692j.
32. The FDCPA applies to obligations and alleged obligations.
33. Defendant alleged that Plaintiff owed an obligation to one of its clients for the purchase
of personal/household/consumer goods.
34. The FDCPA defines debt very broad, as an obligation, which is not specific as compared
to the definitions of credit contained in other subsections of the Troth in Lending Act.
35. A check is covered under the FDCPA. See, Charles v. Lundgren & Associates. p. C. et
al., 119 F.3d 739 (gth Cir. 1997); Bass v. Stolper. Koritzinsky. Brewster & Neider, et aL,
111 F.3d 1322, (7~ Cir. 1997); Snow v. Riddle, P. C,, No. 97-4045 (10w Cir. 1998); and
Duffv v. Landbem. et al., No. 97-1560 (8th Cir. 1998).
36. Defendant, in its collection efforts, demanded return check fees in violation of
Pennsylvania law, 18 Pa.C.S. §4105(e)(3), and a violation of state law is a violation of the
FDCPA.
37.
38.
Defendant, in its collection efforts, demanded return check fees in violation of the
FDCPA, 15 U.S.C. §1692f(1) and 1692e(2)A and B.
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. § 1692f(1).
39. 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 of a debt. 15 U.S.C. § 1692e(2)A and B.
40. There was never an express agreement by Plaintiff to pay any additional fees.
41. Pennsylvania law permits a $20.00 fee, upon conviction.
42. There was no conviction in this case.
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 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.
45. The above mentioned acts with supporting cases demonstrates that the conduct of
defendant rises to the level needed for punitive damages.
46. Plaintiff is entitled to punitive damages for the improper use of the letterhead, the
language contained in its communications and the continuous and repetitive nature of the
violations under the FDCPA.
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 defendant 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 her behalf and against defendant and issue an Order:
(A) Award Plaintiff statutory damages in the amount of One Thousand Dollars
($1,000.00) from each defendant for each violation of the FDCPA or each
separate and discrete incident in which defendant violated the FDCPA. Kashak
Raritan Valley Collection Agency,. F. Supp.. _(D.N.J. May 23, 1989), and
Rabideau v. Management Adjustment Burem!. 805 F. Supp. 1086, 1095
(W.D.N.y. 1992).
(B) Award Plaintiff general damages and punitive damages for anxiety, harassment,
and intimidation directed at her in an amount not less than Ten Thousand Dollars
($10,000.00), from each defendant, for the egregious, continuous and the
repetitive nature of defendants form letters.
(C) Award Plaintiff costs of this litigation, including a reasonable attorney's fee at a
rate of $200.00/hour for hours reasonably expended by her attorney in vindicating
her rights under the FDCPA, as 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.
50.
51.
COUNT II
Plaintiff hereby incorporates the foregoing as if fully set forth herein.
Defendant is liable under the Pennsylvania Fair Credit Extension Uniformi _ty Ac!., 73 P.
S. §2270.1, et seq.
52.
That all of the conduct of defendant described in Count I of this Complaint also violated
this Count II.
53.
That defendant engaged in unfair methods of competition and unfair or deceptive acts or
practices.
54. Defendant acted as described herein were done w/th malicious, intentional, willful,
reckless, negligent and wanton disregard for Plaintiff's rights with the purpose of
coercing Plaintiff to paying additional costs and fees.
55. 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 defendant as stated above.
Dated: 7/31/2002
By:
a Lynn Smith
Attorney for Plaintiff
76 Greenmont Drive
Enola, Pennsylvania 17025
Telephone 717-732-3750
SMITHDELYN~AOL.COM
Fax 727-728-9498
P. L. RAWLS,
Plaintiff,
POWELL ROGERS & SPEAKS, INC.
Defendant,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
Civil Action No.: 02-3870
IMPORTANT NOTICE
TO:
J. CHAD MOORE, ESQUIRE
POWELL ROGERS & SPEAKS
ONE FISHER STREET
HALIFAX, PA 17032
DATE OF NOTICE: OCTOBER 31. 2002
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN
APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE
COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST
YOU. UNLESS YOU ACT WITHIN TE 10N._L!_~_D_AX_S_ FROM THE DATE OF THIS NOTICE,
A JUDGEMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU
MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE
THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR
CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND
OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA
717-249-3166
800-990-9108
Deanna Lynn Smith
76 Greemont Drive
Enola, PA 17025
(717) 732-3750
Attorney for Plaintiff
No. 77414
P. L. RAWLS,
Plaintiff,
POWELL ROGERS & SPEAKS, 1NC.
Defendant,
TO:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
Civil Action No.: 02-3870
NOTICE TO WITHDRAW WITHOUT PREJUDICE
PROTHONOTARY OF SAID COURT
Please withdraw the above captioned matter, without prejudice. No Answer or other
motion has been filed by the defendant therefore, the Action may be withdrawn, without
prejudice, with the right of Plaintiff to bring her cause of action against, if she chooses.
12/4/02
De'anna Lynn Smith
76 Greenmont Drive
Enola, PA 17025
(717) 732-3750
Attorney for Plaintiff
No. 77414