FRANCIS & MAILMAN, P.C.
BY: MARK D. MAILMAN, ESQUIRE ATTORNEYS FOR PLAINTIFF
I.D. No. 77760
BY: JOHN SOUMILAS, ESQUIRE
I.D. No. 84527
Land Title Building, 19th Floor
100 South Broad Street
Philadelphia, PA 19110
(215) 735-8600
________________________________________________________________________
:
SEENA ROSENBERRY : COURT OF COMMON PLEAS
1732 S. Dover Street : OF PHILADELPHIA COUNTY
Philadelphia, PA 19145 :
:
:
vs. : NO.
:
CONSUMER RECOVERY :
ASSOCIATES, INC. :
2697 International Parkway :
Virginia Beach, VA 23452 :
______________________________________________________________________________
COMPLAINT IN CIVIL ACTION
1. Plaintiff Seena Rosenberry is an adult individual residing at 1732 S. Doyer Street, Philadelphia, PA 19145.
2. Defendant Consumer Recovery Associates, LLC is a business entity regularly engaged in the business of collecting debts in this Commonwealth with its principal place of business located at 2697 International Parkway, Virginia Beach, VA 23452. The principal purpose of Defendant is the collection of debts using the mails and telephone, and Defendant regularly attempts to collect debts alleged to be due another.
3. At all times pertinent hereto, Defendant was hired by Fleet to collect a debt relating to consumer purchases that were allegedly originally owed to Fleet (hereafter the “debt”).
4. The debt at issue arises out of an alleged transaction which was primarily for personal, family or household purposes.
5. At all times pertinent, Plaintiff’s sister, Joan Miller (hereafter “Ms. Miller”), was solely responsible for the debt.
6. At all times pertinent, Ms. Miller had filed for bankruptcy which was discharged. The underlying Fleet debt was among the debts included in said bankruptcy.
7. Notwithstanding both the above and that Defendant knew or should have known that Plaintiff did not have an account or business relation of any kind with it, on or about April 20, 2008, Defendant accessed Plaintiff’s credit files and information, as maintained by Experian Information Solutions, Inc., impermissibly and through the use of false pretenses, without Plaintiff’s consent or knowledge, without legitimate business reason to do so and then never informed Plaintiff of these illegal and impermissible accesses.
8. On or about April 21, 2008, a representative, employee and/or agent from Defendant identifying herself as “Ms. Scott” contacted Ms. Miller at her place of residence in an attempt to coerce Plaintiff’s payment of the debt, with the intent annoy, abuse, and harass such persons contacted. During a message on Ms. Miller’s voicemail, Ms. Scott indicated she was calling regarding Plaintiff and indicated Plaintiff was in “serious trouble.” Additionally, Ms. Scott stated that if Ms. Miller was not comfortable returning her call, she should have Plaintiff’s attorney or legal representative return her call.
9. Notwithstanding the above, on or about April 21, 2008, Ms. Scott contacted Plaintiff’s acquaintance, Judy Woodhouse, at her place of residence in an attempt to coerce Plaintiff’s payment of the debt, with the intent annoy, abuse, and harass such persons contacted, as well as Plaintiff. During the conversation, Ms. Scott warned Ms. Woodhouse that Plaintiff needed to contact her immediately regarding a “serious matter.” Ms. Scott also contacted Mrs. Woodhouse’s daughter, Tara Woodhouse, seeking to collect the debt from Plaintiff.
10. Notwithstanding the above, on or about April 21, 2008, Ms. Scott contacted Nicole Albert, Plaintiff’s tenant, at her place of residence in an attempt to coerce Plaintiff’s payment of the debt, with the intent annoy, abuse, and harass such persons contacted, as well as Plaintiff. During a message on Ms. Albert’s voicemail, Ms. Scott warned Plaintiff that Plaintiff needed to contact her immediately regarding a legal matter.
11. Following the above, on or about April 21, 2008, upon receiving messages of the above contacts, Plaintiff contacted Ms. Scott. During the call, Plaintiff was transferred to a representative, employee and/or agent from Defendant identifying himself as “Mr. Miller.” Mr. Miller immediately threatened to place Plaintiff in jail for the debt, as well as to confiscate her possessions and place the debt on Plaintiff’s credit reports. When Plaintiff protested the debt did not belong to her, Mr. Miller implied that unless Plaintiff had sued Ms. Miller for fraud, the debt was Plaintiff’s responsibility. Mr. Miller then badgered Plaintiff to settle the debt. When Plaintiff indicated she wished to speak to an attorney first, Mr. Miller stated that an attorney could not help her since she did not sue her sister for fraud. Mr. Miller then threatened to place a judgment against Plaintiff’s house if she did not pay the debt with her credit card. Mr. Miller went on to state that “no judge would side” with Plaintiff, and that, following the lawsuit, Plaintiff would also incur Defendant’s legal fees. Plaintiff again disputed the debt, indicating it was her sister’s and had been included in her sister’s bankruptcy. Notwithstanding her disputes, Plaintiff, both frightened and pressured, made a payment to Defendant
of $9,000 on her credit card over the telephone. Mr. Miller indicated that any attempt to stop the payment would result in legal action against her.
12. Notwithstanding the above, on or about April 23, 2008, Defendant charged Plaintiff’s credit card for a total of $9,091.67.
13. The Defendant acted in a false, deceptive, misleading and unfair manner toward Plaintiff by accessing Plaintiff’s Experian credit report without a permissible purpose.
14. Defendant acted in a false, deceptive, misleading and unfair manner toward Plaintiff by falsely representing the amount, character or legal status of a debt.
15. The Defendant acted in a false, deceptive, misleading and unfair manner when it communicated with persons other than the debtor, making such communications on multiple occasions.
16. The Defendant acted in a false, deceptive, misleading and unfair manner by threatening to take action that it could not take or did not intend to take for the purpose of coercing Plaintiff to pay the debt, including but not limited to threatening to: sue Plaintiff; place the debt on Plaintiff’s credit reports; and place Plaintiff in prison.
17. The Defendant acted in a false, deceptive, misleading and unfair manner by charging $9,091.67 to Plaintiff’s credit card notwithstanding the fact that the debt was not her responsibility and had been discharged in Mr. Miller’s bankruptcy.
18. Defendant knew or should have known that its actions violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. ( “FDCPA”), the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., as amended, the Pennsylvania Fair Credit Extension Uniformity Act, 73 P.S. § 2270.1 et seq. (hereafter the “FCEUA”), and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1, et seq. (“CPL”). Additionally, Defendant could have taken the steps necessary to bring their actions within compliance with the FDCPA, FCRA, FCEUA and the UTPCPL, but neglected to do so and failed to adequately review their actions to insure compliance with said laws.
19. At all times pertinent hereto, 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 Defendant herein.
20. At all times pertinent hereto, the conduct of Defendant, as well as that of its 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.
21. As a result of Defendant’s conduct, Plaintiff has sustained actual damages including, but not limited to, injury to Plaintiff’s reputation, out-of-pocket expenses, emotional and mental pain and anguish and pecuniary loss, and Plaintiff will continue to suffer same for an indefinite time in the future, all to Plaintiff’s great detriment and loss.
COUNT I – VIOLATION OF THE FDCPA
22. Plaintiff incorporates the foregoing paragraphs as though the same were set forth
at length herein.
23. Defendant is a “debt collector” as defined by 15 U.S.C. § 1692a(6) of the FDCPA.
24. Plaintiff is a “consumer” as defined by 15 U.S.C. § 1692a(3) of the FDCPA.
25. The above contacts made by Plaintiff and Defendant were “communications” relating to a “debt” as defined by 15 U.S.C. § 1692a(2) and 1692a(5) of the FDCPA.
26. Defendant violated the FDCPA. Defendant’s violations include, but are not limited to, violations of 15 U.S.C. §§ 1692b(2), 1692b(3), 1692c(b), 1692d, 1692d(5), 1692e, 1692e(2)(A), 1692e(4), 1692e(5), 1692e(7), 1692e(8), 1692e(10) and 1692f, as evidenced by the following conduct:
(a) Communicating with persons other than Plaintiff that Plaintiff owes a
debt;
(b) Communicating with persons other than Plaintiff on more than one occasion;
(c) Communicating, in connection with the collection of a debt with persons other than Plaintiff;
(d) Engaging in conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt;
(e) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number;
(f) The false representation of the amount, character or legal status of a debt;
and
(g) The representation or implication that nonpayment of a debt will result in the will result in the seizure, garnishment, attachment or sale of any
property or wages is not lawful and/or that the Defendant did not intend to
take;
(h) Threatening to take action that cannot legally be taken and/or is not
intended to be taken; and
(i) Falsely representing or implying that the consumer has committed a crime;
(j) Communicating or threatening to communicate to any person credit
information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed; and
(k) Otherwise using false, deceptive or misleading and unfair or
unconscionable means to collect or attempt to collect a debt.
27. Defendant’s acts as described above were done with malicious, intentional, willful, reckless, wanton and negligent disregard for Plaintiff’s rights under the law and with the purpose of coercing Plaintiff to pay the alleged debt.
28. As a result of the above violations of the FDCPA, Defendant is liable to Plaintiff in the sum of Plaintiff’s actual damages, statutory damages, and attorney’s fees and costs.
WHEREFORE, Plaintiff respectfully prays that relief be granted as follows:
(a) That judgment be entered against Defendant for actual damages pursuant to 15 U.S.C. § 1692k(a)(1);
(b) That judgment be entered against Defendant for statutory damages pursuant to 15 U.S.C. § 1692k(a)(2)(A);
(c) That the Court award costs and reasonable attorney’s fees pursuant to 15 U.S.C. §1692k(a)(3); and
(d) That the Court grant such other and further relief as may be just and proper.
COUNT II: VIOLATIONS OF THE FCRA
35. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein.
36. Pursuant to section 1681n and 1681o of the FCRA, Defendant willfully and/or negligently violated the FCRA by engaging in the following conduct:
(a) obtaining a consumer report from a consumer reporting agency under false pretenses or knowingly without a permissible purpose in violation of sections 1681n(b) and 1681q; and
(b) falsely certifying to a consumer reporting agency that Defendant had a permissible purpose to obtain a consumer report and impermissibly accessing Plaintiff’s consumer in violation of section 1681b.
37. Defendant’s conduct was a direct and proximate cause, as well as a substantial
factor, in causing the serious injuries, damages and harm to the Plaintiff that are outlined more fully above, and as a result, Defendant is liable to compensate Plaintiff for the full amount of statutory, actual and punitive damages, along with attorneys’ fees and costs, as well as such other relief, permitted by law.
COUNT III: VIOLATIONS OF THE UTPCPL
38. Plaintiff incorporates the foregoing paragraphs as though the same were set forth
at length herein.
39. Defendant is a “debt collector” as defined by 73 P.S. § 2270.3 of the FCEUA.
40. Plaintiff is a “debtor” as defined by 73 P.S. § 2270.3 of the FCEUA.
41. The above contacts made between the Plaintiff and Defendant were “communications” relating to a “debt” as defined by 73 P.S. § 2270.3 of the FCEUA.
42. Defendant engaged in unfair methods of competition and unfair or deceptive acts or practices, as defined by the UTPCPL, by attempting to collect the alleged debt in violation of the FCEUA. Defendant’s violations of the FCEUA and UTPCPL include, but are not limited to, violations of 73 P.S. § 2270.4(a), as evidenced by the following conduct:
(a) Communicating with persons other than Plaintiff that Plaintiff owes a debt;
(b) Communicating with persons other than Plaintiff on more than one occasion;
(c) Communicating, in connection with the collection of a debt with persons other than Plaintiff;
(d) Engaging in conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt;
(e) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number;
(f) The false representation of the amount, character or legal status of a debt;
(g) The representation or implication that nonpayment of a debt will result in the will result in the seizure, garnishment, attachment or sale of any property or wages is not lawful and/or that the Defendant did not intend to take;
(h) Threatening to take action that cannot legally be taken and/or is not
intended to be taken;
(i) Falsely representing or implying that the consumer has committed a crime;
(j) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed; and
(k) Otherwise using false, deceptive or misleading and unfair or
unconscionable means to collect or attempt to collect a debt.
43. Defendant’s acts as described above were done with malicious, intentional, willful, reckless, wanton and negligent disregard for Plaintiff’s rights under the law and with the purpose of coercing Plaintiff to pay the alleged debt.
44. As a result of the above violations of the FCEUA and UTPCPL, Plaintiff has suffered ascertainable losses entitling Plaintiff to an award of actual, statutory and treble damages and attorney’s fees and costs.
WHEREFORE, Plaintiff respectfully pray that relief be granted as follows:
(a) That judgment be entered against Defendant for actual damages pursuant to 73 P.S. § 201-9.2(a);
(b) That judgment be entered against Defendant for statutory damages pursuant to 73 P.S. § 201-9.2(a);
(c) That judgment be entered against Defendant for treble damages pursuant to 73 P.S. § 201-9.2(a);
(d) That the court award costs and reasonable attorney’s fees pursuant to 73 P.S. § 201-9.2(a); and
(e) That the Court grant such other and further relief as may be just and proper.
COUNT IV: NEGLIGENCE
45. Plaintiff incorporates the foregoing paragraphs as if the same were set forth at length herein.
45. Defendant’s negligence consists of the following:
(a) Violating the FDCPA as set forth above;
(b) Violating the FCRA as set forth above;
(c) Violating the CPL as set forth above; and
(d) Failing to employ reasonable procedures to ensure that the Plaintiff was the responsible debtor before charging Plaintiff’s account for the debt.
46. As a result of Defendant’s above mentioned conduct, Plaintiff sustained and continues to sustain the losses and damages as set forth above.
47. The conduct of Defendant was a direct and proximate cause, as well as a substantial factor, in bringing about the serious injuries, damages and harm to Plaintiff that are outlined more fully above.
WHEREFORE, Plaintiff claims compensatory and punitive damages against the Defendant and judgment in her favor in an amount in excess of fifty thousand dollars ($50,000.00), plus lawful interest thereon. The sum sued upon is in excess of that requiring submission to Arbitration.
COUNT V: INTENTIONAL MISREPRESENTATION
48. Plaintiff incorporates the foregoing paragraphs as if the same were set forth at length herein.
49. Defendant falsely represented to Plaintiff: that she owed the debt; that she would be placed in prison if she did not pay the debt; that she would incur additional expenses if she did not pay the debt; and that it would charge exactly $9,000.00 on Plaintiff’s credit card in order for Plaintiff to avoid the above consequences.
50. In making the above representations, it was Defendant’s intention to mislead Plaintiff as to the consequences if she did not pay the debt.
51. Plaintiff was justified in her reliance upon Defendant’s representations when she paid the debt.
52. Defendant’s representation was the sole reason Plaintiff paid the debt.
53. As a result of Defendant’s above mentioned conduct, Plaintiff sustained and continues to sustain the losses and damages as set forth above.
54. The conduct of Defendant was a direct and proximate cause, as well as a substantial factor, in bringing about the serious injuries, damages and harm to Plaintiff that are outlined more fully above.
WHEREFORE, Plaintiff claims compensatory and punitive damages against the Defendant and judgment in her favor in an amount in excess of fifty thousand dollars ($50,000.00), plus lawful interest thereon. The sum sued upon is in excess of that requiring submission to Arbitration.
RESPECTFULLY SUBMITTED,
FRANCIS & MAILMAN, P.C.
BY: ____________________________
MARK D. MAILMAN, ESQUIRE
JOHN SOUMILAS, ESQUIRE
ATTORNEYS FOR PLAINTIFF
Dated: September 5, 2008