My Sample Complaint - Please look and comment

[jaylon]

IN THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA


JAYLON,

Plaintiff

V

SHERMAN ACQUISITION LP,

Defendant


JURISDICTION

1. This action containing complaints for declaratory relief and for damages is brought against the defendant to secure due process of law, equal protection and other rights.

PARTIES

2. Plaintiff has a legal residence of , Philadelphia, Pennsylvania.

3. Defendant Sherman Acquisition LP is, upon information and belief, a limited partnership headquartered in Greenville, South Carolina, but does not have authorization to engage in business in Pennsylvania, and does not have a registered agent for service of process in Pennsylvania, but has engaged in business in Pennsylvania nonetheless.

FACTS

4. Defendant mailed Plaintiff a presentment alleging Plaintiff had an outstanding debt, Plaintiff had no prior knowledge of a business agreement/relationship with defendant. (Exhibit A)

5. As is Plaintiff’s lawful right pursuant to Federal Law and in accordance with the Fair Debt Collection Practices Act, 15 USC §1692g, Plaintiff sent via United States Postal Service Certified Mail, correspondence requesting formal debt validation. This letter was sent on February 22, 2005 and signed for by Defendant’s office on February 25, 2005, well within the 30-day period expressly provided by the FDCPA. (Exhibit B validation letter send to Defendant)(Exhibit C proof of delivery to Defendant)

6. Defendant failed to respond with any type of requested validation.

7. On March 16, 2005, in a good faith effort to allow Defendant ample opportunity to validate the alleged debt, sent a second letter via certified mail, which was signed for by the Defendant’s Legal Counsel on March 19, 2005. (Exhibit D letter from Defendant’s Legal Counsel)(Exhibit E second letter sent to Defendant)(Exhibit F proof of delivery to defendant)

8. Defendant again failed to respond.

9. On April 4, 2005 Plaintiff filed a formal complaint with the Federal Trade Commission for relief of injuries and Defendant’s blatant disregard for Federal Law. In good faith, Plaintiff sent Defendant a copy of formal complaint. (Exhibit G complaint letter to FTC)

10. On April 19, 2005, in a good faith effort to allow Defendant ample time to correct Defendant’s commercial dishonor of Plaintiff’s request for verification, Plaintiff sent a third letter to Defendant in an attempt to settle and resolve this issue, via certified mail, which was signed for by Defendant’s office on April 22, 2005. (Exhibit H third letter sent to Defendant)(Exhibit I proof of delivery)

11. Defendant again failed to respond.

12. Because of Defendant’s blatant disregard for the Plaintiff’s rights as allowed by the FDCPA and FCRA, the Defendant has hampered the Plaintiff’s ability to obtain credit and by so doing is causing irreparable injury to Plaintiff. These actions on the part of Defendant also demonstrate a willful disregard for federal law and constitute a blatant attempt to injure or ruin the credit rating of Plaintiff since Defendant has demonstrated an inability to validate the alleged debt and subsequently attempted to coerce payment.

LEGAL CLAIMS

13. The actions of the Defendant were/are a violation of law as follows:

A. Fair Credit Reporting Act Section 623
Fine: $1,000.00
Plaintiff disputed alleged debt and Defendant failed to report it as disputed to credit bureaus

B. Fair Debt Collections Practices Act Section 809(b)
Fine: $1,000.00
Plaintiff disputed alleged debt, Defendant failed to validate alleged debt, however Defendant continued to pursue collection efforts violating Plaintiff’s consumer protection rights afforded by the FDCPA.

C. US Court of Appeals, Ninth Circuit, No. 00-15946, Nelson vs. Chase Manhattan
Fine: Extent of damages incurred by wronged party as deemed by the courts
Defendant reported Plaintiff’s credit history inaccurately resulting in financial injury and defamation of character.

D. Title 18, SEC 1001, U.S. Code -
“[W]homever … knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact; [or] makes any false, fictitious or fraudulent statements or representation … Shall be fined or imprisoned not more than (5) five years, or both.”
Defendant knowingly and willfully falsified a presentment to trick Plaintiff and to steal Plaintiff’s equity. Defendant also created and mailed Plaintiff a fictitious affidavit of debt, (Exhibit J) which is false and irrelevant to the subject matter because Defendant has no first hand knowledge of Plaintiff’s personal business dealings.

RELIEF REQUESTED

14. Plaintiff’s cost of this action.

15. Damages in the amount of $2000.00 compensatory and $10,000 punitive.

16. Permanent removal of all Defendant’s collection account trade lines from Plaintiff’s files with all credit reporting agencies public and private along with proof will be permanently barred, also proof that this account will not be sold or transferred to another company.

AFFIDAVIT

Introductory Certification

Jaylon, the Undersigned Affiant, hereinafter “Affiant,” does hereby solemnly swear, declare, and state as follows:

17. Affiant is competent to state the matters set forth herewith.

18. Affiant has personal knowledge of the facts stated herein.

19. All the facts stated herein are true, correct, and complete in accordance with Affiant’s best firsthand
knowledge and understanding, and if called upon to testify as a witness Affiant shall so state.

Plain Statement of Facts

20. Affiant has neither seen, nor been presented with, any evidence and likewise any material fact, that demonstrates that Affiant did not, on February 22, 2005, send by the United States Postal Service, written communication to Sherman Acquisition requesting validation of alleged account number 660457752914.”

21. Affiant has neither seen, nor been presented with, any evidence, and likewise any material fact, that demonstrates Sherman Acquisition will provide Affiant with the requested “Validation,” and Affiant believes that it is not Sherman Acquisition’s intent to do so.

22. Affiant has neither seen, nor been presented with, any evidence, and likewise any material fact, that demonstrates that Sherman Acquisition is in possession of the requested “Validation”, and Affiant believes that none exists.

23. Affiant has neither seen, nor been presented with, any evidence, and likewise any material fact, that demonstrates that Affiant is in possession of the requested “Validation”, and Affiant believes that none exists. Affiant also has neither seen, nor been presented with any evidence that Sherman Acquisition has any first hand knowledge that Affiant received the alleged Sears card in question nor any first hand knowledge that Affiant used alleged card in question.

24. Affiant has neither seen, nor been presented with, any evidence, and likewise any material fact, that demonstrates that Sherman Acquisition’s relaying of unverified and uncertified records regarding Affiant does not harm the character of Affiant, both in Affiant’s business, and Affiant’s financial business, both public and private.

25. Affiant has neither seen, nor been presented with, any evidence, and likewise any material fact, that demonstrates that Sherman Acquisition’s continued relaying of unverified and uncertified records regarding Affiant is not cause for tort claims against Sherman Acquisition by Affiant for damages caused by Sherman Acquisition.

26. Affiant has neither seen, nor been presented with, any evidence, and likewise any material fact that Sherman Acquisition has any firsthand knowledge of anything regarding Affiant’s personal business affairs, nor any evidence that Sherman Acquisition is not a third party debt collector that has purchased evidence of debt, and that Sherman Acquisition not guilty of theft and/or guilty of attempting identity theft wherein they used the United States Mail in an attempt to create a legal disability where none existed.

Verification

27. The Undersigned Affiant, Jaylon, does herewith swear, declare, and affirm that Affiant issues this Affidavit of Fact with sincere intent, that Affiant is competent to state the matters set forth herein, that the contents are true, correct, complete, and certain, admissible as evidence, and reasonable and just in accordance with Affiant’s best firsthand knowledge and understanding.

Exodus 20:15; 16

Further Affiant Saith Naught.

This Affidavit of Fact is dated the Thirty-First Day of the Fifth Month in the Year of our Lord Two Thousand Five.


______________________________________
Jaylon



ACKNOWLEDGEMENT


On this _____ day of ______________ 2005, before me, a Notary Public, personally appeared _______________________, personally known to me or has provided requisite proof as the living soul whose name is subscribed to this instrument and acknowledged that he executed the same.




Notary Signature (Seal)

[charlesa6]

Well structure,written, and codefield. It look ok to me, other my chime in for their own opinion.

[jaylon]

Charlesa6,

Thank you for your input. This is my first time being a plaintiff and I want to get as much support as I can to make sure I'm doing thing the write way. I have been reading numerous publications, and all are very thorough in their explanations. It's nothing like duplicating success though, and that is my aim by asking those who have already been there and done that. Thanks a lot, I will be sure to let everyone know how things turn out.

[KITCHIE]

Jaylon you are very brave!!!

A little formatting stuff.

Up at the top in the right hand corner you need to put you name address and phone. Under that put in italics In Propria Personea. Usually in most courts you start the Caption of what court it is in on line 6. If it is 28 lines per page set you Paragraph spacing at "Exactly pt. 23.25. top Margin is .9" left margin is 1.5" right margin .5" and bottom margin .7".

Right under the caption you should Identigy who your are. Example: COMES NOW the Plaintiff, a natural human being with power of attorney-in-fact, Katherine-Elizabeth: Snedigar (hereafter Snedigar), making a special and not a general appearance, appearing in Propria Personae and Sui Juris, demanding all of her rights at all times, waiving none of her rights at any time for any reason. Snedigar who is unschooled in law and asks that the court take Judicial Notice of the enunciation of principles as stated in Haines v. Kerner, 404 U.S. 519, wherein the court has directed that those who are unschooled in law making pleadings and/or complaints shall have the court look to the substance of the pleadings rather than the form, and also hereby makes the attached memorandum, including the related documents attached herewith, in the above-referenced case. Furthermore, Snedigar hereby requests the judge notify her of any sua sponte, rights or remedies she may overlook. (sua sponte is "on it's own will or motion" so you are telling the judge on your own will if I missed any remedies or rights fix it for me.)

Jurisdiction should read

This court has personal jurisdiction over Sherman pursuant to (put all the statutes here about doing business in PA) and subject matter jurisdiction.

Next you want to tell the court it is in the right venue. So that should be something like The venue is right because the action arose in the state of PA under (put federal law here that describes why it's federal).

If you go to State of Minnesota v JBC and Associates. This case lays out how it should be exactly. I would highly reccomend you use that site as your model.

I think you content is very good. You should keep in mind that you are telling the court a story about what happened to you so you want to tell the judge every little thing they did and how the Statutes and USC applies. Just as the AG from Minnesota did.

Other than those little things I think the more you work on it the more refined it will be and the atorney who comes up against you is in for a giant surprise!!

Kitchie

[PANICPASS]

Here's a sample Title 15 lawsuit you may want to look at before you take the plunge:


OMPLAINT FOR CIVIL PENALTIES, INJUNCTIVE, AND OTHER RELIEF

1. Plaintiff brings this action under Section 814 of the Fair Debt Collection Practices Act (“FDCP Act”), 15 U.S.C. §§ 1692 et seq., to obtain monetary civil penalties and injunctive relief for the Defendants’ violations of the FDCP Act.

JURISDICTION AND VENUE

2. This Court has jurisdiction over the action pursuant to 15 U.S.C. § 1692k(d).


3. Pursuant to 28 U.S.C. §1391(b), venue is proper in this Court since a substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in this District (or in the State of _________________________). Additionally, due to their contacts as alleged in this Complaint, Defendant corporation effectively resides in this District and is subject to the personal jurisdiction of this Court.

DEFENDANTS

4. Defendant MONSTROUS MORTGAGE COMPANY, INC. is a _________________ (Delaware?) corporation with its principal office and place of business located at ________________________________. At all times herein mentioned, Defendant has transacted business in the State of ________________ (or within this judicial District)


5. At all times herein mentioned, Defendants and each of them are continuously and consistently engaged in activities which qualify them as a “debt collector” as defined in Section 803(5) of the FDCP Act, 15 U.S.C. §1692a(5).

6. The term “consumer” as used in this Complaint means any natural person obligated or allegedly obligated to pay any debt, as “debt” is defined in Section 803(3) of the FDCP Act, 15 U.S.C. § 1692a(3).

7. Defendant NASTY NERDLY is sued herein in his individual capacity because he personally engaged in debt collection activities and is therefore a “debt collector” within the meaning and purpose of the FDCP Act, 15 U.S.C. §§1692 et seq.

8. Plaintiff is informed and believes and thereon alleges that each of the Defendants was and is the agent, servant and employee of his remaining co-defendants and in doing the things herein alleged, was acting within the scope of said agency and employment.

FAIR DEBT COLLECTION PRACTICES ACT

9. In 1977, Congress passed the FDCP Act, 15 U.S.C. §§ 1692 et seq., which became effective on March 20, 1978, and has been in force ever since. Congress has imposed strict procedures for all “debt collectors” attempting to collect a debt in dispute. In Martinez v. Law Office of David J. Stern (2001) 266 B.R. 523, the court held: “Upon acting upon a Validation Notice by disputing the debt, a consumer is under no obligation to respond to the complaint until, at the earliest, the debt collector responds with the requested information”. [Emphasis added; see also, 15 U.S.C. §1692g(b)]

VIOLATIONS OF THE FDCP ACT

10. On or about __________________________, 2004, Defendant (NASTY NERDLY or _____?) sent through the United States Mail a ______________________ (collection letter or whatever). Said (correspondence) failed to contain the notice that Defendant was a “debt Collector” or that the (correspondence) constituted an “attempt to collect a debt” or that “any information obtained would be used for that purpose” in violation of 15 U.S.C. §1692e(11).

11. On or about __________________________, 2005, Plaintiff sent through the United States Mail, Certified with a Return Receipt Request, a Notice of Dispute relative to the alleged debt that Defendant was attempting to collect. Attached hereto and made a part hereof is a copy of said Notice of Dispute marked as “Exhibit A.”

12. Defendant (NASTY NERDLY or other debt collector) failed to respond to said Notice of Dispute (or Defendant’s response failed to comply with the statutory requirements of FDCP Act in that it merely said that in the debt collector’s opinion, the FDCP Act did not apply [or some other allegation]).

13. Defendants, despite Plaintiff’s Notice of Dispute, continued their (it’s) collection activities in that they sued Plaintiff (or served Plaintiff with a Notice of Default or Notice of Foreclosure Sale or served Plaintiff with a Summons and/or Complaint or moved the case forward or served discovery requests or whatever else; or continued to send demand letters or called, etc.)

14. All of the foregoing activity constitutes a violation of the FDCP Act 15 U.S.C. § 1692g(b).

15. On numerous occasions, in connection with the collection of the alleged debt, without the prior consent of Plaintiff, Defendants communicated with Plaintiff at times or places that Defendants knew or should have known to be inconvenient to Plaintiff, including his(her) place of employment after Plaintiff informed Defendants that calls at work were inconvenient. These communications are violative of the FDCP Act, 15 U.S.C. § 1692c(a)(1).

16. On numerous occasions, in connection with the collection of the alleged debt, without the prior consent of Plaintiff, Defendants have communicated with third persons, including parents, children, and/or employers, for purposes other than acquiring location information about Plaintiff and when not reasonably necessary to effectuate a post-judgment judicial remedy, in violation of the FDCP Act, 15 U.S.C. § 1692c(b).

17. On numerous occasions, in connection with the collection of the alleged debt, Defendants have engaged in conduct the natural consequence of which is to harass, oppress, or abuse a person, in violation of the FDCP Act, 15 U.S.C. § 1692d, including but not limited to the following:

a) Defendants have used obscene or profane language, or language, the natural consequence of which is to abuse the hearer, in violation of the FDCP Act, 15 U.S.C. § 1692D(2);

b) Defendants have caused a telephone to ring, or have engaged in telephone conversations, repeatedly and continuously, with the intent to annoy, abuse, or harass Plaintiff in violation of the FDCP Act, 15 U.S.C. § 1692d(5).

18. On numerous occasions, in connection with the collection of the alleged debt, Defendants have used false, deceptive, or misleading representations or means, in violation of the FDCP Act, 15 U.S.C. § 1692e, including, but not limited to, the following:

a) Defendants have falsely represented or implied that nonpayment of a debt will result in the arrest or imprisonment of Plaintiff or the seizure, garnishment, or attachment of Plaintiff ‘s wages or property, when such action is not lawful or when neither Defendants , nor the creditor has intended to take such action, in violation of the FDCP Act, 15 U.S.C. § 1692e(4);

b) Defendants have threatened to take action that cannot be legally taken or that Defendants did not intend to take, in violation of the FDCP Act. 15 U.S.C. § 1692e(5).

CIVIL PENALTIES AND INJUNCTION

19. Section 814(a) of the FDCP Act, 15 U.S.C. § 1692k(a)(2)(A) authorizes the Court to award civil penalties of not more than $1,000.00 for each violation of the FDCP Act.

20. Each instance within the five years preceding the filing of this Complaint in which Defendants have failed to comply with the FDCP Act in one or more ways described above, constitutes a separate violation for which Plaintiff seeks monetary civil penalties.

21 Section 814(a) of the FDCP Act, 15 U.S.C. § 1692k(a)(1) authorizes the Court to award actual damages sustained by Plaintiff as a result of a violation of the FDCP Act.

22. Plaintiff has necessarily employed counsel to represent him(her) in this action and has necessarily incurred attorney fees in connection with this representation. Plaintiff requests an award of attorney fees as an element of the damages sustained by Plaintiff herein.

23. Under Section 13(b) of the FDCP Act, 15 U.S.C. § 53(B), this Court is authorized to issue a permanent injunction to ensure that Defendants will not continue to violate the FDCP Act.

24. Plaintiff will suffer irreparable harm if Defendants are allowed to continue to foreclose on his(her) real property (or other threatened collection activity) and therefore seeks an injunction prohibiting Defendants from doing so. Plaintiff has no adequate remedy at law.

PRAYER
WHEREFORE, Plaintiff prays the Court:
1. For judgment against Defendants, and each of them, and in favor of Plaintiff for each violation of the FDCP Act alleged in this Complaint;

2. For an award of monetary civil penalties from each Defendant for each violation of the FDCP Act;

3. For damages according to proof at the time of trial;

4. For reasonable attorney fees;

5. For a permanent injunction enjoining Defendants from further violation of the FDCP Act;

6. For costs of suit incurred herein; and
7. For such other and further relief as the Court deems just and proper.

______________________________
SNOW WHITE
Plaintiff, in pro per

[sadie]

Lot's of good infor to work with.

here's a link to federal rules.
http://www.uscourts.gov/rules/newrules4.html

Look at the rules of civil procedure to see what is required in your complaint and the format needed. I hear Fed courts have some of their own particular forms that you need to fill out. Find out how to serve Sherman.

Also check your state code under corporations and check on foreign corporations as to what is required.

Here a section of the code from Mississippi

SEC. 79-4-15.01. Authority to transact business required.
(a) A foreign corporation may not transact business in this state until it obtains a certificate of authority from the Secretary of State.
(b) The following activities, among others, do not constitute transacting business within the meaning of subsection (a):
(1) Maintaining, defending or settling any proceeding;
(2) Holding meetings of the board of directors or shareholders or carrying on other activities concerning internal corporate affairs;
(3) Maintaining bank accounts;
(4) Maintaining offices or agencies for the transfer, exchange and registration of the corporation's own securities or maintaining trustees or depositories with respect to those securities;
(5) Selling through independent contractors;
(6) Soliciting or obtaining orders, whether by mail or through employees or agents or otherwise, if the orders require acceptance outside this state before they become contracts;
(7) Creating or acquiring indebtedness, mortgages and security interests in real or personal property;
(8) Securing or collecting debts or enforcing mortgages and security interests in property securing the debts;
(9) Owning, without more, real or personal property;
(10) Conducting an isolated transaction that is completed within thirty (30) days and that is not one in the course of repeated transactions of a like nature;
(11) Transacting business in interstate commerce.

As stated here at (b)(8)a foreign corporation can collects debts without registering with the SOS as doing business in this state.
I wouldn't be able to use the argument that they are not registered here, but I would be able to use this code in support of jurisdiction as (b)(1)mentions defending proceedings.

Check the PA code and see what it says.

I'm routing for you.

[PANICPASS]

Even with a well-written complaint be prepared for the Defendant's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, which is practically guaranteed-- no matter HOW on-point the complaint is. If you can overcome a 12b(6) motion, you're in.

And unless you've got a good Opposition to that Motion To Dismiss... the complaint is gone, as fast as it came in.

[PANICPASS]

Even if the Motion to Dismiss is badly written, if you don't know how to respond to it, the court will grant it. The court will not help you out, or give you a break under any circumstances. Pro pers have to rise to level of an attorney, even if the court knows they are not supposed to hold you to the same standards-- they do anyway.

[jaylon]

Thank you all for your input! I'm very greatful. I don't consider myself brave, they broke the law and I exhausted my administrative remedy trying to get them to obey the law and they refused so I'm doing what I feel is necessary. I'm sure they will try to find a way to get out of correcting their commercial dishonor, but I'll keep chipping away until I find a remedy. So how do you find a reply or response for their motion to dismiss? Does Cornforth have any info on this? What book would assist?

[sadie]

jaylon

Sherman Acquisitions has numerous affiliated companies. They keep passing the debt around among themselves. They are known as the Sherman Companies actual name Sherman Financial Group LLC. I have a privacy notice I received from them attached to a collection notice and it lists 16 companies but I think they may have more now. Do a search for the Sherman Companies.

They are cozy. I got notices from NES collecting for Sherman Acquisition LP and when I demanded VOD they sent notice from Superior. Then they sent notice from Alegis Group LP as DC for Sherman Acquisitions II LP. Alegis is one of their companies. Then they sell the debt to a differnt Sherman company and have another one of their companies start harassing you.

I filed a common law complaint against Alegis and Sherman and all affiliates.
They finally stopped bothering me. No notices for a year.

I don't know if you can or should name the company you are dealing with on the complaint and add "and any and all affiliated companies that are part of "The Sherman Companies"

Check all your correspondence and see if it names the same Sherman company.

Anyone else have thoughts on including them all in the complaint?