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SUJING ZHANG v. SOUTHEASTERN FIN. GROUP

September 3, 1997

SUJING ZHANG
v.
SOUTHEASTERN FINANCIAL GROUP, INC., ANDREW J. MCCLURE, ESQ., HAVEN-SCOTT ASSOCIATES, INC., JAMES G. JOHNSON, PNC BANK, N.A., JUDITH LUPINSKI, a/k/a JUDY LUPINSKI, WILLIAM E. DONNELLY, PROTHONOTARY OF THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNA. AND FRANK P. LALLEY, SHERIFF OF MONTGOMERY COUNTY, PENNA.



The opinion of the court was delivered by: WALDMAN

 WALDMAN, J.

 September 3, 1997

 I. BACKGROUND

 In a 230 paragraph amended complaint, plaintiff essentially alleges that the various defendants respectively induced her by fraud to sign an employment services contract and promissory note with a confession of judgment clause, used unlawful means to collect the debt after she failed to pay the amount due on the note, violated her constitutional right to procedural due process by entering a confessed judgment and effecting a writ of execution against her bank account, and failed to protect her exemption of $ 300 from attachment. Plaintiff asserts claims against defendants Haven-Scott, Johnson, Southeastern, McClure and Lupinski ("the Haven-Scott defendants") for alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), 42 U.S.C. § 1983 and the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), as well as a RICO claim against defendants Johnson, McClure and Lupinski. Plaintiff also asserts a claim against defendants Haven-Scott, Johnson and Southeastern for rescission of the service agreement.

 In Count II, plaintiff claims that the individual Haven-Scott defendants violated the RICO statute by engaging for a substantial period in a pattern of mail and wire fraud in executing two related schemes. First, these defendants allegedly misrepresented the nature and quality of Haven-Scott's services to induce persons to sign a service agreement and promissory note. Second, defendants allegedly induced unwary persons to sign notes containing confession of judgment clauses to whom they then misrepresented the law to coerce payments or whose property they seized in violation of due process requirements.

 In Count III plaintiff claims that the Haven-Scott defendants are liable under 42 U.S.C. § 1983 for confessing judgment and executing against her property in violation of due process, the FDCPA and 16 C.F.R. § 444.2.

 In Count IV plaintiff seeks rescissionary relief as to the service agreement and note.

 In Count IV plaintiff claims that the Haven-Scott defendants' deceptive advertisements, misrepresentation of the nature of Haven-Scott's services, inducement to Ms. Zhang to execute the note with a confession of judgment clause and collection of the debt violate the Pennsylvania Unfair Trade Practices and Consumer Protection Law.

 In Count VI plaintiff seeks declaratory and injunctive relief against the Haven-Scott defendants, including a declaration that the promissory notes they use are illegal and unenforceable and an injunction against their further use of such notes.

 Presently before the court are defendants' motion for partial summary judgment and plaintiff's cross-motion for summary judgment. *fn1" The parties respectively contend that certain of plaintiff's claims are and are not barred as a matter of law by res judicata. Plaintiff has withdrawn Count VI, the statutory claims under 42 U.S.C. § 1983 and the claims for damages under UTPCPL for taking or threatening "non-judicial" action against plaintiff by execution on a confessed judgment. Plaintiff has also withdrawn her FDCPA claim to the extent it is based on alleged conduct prior to April 11, 1994. *fn2"

 II. LEGAL STANDARDS

 In considering a motion for summary judgment, the court must determine whether the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and whether the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Arnold Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564, 568 (3d Cir. 1986).

 Only facts that may affect the outcome of a case under applicable law are "material." All reasonable inferences from the record must be drawn in favor of the non-movant. Anderson, 477 U.S. at 256. Although the movant has the initial burden of demonstrating the absence of genuine issues of material fact, the non-movant must then establish the existence of each element on which it bears the burden of proof. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)), cert. denied, 499 U.S. 921 (1991).

 III. Facts

 The pertinent facts as uncontroverted or taken in a light most favorable to ...


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