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Donnachie v. Frank S. Falzone & Assoc.

August 11, 2010


The opinion of the court was delivered by: Hon. Sylvia H. Rambo


Before the court is Defendant FFD Resources I, LLC's ("FFD") motion to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 5.) For the reasons that follow, the motion will be granted in part and denied in part..

I. Background

A. Facts*fn1

Plaintiff, Douglas Donnachie, is an adult citizen living in Lebanon, Pennsylvania. Defendant FFD is a Nevada Limited Liability Company which offers "deferred deposit transactions," also known as "payday loans," to consumers over the internet. FFD also does business under the name "Cash Supply," as this is the name Plaintiff uses throughout his complaint, the court will use it as well.

As some point prior to 2008, Plaintiff obtained a payday loan from Cash Supply. Although Plaintiff intended to repay this loan, the interest accrued too quickly for payments to be feasible. When Plaintiff failed to make payments on his loan, Cash Supply first attempted to collect the loan in-house. When this failed, Cash Supply sent Plaintiff's account to various debt collection agencies. Sometime around October of 2008, Plaintiff was contacted by Accounts Receivable Management of Florida ("ARM"), a company claiming to be collecting on behalf of Cash Supply. The following month, Plaintiff sued ARM for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. Around April of 2009, the parties settled this suit with the agreement that ARM was to pay Plaintiff's debt to Cash Supply in full.

In 2009, Plaintiff contacted the Debt Relief Network ("DRN") to help him repay his outstanding debts. On September 16, 2009, AIS Services, LLC ("AIS") contacted DRN about negotiating a settlement for the debt Plaintiff owed to Cash Supply. At this time, DRN was not aware that Plaintiff had already settled this debt and had been relieved of any legal obligation to Cash Supply. As such, DRN agreed to settle the debt with AIS, and withdrew the funds from Plaintiff's debt settlement escrow account. Around December of 2009, Plaintiff sued ARM again and again ARM was to pay the debt in full to Cash Supply.

On January 11, 2010, an agent who worked for Defendant Frank S. Falzone and Associates, PLLC ("Falzone") contacted Plaintiff's father-in-law and told him Plaintiff had an outstanding debt with Cash Supply. During this phone call, the agent mentioned both "legal prosecution" and "pending legal action" should Plaintiff fail to contact Falzone immediately. That same day, Plaintiff called Falzone and spoke to an individual named Todd Gullo. Plaintiff explained to Mr. Gullo that he no longer owed a debt to Cash Supply, and explained the circumstances surrounding the discharge of that debt and provided the name and number of the attorney who had represented him in that litigation. Plaintiff also explained his disapproval of Falzone contacting his father-in-law and divulging personal information about Plaintiff. Mr. Gullo told Plaintiff he could call anyone listed on the contract and than stated "Now, do you want to know what the hell this is about." Plaintiff has the same number that was listed on the original contract with Cash Supply, however, Falzone chose to contact his father-in-law who is only listed as a reference. Subsequent to this phone call, Falzone never made any attempt to contact Plaintiff's attorney to ask about the discharge of the debt to Cash Supply.

On January 18, 2010, Defendant Falzone called Plaintiff's home phone and again attempted to solicit payment of the loan. Plaintiff again explained that he was represented by an attorney and was upset that he was still being contacted about the alleged debt.

B. Procedural History

On February 25, 2010, Plaintiff field his complaint alleging that Cash Supply violated the Fair Credit Extension Uniformity Act, 73 Pa. Cons. Stat. § 2270.1 et seq. ("FCEUA") and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. Cons. Stat. § 201-1 et seq. ("UTPCPL"). In addition, Plaintiff brings state common law claims of negligence and false light invasion of privacy.

On June 14, 2010, Cash Supply, filed this motion to dismiss and brief in support. (Docs. 5, 6.) On July 2, 2010, one day past the time allowed by the court's local rules, Plaintiff filed a one-page response to the motion. (Doc. 13.) Assuming this to be Plaintiff's brief in opposition to the motion, on July 16, 2010, Defendant filed their reply brief. (Doc. 15.)

On July 21, 2010, without any explanation to the court, and clearly well beyond all deadlines, Plaintiff filed a brief in opposition to the motion. (Doc. 16.) On July 17, 2010, the brief in opposition was stricken from the record as it was filed untimely and without any explanation to, or ...

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