HomeMy WebLinkAbout03-2981IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
MILL CREEK BANK, INC.,
Plaintiff,
oa
VS.
COMPLAINT
WARREN W. MORRISON,
CODE: 026 Replevin
Defendant.
Filed on behalf of Plaintiff
Counsel of Record for this Party:
Timothy P. Palmer, Esquire
Pa. I.D. No. 86165
BUCHANAN INGERSOLL
PROFESSIONAL CORPORATION
One Oxford Centre
301 Grant Street, 20th Floor
Pittsburgh, PA 15219-1410
Finn I.D. No. 0038
(412) 562-8413
1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
MILL CREEK BANK, INC., )
)
Plaintiff, )
)
) CODE: 026 Replevin
WARREN W. MORRISON, )
)
)
Defendant. )
NOTICE TO DEFEND
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 and notice are
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 you and a judgment may be entered against you by the
court 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.
Please contact the following:
Cumberland County Bar Association
Two Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
MILL CREEK BANK, INC., )
)
Plaintiff, )
)
VS. )
) CODE: 026 Replevin
WARREN W. MORRISON, )
)
)
Defendant. )
HEARING NOTICE
YOU HAVE BEEN SUED IN COURT. The above Notice to Defend explains what you
must do to dispute the claims made against you. If you file the written response referred to in the
Notice to Defend, a hearing before a board of arbitrators will take place in
located at , at
· IF YOU FAIL TO FILE THE RESPONSE DESIRED
IN THE NOTICE TO DEFEND, A JUDGMENT FOR THE AMOUNT CLAIMED IN
THE COMPLAINT MAY BE ENTERED AGAINST YOU BEFORE THE HEARING.
DUTY TO APPEAR AT ARBITRATION HEARING
If one or more of the parties is not present at the heating, THE MATTER MAY BE
HEARD AT THE SAME TIME AND DATE BEFORE A JUDGE OF THE COURT
WITHOUT THE ABSENT PARTY OR PARTIES. THERE IS NO RIGHT TO A TRIAL DE
NOVO ON APPEAL FROM A DECISION ENTERED BY A JUDGE.
NOTICE: YOU MUST RESPOND TO THIS COMPLAINT WITHIN TWENTY (20) DAYS
OR A JUDGMENT FOR THE AMOUNT CLAIMED MAY BE ENTERED AGAINST YOU
BEFORE THE HEARING. 1F ONE OR MORE OF THE PARTIES IS NOT PRESENT AT
THE HEARING, THE MATTER MAY BE HEARD IMMEDIATELY BEFORE A JUDGE
WITHOUT THE ABSENT PARTY OR PARTIES. THERE IS NO RIGHT TO A TRIAL DE
NOVO ON APPEAL FROM A DECISION ENTERED BY A JUDGE.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
MILL CREEK BANK, INC., ) ~ ~
)
Plaintiff, ) 03 ~' oq.q ~'t
) AR
VS. )
) CODE: 026 Replevin
WARREN W. MORRISON, )
)
)
Defendant. )
COMPLAINT
PlaintiffMill Creek Bank, Inc. ("Plaintiff), by and through its undersigned attorneys,
Buchanan Ingersoll Professional Corporation, files the within Complaint, averring as follows:
PARTIES
1. Plaintiffis qualified to do business in the Commonwealth of Pennsylvania, and
maintains a place of business at T302, 7360 S, Kyrene Tempe, Arizona 85283.
2. Plaintiff was formerly known as Conseco Ba~, Inc. which was formerly known
as Green Tree Retail S~rvices Bank, Inc.
3. By Assignment and Assumption Agreement dated as o£ June 26, 2001, Plaintiffis
thc assignee of all rights of Transamerica Bank N.A. and Transamerica Retail Financial Services
Corporation (collectively "Transamerica") under Transamerica's financing program associated
with various Honda entities.
4. Defendant WARREN W. MORRISON ("Defendant") is an individual who, upon
information and belief, resides at 12 Marshall Drive, Apt. t-3, Camp Hill, PA 17011
('Residence').
BACKGROUND
1. Defendant purchased the following property with financing provided by Plaintiff:
Motomycle, Make: Honda, Model: VFR750F, Year: 1996, V1N#: JH2RC360XTM600598 (the
"Collateral").
2. Defendant participated in Plaintiffs "Transamerica Bank, N.A." program, a copy
of Defendant's credit application is attached as Exhibit A.
3. Defendant executed a sales slip ("Sales Slip") for the purchase of the Collateral.
A copy of the Sales Slip is attached as Exhibit B.
4. As is further set forth in the 'Sales Slip, Defendant agreed that the financing
provided by Plaintiff was subject to the terms and condition of the Cardholder Agreement and
Disclosure Statement for the Transamerica Bank, N.A. ("Agreement"). A copy of the Agreement
is attached as Exhibit C.
5. Plaintiff has a purchase money security interest in the Collateral.
6. Defendant agreed to the following terms under the Agreement ("you" refers to
Defendant and "us" refers to the Plaintiff):
You promise to pay all amounts owed to us under the terms of this
Agreement.
(Exhibit C, ~[ 2).
Each cycle you agree to pay us at least the minimum monthly payment
reflected on your periodic statement.
(Exhibit C, ~[ 4).
·.. you hereby grant to us and we are retaining a purchase money security
agreement under the Uniform Commercial Code in the merchandise
purchased on your Account until such merchandise is paid in full. If the
goods purchased is a motor vehicle you hereby grant to us and we retain
the motor vehicle purchased on your Account until the motor vehicle is
paid in full. You agree to assist us in executing any documents necessary
to perfect our security interest. If you do not make a minimum monthly
payment due on your Account by the applicable payment due date, we
may repossess any merchandise which as not been paid for in full,
including any merchandise purchased under a Major Purchase Plan.
(Exhibit C, ~[ 11).
You agree to pay us any attorneys' fees and collection costs we incur in
connection with your Account.
(Exhibit C, ~[ 12).
... you will be in default under this Agreement upon (a) your failure to
make at least the Minimum Monthly Payment when due...
Upon default.., we have the fight to (a) terminate your credit privileges
under this Agreement; (b) require you to pay your entire Account balance,
including Special Payment Plan balances, all accrued but unpaid Finance
Charges, and all fees and other amounts owed; and/or (c) repossess any
merchandise on which we retain a perfected security interest.
(Exhibit C, ~] 14).
7. Defendant has defaulted under the terms of the Agreement by failing to make the
Minimum Monthly Payments when due.
8. Pursuant to paragraph 14 of the Agreement, the failure of the Defendant to make
these payments in a timely manner constitutes an event of default.
9. Pursuant to paragraph 14 of the Agreement, as a result of Defendant's default,
Plaintiff is entitled to collect the entire Account balance, including Special Payment Plan
balances, all accrued but unpaid Finance Charges, and all fees and other amounts owed.
10. Pursuant to paragraph 14 of the Agreement, as a result of Defendant's default,
Plaintiff is entitled to repossess the Collateral.
11. As of March 21, 2003, Defendant's account with Plaintiff was 195 days past due.
The total balance due on the account as of March 21, 2003 is $6,501.50. The agreed upon
interest rate for the account is 18.99% APR.
3
12. Upon information and belief, the Defendant either has possession of the Collateral
or knows of the location of the Collateral.
COUNT I -- REPLEVIN
14. Plaintiff incorporates by reference all prior paragraphs as if fully restated herein.
15. Plaintiff was granted a purchase money security interest in the Collateral.
16. Pennsylvania law and the Agreement authorize Plaintiff to repossess the
Collateral upon the occurrence of an event of default.
17. Upon belief, the Collateral is presently located at the Residence.
18. Upon information and belief, the fair market value of the Collateral assuming that
it is undamaged, is estimated to be $6,699.00.
19. Plaintiff has decided to repossess the Collateral and is entitled to have Defendant
assemble and make such Collateral available for removal.
20. Plaintiff has demanded the immediate possession of the Collateral, but Defendant
has failed and refused to allow Plaintiff to obtain possession of the Collateral.
21. Plaintiff is entitled to the immediate possession of the Collateral.
COUNT II -- BREACH OF CONTRACT
22. Plaintiff incorporates by reference all prior paragraphs of the Complaint as if fully
restated herein.
23. Defendant has breached the Agreement by failing to:
(a) pay monthly installments to Plaintiff as they have become due;
(b) assemble the Collateral and make it available to Plaintiff so that Plaintiff
can obtain possession, custody and control of the Collateral.
24. Plaintiff has complied with all of its obligations under the Agreement.
4
25. There is now due and owing from Defendant to Plaintiff on account of such
financing the stun of $6,501.50 as of March 21, 2003, and interest accruing thereafter at the
contract rate of 18.99% APR.
26. Pursuant to the Agreement, Defendant is obligated to pay Plaintiffs costs and
expenses incurred in the collection of the balance of Defendant's obligation, including without
limitation actual expenditures for reasonable attorneys' fees and legal expenses incurred herein,
and in enforcing Plaintiffs rights and remedies. Plaintiffhas been required to retain the services
of an attorney to represent it in this proceeding, and is entitled to recover its court costs and
reasonable attorneys' fees herein.
COUNT III -- ACCOUNT STATED
27. Plaintiff incorporates by all prior paragraphs of the Complaint as if fully restated
herein.
28. By virtue of Plaintiffs acceleration of the balance of Defendant's obligation due to
his default under the Agreement, Plaintiff has stated an account.
29. To date, Defendant has refused to pay to Plaintiff the total amount that is due and
owing.
COUNT IV -- UNJUST ENRICHMENT
30. Plaintiff incorporates by reference all prior paragraphs of the Complaint as if fully
restated herein.
31. Plaintiff financed Defendant's purchase of the Collateral with the expectation that
Defendant would repay all amounts advanced and pay finance charges.
32. Defendant has not repaid all amounts that Plaintiff advanced to Defendant to
purchase the Collateral.
5
33. Defendant also has not paid all of the finance charges associated with the
financing described above.
34. It would be unjust to allow Defendant to retain the financial benefits and
possession of the Collateral that Defendant derived only by virtue of Plaintiffs financing.
PRAYER FOR- RELIEF
WHEREFORE, Plaintiff demands judgment in its favor and against Defendant as
follows:
(a)
(b)
(c)
(d)
Dated: June 18, 2003
the possession and delivery of the Collateral;
the outstanding balance due under the Agreement in the amount of
$6,501.50 plus interest accruing after March 21, 2003 at the contract rate
of 18.99% APR.
an amount equal to the costs, expenses and reasonable attorneys' fees
incun'ed by Plaintiff in recovering the above-described Collateral and in
enfoming its rights and remedies under the Agreement; and
such other relief as the Court deems just and proper.
BUCHANAN INGERSOLL
PROFESSIONAL CORPORATION
Timothy P. Palmer
Pa. I.D. No. 86165
One Oxford Centre
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
(412) 562~8413
Attorneys for PlaintiffMill Creek Bank, Inc.
330090-I ;PGH 1
Exhibit A
· Or. ancing-
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Exhibit B
BAtik- iNC. * --~RGE ~CK~ - $5,000 and over
CONSECO
SELLER*S NAME =...L~ ~-~ _ - ..........
ii'
Exhibit C
Cafifomio, Ohio, New York. Wisconsin residents, p~ease review attached disclosure for specific information.
Joint Applicant
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CARDHOLDER AGREEMENT AND DISCLOSURE STATEMENT
Anuual Percentage Rate for
Balan~
Other Ralel
The folbwing Annual Pe~aiage Ram apply as of October 1, 2Q01. Regular Pncc~es and Special Payment Pinna
19.74%(]9.?,~ ruinimuml, Regular Purchases and Special Payment Plans $'),000.01-$5,000 !6.74% ~6.7,~ minimuml
Maio,~,~ P[~s9.24%-21.49%
~ followthg Annual Peieentage Rates apply as of October I, 2O01. Cash Advances 21.90% 121.~% minimum)
~arlnMe Pate Information
Yom' APR f~' pncch~s may vary. Tnt APR is based on Ihe highest prime rate pubiisl'~d in the 'Money Rates" section tithe Wall
$1~:~1 Journg on thc Et business day of ~ month plus a margin. The following Margins cnrrenlly apply:
Purchas~ $0-$Z[~00 1.).24go, ~u~:hases $2 Jg0.01-g5,0~0 9.247q Maj~ Pncche~ Plans 2.24~14.49~, Cash Adr'an~s 12.247,.
Gr~'e Period for R~uyment
of the Balances for Pm:lmaes
Minimum R~a~ra Charge
Uelhod ur Computing the
Balance for Purc~
Tranaactlon Fee for Access
Checks, Cash AdYances, or
ArM Transactlo~s; Lale, Over
Umit and Return Check
Finance C'narges ac'cxan from the d~le of purchese. You have ~ days fram b~e Slatement Closing Date for thai Cycle. to pay the
New Balanct in full hefme a Finance Charge is imposed anfibutable to that New Balance.
$30 (on balances in any billing cycle t~ a Finance Charge is dna).
Average Daily Balance (including anw purchases)
Access ~nck, Cash Advance, or ATM Transaction - $3.00 nc 3% of transaction amount, whichever is greater.
Lac Fee: $301515 in IA)
Over Limit Fee: $30 {$15 in IA)
Returned Check Fee: $30 ($.)0 in lA)
Account is ctn~sidered delhtqnent after a nlinhmol~ payment is not ,tade ft~r two colmac,tire billing Q'cles mtd will dlsq,al~, ytnt for eligihiliO~ fi ;
Rt~.htr PttMmse C~h A&~nce and Special ~e.t Plan p~cing for a ndnbnton ~sL~ m~ahs.
J~dN
2003 14:14 FR BUCHANAN IN6ERSOLL 716
854 4227 TO 14125621047. P.05
5EIN 18 2003 14:15 FR BUCHANAN INGERSOLL
,.~ lip[t-04-200] [[~! 10:45 AI~ OOl~$~.O0 FIHA~-
715 854 42~7 TO 14125521041
P.05
VERIFICATION
~ ~~ ~,an authorized r~resentative of Plaintiff ve~ that ~ have
read the foregoing Complaint, that I am authorized to make this Verification on Plaintiffs behalf,
and that the statements of fact therein are tree and correct to the best of my knowledge,
information and belief.
I understand that this Verification is made subject to the penalties of 18 Pa. C.S. § 4904
relating to unswom falsification to authorities.
Dated: May 13, 2003
SHERIFF'S RETURN -
CASE NO: 2003-02981 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF~CUMBERLAND
MILL CREEK BANK INC
VS
MORRISON WARREN W
REGULAR
JASON VIORAL ,
Cumberland County, Pennsylvania,
says, the within COMPLAINT - REPLEVIN
MORRISON WARREN W
DEFENDANT , at 1944:00 HOURS, on the
at 12 MARSHALL DRIVE APT
CAMP HILL, PA 17011
WARREN MORRISON
a true and attested copy of COMPLAINT
Sheriff or Deputy Sheriff of
who being duly sworn according to law,
was served upon
the
8th day of July , 2003
I-3
by handing to
- REPLEVIN
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 10.35
Affidavit .00
Surcharge 10.00
.00
38.35
Sworn and Subscribed to before
me this J~ day of
So A_rlswers:
R. Thomas Kline
o7/o9/2oo3
ty Sheriff